Legal fight over Oklahoma Catholic charter school draws help from national groups

The two sides squaring off over public funding for a Catholic charter school in Oklahoma have lawyered up.

Already, 27 attorneys from six states and Washington, D.C., have signed on for the battle, which is in Oklahoma County now but may ultimately head to the U.S. Supreme Court.

Several of the attorneys represent national groups that have been fighting in courts for decades over church-state issues. The Oklahoma case offers them a chance to test the question of whether a publicly funded Christian school would be an arm of the state — a “state actor,” in the legal parlance. The answer could have impacts well beyond Oklahoma's borders.

The case also thrusts St. Isidore, the virtual charter school envisioned by the Archdioceses of Oklahoma City and Tulsa, into the overlapping national debates about politics, culture and education.

“Charter schools are public schools and they must welcome and serve all students,” said Jessica Levin, acting litigation director for the Education Law Center, one of the groups whose attorneys are fighting against the use of taxpayer money for the Catholic school.

“But St. Isidore plans to discriminate based on characteristics such as religion and sexual orientation and has not shown it would properly serve students with disabilities. We are committed to standing up against any attempts to allow public schools to discriminate," Levin said.

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The Education Law Center, like the other national groups involved in the case on both sides, is providing its services without cost to the parties.

“We never charge our clients a dime to defend them in court,” said Phil Sechler, senior counsel for Alliance Defending Freedom, which is defending the state’s virtual charter school board in its decision to approve St. Isidore.

Alliance Defending Freedom attorneys, along with Oklahoma City attorney Cheryl Plaxico, submitted a written brief in the case last week arguing that the challenge to St. Isidore is premature since the school hasn’t signed a contract with the virtual charter school board and no school policies have been enacted. Also, the people challenging the approval of St. Isidore “have not credibly alleged any harm from the board’s actions,” the brief states.

How St. Isidore became the first religious charter school to be approved in the nation

The Oklahoma Virtual Charter School Board in June approved, by a vote of 3-2, the application of the state’s Catholic Church leaders to receive public funding to create the St. Isidore of Seville Virtual Catholic Charter School.

It was the first such approval in the nation and was immediately denounced by Oklahoma Attorney General Gentner Drummond as a violation of the state’s constitution.

“In doing so, these members have exposed themselves and the State to potential legal action that could be costly,” Drummond said then.

The attorney general’s office has indicated it is monitoring the situation and weighing its options.

A challenge from private citizens was filed in district court on July 31 by a group called the Oklahoma Parent Legislative Action Committee; individual parents with specific concerns about discrimination; three current or former ministers; and the leader of the Oklahoma Rural Schools Coalition. They are represented by attorneys from a law firm in Norman, the ACLU, Americans United for Separation of Church and State, the Education Law Center and the Freedom from Religion Foundation.

The defendants are the members of the virtual charter school board; the Oklahoma State Department of Education; state schools Superintendent Ryan Walters; and St. Isidore, the virtual charter school.

Because of Drummond’s opposition to funding the school, the attorney general’s office is not defending the school board, the state department or Walters. Private attorneys in Oklahoma and lawyers with Alliance Defending Freedom, the First Liberty Institute and Notre Dame Law School are representing them.

'No public money'

Virtual schools are ones in which most instruction is offered online. A charter school is one that receives public funding but is created under a “charter,” or contract, that allows for some flexibility in operations.

The legal challenge to St. Isidore says the school “will operate in ways that are prohibited by the Oklahoma Constitution, the Charter Schools Act, and the board’s regulations, including by using state funds in an unconstitutional and unlawful manner and to support its unconstitutional and unlawful operations.”

The state constitution includes a provision, Article II, Section 5, that states, “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

The Oklahoma Supreme Court cited the provision in 2015 in ruling that a monument bearing the Ten Commandments could not be placed on the grounds of the state Capitol.

Attorneys for St. Isidore countered last week, saying in a written brief, “Text and precedent make plain that neither Article II, Section 5’s funding prohibition nor any other provision of the Oklahoma Constitution bars the State from funding St. Isidore. And both the Oklahoma Religious Freedom Act and the U.S. Constitution’s Free Exercise Clause prohibit Oklahoma law from excluding a private religious entity like St. Isidore from the generally available program created by the Oklahoma Charter Schools Act.”

Oklahoma State Department of Education Superintendent Ryan Walters defends public funding for St. Isidore

Attorneys for the school, the state Department of Education, the state superintendent and St. Isidore argue strenuously that religious schools are allowed to get public money. Oklahoma funds public schools with state and local aid and federal dollars.

“Withholding funds from St. Isidore because it is religious while distributing state aid to secular charter schools is hostility to religion that neither the Oklahoma Constitution nor the United States Constitution will tolerate,” according to the brief filed by attorneys for the state Department of Education and Superintendent Ryan Walters.

But if it was that clear cut, advocacy groups wouldn’t be deploying legions of lawyers to Oklahoma to argue over a proposed virtual charter school run by Catholics.

If the preliminary hurdles are cleared for the private plaintiffs — in terms of their standing to bring their claims and whether those claims are ripe — the case could turn on whether St. Isidore, as a party to a contract with the state and receiving public education aid, is determined to be a state actor.

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The parents and others challenging the board’s decision claim St. Isidore would be a state actor and strictly prohibited from the kind of religious instruction and activity that would be part of the operation.

“Charter schools in Oklahoma, including St. Isidore, are public schools, governmental institutions, and state actors under state law therefore are bound by and must comply with provisions of the Oklahoma Constitution,” the lawsuit says.

Attorneys defending St. Isidore and the state players contend that funding and regulating the school doesn’t make it an arm of the state.

The “guarantees of the federal Constitution do not turn on what Oklahoma law labels charter schools,” attorneys for St. Isidore responded.

“Rather, whether the operation of a charter school is private conduct protected by the Free Exercise Clause turns on how those schools are actually run and who is responsible for their day to day affairs — private groups or the government itself.

“The answer here is plainly the former. Neither St. Isidore nor any other privately operated charter school in Oklahoma is a state actor under the U.S. Constitution, and no statutory label can change that fact.”

This article originally appeared on Oklahoman: National groups join legal fight in Oklahoma religious charter school