Oklahoma charter school board spurns high court order to cancel religious charter school contract

The Statewide Charter School Board met for the second time Tuesday, voting to join an appeal to the U.S. Supreme Court over a religious virtual charter school contract. (Photo by Kennedy Thomason/Oklahoma Voice)

OKLAHOMA CITY – A new state board continued where its predecessor left off Tuesday and refused to comply with an Oklahoma Supreme Court order to rescind the contract of what would have been the nation’s first publicly funded religious charter school, but the decision doesn’t mean taxpayers will be funding a Catholic education anytime soon. 

The Statewide Charter School Board instead voted 7-2 to join St. Isidore of Seville Catholic Virtual School’s legal strategy to attempt to appeal the decision to the nation’s highest court, which still may be a longshot. 

Supporters and opponents of publicly funding the Catholic school both say they are fighting for religious liberty.

The board also voted to terminate its relationship with the Attorney General’s Office, which provides its legal counsel. Chairman Brian Shellem and board member Ben Lepak said there’s a conflict of interest because Attorney General Gentner Drummond is representing the plaintiffs, who successfully sued to block the school from opening.

Drummond panned the board’s decision on Tuesday, saying the board’s actions demonstrated “blatant hostility toward religious liberty.” He also filed a motion with the Oklahoma Supreme Court on Tuesday afternoon seeking to compel compliance. He requested the Court make clear that board members could face a “contempt citation” if they continue to refuse to follow the order. 

The state Supreme Court ruled last month that operating a state-funded religious charter school is unconstitutional, and it ordered the board to rescind St. Isidore’s contract. The majority of justices ruled using public dollars to fund the school would violate a state and federal prohibition against government-established religion. The school planned to teach Catholic doctrine and require students to attend Mass.

The decision blocked St. Isidore from opening. The school has said more than 200 students had applied. They said the school won’t open to students until at least the 2025-2026 school year.

St. Isidore supporters – including Republican Gov. Kevin Stitt – have vowed to “continue to fight” and said they plan to request a review from the U.S. Supreme Court. 

Shellem said though there are differing legal opinions on the case, St. Isidore’s contract is about educating students, not about the school becoming a “state actor.” 

“I think most of the board feels that the dissenting opinion is what, really, we feel as a country, that certain groups should not be discriminated against, especially if you have the skills to perform the contract,” Shellem said.  

Shellem said he does not want to “short circuit” the legal process.

Earlier this month, Shellem said the board planned to comply with the Oklahoma Supreme Court order, but he said it was waiting on a decision from the Oklahoma Supreme Court about whether the charter contract would be preserved in the event the nation’s highest court considers it. The state Supreme Court has not ruled on the request.

“We do respect the top law enforcement agency in the state, we respect the Supreme Court, we will honor their orders,” Shellem said. “If the Supreme Court had said, ‘Immediately rescind this contract,’ the board would have already taken action, but there is a legal process.”

The predecessor to this board – Oklahoma Statewide Virtual Charter School Board, which had its last meeting in June – also voted against rescinding St. Isidore’s contract. 

Even with the board’s involvement, the case is not guaranteed to be heard before the U.S. Supreme Court. Justices are asked to review more than 7,000 cases each year, but typically only consider about 100 to 150. 

Oklahoma’s attorney general said in a statement that he is committed to defending Oklahomans’ religious freedom. 

“Every Oklahoman should be outraged by the board’s blatant hostility toward religious liberty,” he said. “Rather than acting to protect religious liberty, they are recklessly committed to using our tax dollars to fund radical religious teachings like Sharia law. I will continue to protect the religious liberty of all four million Oklahomans by upholding their constitutional rights.”

Oklahoma Superintendent Ryan Walters, who is a voting member of the board and made his first appearance in that role Tuesday, voted to leave the contract intact. He said the Christian faith is “under assault” nationwide and that some Oklahoma leaders have made it clear they prefer atheism in schools. 

“As a matter of fact, I think the families of Oklahoma have spoken loudly and clearly that they want their religious liberties protected,” Walters said. “They want school choice. They want to be able to choose the school that meets the needs of their kids. So I believe for the families of Oklahoma, it is essential that we challenge [the] Oklahoma Supreme Court, we advance this issue to the U.S. Supreme Court on the basis of protecting religious liberty and protecting those school choice options of families of Oklahoma.”