Oklahoma's law barring public charter schools from being run by sectarian or religious organizations could be a violation of the First Amendment, according to an opinion from Oklahoma Attorney General John O'Connor.
O'Connor cites recent Oklahoma and U.S. Supreme Court rulings to argue that the state can't allow some private entities to receive state funds for charter schools, but bar others based on their religious status. The opinion states it is advisory only until determined binding by an Oklahoma federal district court.
The opinion was in response to Rebecca Wilkinson, executive director of the Statewide Virtual Charter School Board, who had asked the attorney general's office if her board should continue to enforce the nonsectarian requirements in light of the Supreme Court ruling in three different states that it's unconstitutional to exclude religious entities from benefiting from public benefit programs relating to pre-K, primary or secondary schools.
“Under Trinity Lutheran, Espinoza, and Carson, it seems obvious that a state cannot exclude those merely ‘affiliated with’ a religious or sectarian institution from a state created program in which private entities are otherwise generally allowed to participate if they are qualified,” O'Connor and Solicitor General Zach West said in the opinion. “And that is exactly what this provision does.”
Current law requires a “charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations,” and that a “sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”
The change, if held up in court, wouldn't mean a free-for-all when it comes to how charter schools are operated, the opinion clarifies.
"Just because the provision prohibiting charter schools from being sectarian 'in its programs, admission policies, employment practices, and all other operations' is likely unconstitutional does not mean that religious or religiously affiliated charter schools can necessarily operate however they want in regard to 'programs, admission policies, employment practices,' and the like," the opinion states.
What Supreme Court rulings did AG John O'Connor cite?
In Trinity Lutheran Church of Columbia Inc. v. Comer, the U.S. Supreme Court said in 2017 it was discriminatory and "odious" to the U.S. Constitution when the state of Missouri denied a grant to the Trinity Lutheran Church Child Learning Center to install softer playground surfaces made from recycled tires.
According to O'Connor's opinion, Missouri was relying on a state constitutional provision stating "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion."
In Espinoza v. Montana Department of Revenue, the high court evaluated a Montana program that gave tax credits for sponsoring a scholarship for a child's tuition at any private school. The Montana Department of Revenue cited a state constitutional provision prohibiting government aid to any "sectarian" school to keep families from using these scholarships at schools "owned or controlled in whole or in part by any church, religious sect, or denomination."
“A State need not subsidize private education,” the Court said in the 2020 ruling. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
A similar ruling was applied to Carson v. Makin in June 2022, when a Maine program for tuition assistance was excluding private religious schools.
"Maine’s decision to continue excluding religious schools from its tuition assistance program ... promotesstricter separation of church and state than the Federal Constitution requires," the Court said. "But a State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."
The Oklahoma Education Association said in a statement that these Supreme Court decisions "are not contextually similar" to the idea of an Oklahoma charter school receiving public funding while also "requiring affirmation of particular religious tenets and doctrine as a condition of admission."
Oklahoma citizens' intent that public schools "be free from sectarian control" is clearly expressed in the state constitution and statutes, the association said. Oklahoma voters rejected a state question in 2016 that would have removed the state law prohibiting from using public money or property for the direct or indirect benefit of any religion or religious institution.
Does this mean religious organizations can now apply to run charter schools?
The "charter school doors have been opened" for sectarian and religious organizations, O'Connor said in a statement, "by recent decisions of the U.S. Supreme Court."
Although the opinion is advisory only, according to the attorney general's website, O'Connor said "the Legislature is free to act, as always, but our opinion is our public guidance saying we do not think these prohibitions should be enforced going forward."
"The predictions suggested by the Oklahoma Attorney General are exactly that — predictions by a political figure of how a court may rule if faced with that legal question," the Oklahoma Education Association said. "We suggest letting a court of competent jurisdiction decide the matter first."
Wilkinson, the virtual charter school board's executive director, first requested an attorney general opinion after receiving a letter in November 2021 from the Archdiocese of Oklahoma City stating its intent to submit an application to operate a virtual charter school.
The letter, signed by Oklahoma City Archbishop Paul Coakley, cited the three Supreme Court cases that O'Connor also cited in his opinion and urged the board not to deny its application or bar other religious organizations from operating virtual charter schools.
"A virtual Archdiocesan charter school would be a valuable addition to help improve opportunities for students in this rapidly growing, yet still struggling, area of education," Coakley wrote in the letter.
The Oklahoma State Department of Education declined to comment on the opinion.
Gov. Kevin Stitt and others praise AG's opinion on religious charter schools
The opinion, released Thursday, received praise from Gov. Kevin Stitt and his incoming Secretary of Education and State Superintendent-elect Ryan Walters.
"Attorney General John O’Connor’s opinion rightfully defends parents, education freedom, and religious liberty in Oklahoma," Stitt said in a statement. "Ultimately, government takes a backseat to parents who get to determine the best learning environment for their child."
"This is the right decision for Oklahomans," Walters said on Twitter. "Religious freedom is foundational to our state and students. There’s never a more important decision than to protect one’s religious liberties."
Jennifer Carter, senior advisor for Oklahoma's chapter of the American Federation for Children, said the opinion is in the "spirit of what charter schools are meant to be: free public schools that offer tailored experiences to students in addition to those available in traditional public schools."
Coakley, archbishop of Oklahoma City, and the Rev. David Konderla, bishop of Tulsa and Eastern Oklahoma, thanked the attorney general in a joint statement.
The Catholic Church, they wrote, is invested in education's progress and understand its role in forming the next generation. The ability for religious organizations to operate charter schools will benefit the "disadvantaged youth" of Oklahoma, they said.
"All young people, no matter their economic background, should be provided educational opportunities that form them into well-rounded adults and help them reach their God-given potential," Coakley and Konderla said.
This article originally appeared on Oklahoman: Oklahoma AG releases opinion on religious charter schools