Can Charter Schools be Religious? (With Phil Sechler)

MUSIC Thanks for joining us this week for Family Policy Matters. Charter schools have been an integral part of the growth of school choice in many states across the country. As public schools, the understanding has historically been that charter schools must be non-religious environments. But that assumption is being challenged by a lawsuit out of Oklahoma that the U.S. Supreme Court has made.

will be considering this year. The Alliance Defending Freedom, or ADF, is representing the Oklahoma Statewide Charter School Board in their defense of a decision to approve the nation's first religious charter school, St. Isidore of Seville Catholic Virtual School. We're joined today by ADF Senior Counsel and Director of the Center for Free Speech at Alliance Defending Freedom Phil Seckler. Welcome to Family Policy Matters. Thank you, Tracy. It's nice to be here. All right.

Well, interesting story. St. Isidore is a Catholic school and was approved as a charter school. So how did that come about that it was approved in the first place? St. Isidore started as an organization formed by the Archdiocese of Oklahoma City and the Diocese of Tulsa, and they started St. Isidore. They sent a letter to the statewide virtual charter school board of Oklahoma, which was responsible for all online charter schools, and St. Isidore was going to be a virtual school. And they indicated that they wanted to take advantage of the Oklahoma program for virtual charter schools. The board, of course, had a provision in its governing statute that said that schools could not be affiliated with a religious organization or have a religious program, so they contacted the attorney general of the state of Oklahoma, asked the attorney general for advice, and the attorney general wrote that the restriction on religious organizations was likely unconstitutional and couldn't be enforced.

In light of three Supreme Court cases that have been coming down the last few years indicating the state cannot discriminate against a religious group in programs that offers to other private groups. So then, as St. Isidore is getting its application to be a charter school together, that attorney general loses an election and a new attorney general comes in and withdraws that opinion. In any event, the application is submitted. The board takes a very hard look at it, actually rejects the first application because of some concerns about the educational program.

They have a robust back and forth. St. Isidore revises the application, a very lengthy application, very robust criteria, a lot of process in approving the application. And finally, the board concluded, even though the new attorney general came in and withdrew the prior advice, that they could not discriminate against St. Isidore because it's Catholic.

They needed to evaluate it the same way it would evaluate any other applicant. And because this was a very quality program, the board decided to approve St. Isidore in June of 2023. OK, so is St. Isidore the first religious school to apply for and or be granted a school charter? So certainly in Oklahoma it is. Some states do allow charter schools to be affiliated with religious organizations. Oklahoma, under the statute, does not. But even in those states where charter schools can be affiliated with a religious organization, as far as we know, no school in the United States has had a religious curriculum. So this would be the first school where the educational curriculum had a religious component to it.

All right. So the case that you all are a part of is between the Oklahoma charter school board and the Oklahoma attorney general. St. Isidore is not a part of that.

So explain the whole reasoning behind that. So St. Isidore is a part of that, but it came later. But the suit did start just as a matter with the attorney general and the board because the attorney general sued the board. So the attorney general of Oklahoma, after the board approved St. Isidore and entered a charter contract with St. Isidore, the attorney general sued and to have the contract rescinded. And so that was the attorney general's choice in terms of naming the board as a defendant, went right to the Oklahoma Supreme Court and then St. Isidore intervened. So now and St. Isidore was a party when we were in the Oklahoma Supreme Court and now St. Isidore had a petition they filed from that ruling along with the board.

So both the board and St. Isidore are now our parties. OK, so tell us why you agree with the reasoning that Oklahoma charter school board used to approve St. Isidore. Yeah, I mean, the Supreme Court made it clear that the free exercise clause means that you cannot condition a public benefit or a program on somebody giving up their religious views. And that's essentially what this Oklahoma program, if the statute were enforced, does. And that is it says, look, you can apply to operate a charter school or you can be religious, but you can't do both.

So it's essentially asking people to give up their religious views as a cause for becoming part of the program. That's unconstitutional. And as I said before, the Supreme Court has made that crystal clear in a number of cases over the last few years. And the only real argument that the Oklahoma Supreme Court advanced as to why those cases don't apply is it held that St. Isidore is a government actor and a state actor. Two different things, but essentially meaning St. Isidore doesn't have rights under the Constitution, which is crazy because it was formed, as I said, by the Archdiocese of Oklahoma City and the Diocese of Tulsa. It was privately formed, submitted an application to have a contract with the state to run a school. But then it would be operated privately as well as a board, all privately appointed. It is in no way a creature of the state of Oklahoma.

So that's wrong. And if you take out that error of the lower court, it's clear that the cases that the Supreme Court's already decided mean that you can't discriminate against St. Isidore simply because it's Catholic when you consider applications for a program. You're listening to Family Policy Matters, a weekly radio show and podcast produced by the North Carolina Family Policy Council. This is just one of the many ways NC Family works to educate and inform citizens about issues that impact faith and family here in North Carolina. Our vision is to create a state and nation where God is honored, religious freedom flourishes, families thrive and life is cherished. For more information about NC Family and how you can partner with us in pursuit of this vision, visit our website at ncfamily.org and be sure to sign up to receive our email updates, action alerts and Family North Carolina magazine. You can also follow us on social media at NC Family Policy. That's at NC Family Policy.

All right. And the difference between St. Isidore operating as a public charter school and a public school is that no one is forced to go to the charter school, is that correct? That's one of many differences, right? I mean, there are a lot of differences between St. Isidore and a traditional public school. I mean, first of all, St. Isidore is not going to be operated by a school district, but also you're absolutely right.

It's a total, totally voluntary alternative for families in Oklahoma. So how did this case get to the U.S. Supreme Court and why is it so important that they take this on? It got to the Supreme Court because we filed a petition asking the court to review the Oklahoma Supreme Court's decision.

St. Isidore did too. And both petitions were granted. And so the court decided to hear the matter, which it will on April 30th, because it deems the case to be important for one reason or the other. And it is important first because the Free Exercise Clause is clear that a state can't ask somebody to give up their religion as a price of becoming part of a program. And a state can't deem private actors to be part of the government as an end run around those cases.

So it's important both as a matter of the Free Exercise Clause and as a matter of what's called the state action doctrine. When do you expect to have a resolution to this case? We would expect this case will be decided by the end of June this year, 2025. And will that mean that St. Isidore, if they do prevail, will be able to become a school next year? Is that leaving them enough time?

I don't think it's enough time for 2025, and I think they've already indicated that, but certainly for the 2026 school year, we would expect that they would be open. OK. And of course, the outcomes are what? Just yes or no? I mean, are there some gray area there? Yeah, I think the outcomes pretty much are whether or not the Supreme Court agrees with the Oklahoma Supreme Court's decision, which basically ordered that the charter contract be revoked on the grounds asserted by the attorney general, which we think are erroneous, or whether the court reverses that because it was incorrect. And St. Isidore does have free exercise rights and therefore can't be discriminated against simply because of its religious views. If the Supreme Court rules in the favor of St. Isidore, would we see this reverberate across the country? In the states where the state invites private applicants to apply to operate a charter school?

Absolutely. Not every state does it the same way. And this only goes in so far as there's a private applicant seeking approval. But to the extent that a state, any state has a program that it opens to secular applicants to establish charter schools, then it would have to allow religious applicants to apply as well on the same terms. Let's talk about the importance of this case then.

I mean, is this a topic or an issue whose time has come? It is really important for the court to make clear that states cannot put religious groups in kind of a second class category. They can't treat religious groups differently than they treat other private groups. And that's exactly what the Free Exercise Clause says.

And that's what the Supreme Court, we hope, will say with respect to St. Isidore. Also, this is such an important case in terms of educational freedom. You know, it's great to have school choice and the Oklahoma charter school program is a great way for Oklahomans to have options other than traditional public schools.

So the fact that St. Isidore can offer a Catholic virtual school for families who are in rural areas who need that option and who want that option is terrific. So this is a case that is important just to allow educational freedom in the way families choose to educate their children. So why do you suppose we're still having these debates? I mean, they come up very frequently, this balance between religious freedom, religious rights and the government.

Why can't we get this right, do you suppose? Yeah, I think there's such a view that the public schools should be the option and there's kind of a resistance to these alternatives, even though many families choose them. So here, as we talked about before, Tracy, St. Isidore would only have students if families choose to go there. And in fact, St. Isidore would only get state funds if families choose to go there.

Many families do. And in fact, there were many families signed up to attend St. Isidore before the Oklahoma Supreme Court ruled in June of twenty twenty four that it couldn't open and the contract needed to be rescinded. So our religious citizens, are we somewhat to blame for this because we're just accepting of this ability for the state to set these these very bold lines? Yeah, it could be that this is an issue that certainly could have been raised earlier by a group that wanted to establish a charter school and any of the states that have the charter school program.

And that's actually forty five states plus the District of Columbia all have charter school programs. But, you know, we are here now and that's great news. And hopefully the Supreme Court will make it clear that religious applicants are entitled to the same neutral treatment that other applicants get. And so hopefully with a decision from the Supreme Court by June of twenty twenty five and that will give everyone in the country who has access to these programs guidance and clarity in terms of how to move forward.

Well, we're about out of time before we go. Phil Seckler, where can our listeners go to follow this case and all the other great work that you all are doing over there at Alliance Defending Freedom? ADFLegal.org is our website and it has links to every one of the cases we're doing, including this case, which is called Drummond versus the Oklahoma Statewide Charter School Board.

And there probably will be a live stream on the date of argument, which is April 30th. And a lot of other work is being done by our organization. And so your listeners can find out about what we do at the website ADFLegal.org. All right.

Phil Seckler, director of the Center for Free Speech at Alliance Defending Freedom. Thanks so much for being with us today on Family Policy Matters. Thank you so much, Tracy.

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