DRUMMOND v. OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD
2024 OK 53 (2024)
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Rule of Law:
A state cannot sponsor or fund a religious charter school because charter schools are state actors, and doing so violates state constitutional prohibitions on using public money for sectarian institutions and the U.S. Constitution's Establishment Clause.
Facts:
- The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Oklahoma Statewide Virtual Charter School Board to establish St. Isidore of Seville Catholic Virtual School.
- St. Isidore's stated purpose is to operate as a Catholic school, participate in the evangelizing mission of the church, and fully incorporate Catholic teachings into every aspect of its curriculum and activities.
- The school's governance structure places it under the control of the Archbishop and the Bishop, and requires that a majority of its board members be Catholic.
- The Charter School Board voted to approve St. Isidore's application and subsequently approved a sponsorship contract.
- The executed contract between the Board and St. Isidore varied significantly from the state's model contract for charter schools.
- Specifically, the St. Isidore contract removed the standard clause prohibiting religious affiliation and instead affirmed the school's right to freely exercise its religious beliefs.
- The contract also reversed a standard warranty, explicitly stating that St. Isidore is affiliated with a religious institution, contrary to the typical requirement that it not be.
- Under the contract, St. Isidore was set to commence operations as a state-funded public charter school on July 1, 2024.
Procedural Posture:
- Oklahoma Attorney General Gentner Drummond filed an application requesting the Supreme Court of the State of Oklahoma to assume original jurisdiction.
- The Attorney General sought a writ of mandamus directing the Oklahoma Statewide Virtual Charter School Board to rescind its contract with St. Isidore, as well as declaratory relief.
- St. Isidore of Seville Catholic Virtual School was permitted to join the case as an Intervenor to defend its interests.
- The Supreme Court of Oklahoma assumed original jurisdiction to provide an immediate judicial determination on an issue of public interest and held oral arguments.
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Issue:
Does a state-sponsorship contract that establishes and funds a religious virtual charter school violate the Oklahoma Constitution and the Establishment Clause of the U.S. Constitution?
Opinions:
Majority - Winchester, J.
Yes, the contract violates the Oklahoma Constitution and the Establishment Clause of the U.S. Constitution. Under Oklahoma law, charter schools are defined as public schools and function as governmental entities, or state actors. Therefore, establishing and funding St. Isidore, an admittedly sectarian institution, directly contravenes Article 2, Section 5 of the Oklahoma Constitution, which prohibits the use of public money for the benefit of any sect or religious institution. It also violates Article 1, Section 5, which requires public schools to be free from sectarian control. As a state actor, St. Isidore is bound by the Establishment Clause, which prohibits government from funding or participating in religious instruction; the school's entire educational philosophy is an admitted violation of this principle. The Free Exercise Clause is not implicated because this case involves the state's unconstitutional creation of a religious school, not the exclusion of a private religious entity from a generally available benefit.
Dissenting - Kuehn, J.
No, the contract does not violate the Oklahoma or U.S. Constitutions. St. Isidore should be viewed as a private entity contracting with the state to provide an educational service, not as a state actor. The state's labeling of charter schools as 'public' is a matter of form over substance. Oklahoma's 'no aid' clause is not violated when the state contracts for services that provide a substantial return, even with religious entities. More importantly, the Oklahoma Charter Schools Act's requirement that schools be nonsectarian imposes an unconstitutional penalty on the free exercise of religion. Excluding St. Isidore from operating a charter school solely because of its religious character violates the Free Exercise Clause, as established in recent Supreme Court precedents like Carson v. Makin and Espinoza v. Montana Dept. of Revenue.
Analysis:
This decision reinforces a critical distinction between permissible, neutral government aid to private religious entities and the impermissible direct establishment and funding of a religious public institution. By defining Oklahoma charter schools as 'state actors,' the court subjects them to the same constitutional constraints as traditional public schools, particularly the Establishment Clause. This ruling sets up a potential conflict with the U.S. Supreme Court's expanding interpretation of the Free Exercise Clause, which has increasingly required states to include religious entities in public benefit programs, creating a likely avenue for future litigation on the nature of religious charter schools nationally.
