In 1999, Oklahoma enacted the Oklahoma Charter Schools Act (Act).[1] Its purpose was multi-faceted:

  1. Improve student learning;
  2. Increase learning opportunities for students;
  3. Encourage the use of different and innovative teaching methods;
  4. Provide additional academic choices for parents and students;
  5. Require the measurement of student learning and create different and innovative forms of measuring student learning;
  6. Establish new forms of accountability for schools; and
  7. Create new professional opportunities for teachers and administrators including the opportunity to be responsible for the learning program at the school site.[2]

The Act requires that a charter school be “nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”[3]

On October 16, 2023, St. Isidore of Seville Catholic Virtual School—an Oklahoma charter school—became the first religious public virtual charter school in the nation.[4] The Statewide Charter School Board approved the school’s application and entered a contract with the school in the wake of the United States Supreme Court’s “Free Exercise Trilogy” cases.[5] 

Four days later, Oklahoma Attorney General Gentner Drummond filed an original action for a writ of mandamus in the Oklahoma Supreme Court, arguing that the contract violated the Act, the Oklahoma Constitution, and the federal Establishment Clause.[6] In the original action, Attorney General Drummond warned “if the Catholic Church were permitted to have a public virtual charter school, a reckoning will follow . . . For example, this reckoning will require the State to permit extreme sects of the Muslim faith to establish a taxpayer funded public charter school teaching Sharia Law.”[7] St. Isidore intervened in the litigation after the action was filed. In June, the Oklahoma Supreme Court decided Drummond v. Oklahoma Statewide Virtual Charter School Board,[8] holding, “[u]nder Oklahoma law . . . a charter school must be nonsectarian.”[9] The court also determined that “[t]he St. Isidore Contract violates state and federal law and is unconstitutional,” and “direct[ed] the Charter School Board to rescind its contract with St. Isidore.”[10]

The court found that St. Isidore, a religious institution created to promote Catholic teachings, was inherently sectarian in nature.[11] It held that the contract allowing state funding for its operation breached Article 2, Section 5 of the Oklahoma Constitution, which explicitly prohibits the use of public funds to support any “sectarian” institution.[12] The court also noted that the Act mandates that all charter schools must be nonsectarian in their programs, admissions, and operations.[13]

Amici Curiae contended that Article 2, Section 5, is a “Blaine Amendment”—a type of provision which prevent states from appropriating public funds in aid of sectarian schools—and that such provisions are unenforceable.[14] But the Oklahoma Supreme Court disagreed, finding that “nothing in the recorded history of the Oklahoma Constitutional Convention, this Court’s case law, or any other historical evidence supports this conclusion,” and “[c]haracterizing [art. II, section 5] of the Oklahoma Constitution as a Blaine Amendment completely ignores the intent of the founders.”[15]

In addition to finding St. Isidore to be sectarian, the court determined that St. Isidore is a state actor under both the “entwinement” and “public function” tests.[16] The court relied heavily on the Fourth Circuit’s opinion in Peltier v. Charter Day School, Inc.,[17] explaining, “[j]ust as in Peltier, St. Isidore is a public charter school and a state actor.”[18]

The court rejected arguments that the school’s religious affiliation could be separated from its public funding, asserting the state would be directly supporting a religious organization with public money.[19]

Furthermore, the court underscored that the federal Establishment Clause prohibits government entanglement with religion, and it said funding St. Isidore would constitute an unconstitutional endorsement of a specific faith.[20] The majority emphasized that St. Isidore’s educational mission is to serve as an instrument of the Catholic Church, incorporating religious teachings into its curriculum and daily operations.[21] The court reasoned that this fact, when combined with St. Isidore’s status as a state actor, resulted in an Establishment Clause violation.[22]

Finally, the court explained the federal Free Exercise Clause did not apply since St. Isidore is a “state-created school” and thus cannot exist without the state.[23] The court added that even if the charter school had free exercise rights, “[c]ompliance with the Establishment Clause” would be a compelling government interest, and thus rejecting the charter would satisfy strict scrutiny.[24] Accordingly, the court granted the requested writ of mandamus and ordered the contract with St. Isidore to be rescinded.[25]

Vice Chief Justice Dustin Rowe concurred in part and dissented in part, only concurring “that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian.”[26] Justice Rowe dissented to the remainder of the opinion.[27]

Justice Dana Kuehn dissented. She explained that the mere act of contracting with the state “to provide a choice in educational opportunities” was not enough to make St. Isidore a “state actor.”[28] The dissent pushed back on the majority’s state action analysis and explained that “labeling all charter schools as ‘public schools’ . . . places form over substance.”[29]

Justice Kuehn reasoned that St. Isidore, as a private entity partnering with the state, had the right to operate as a religious institution while fulfilling a public purpose.[30]  She emphasized that the state was not directly funding religious activities, but instead providing parents and students the freedom to choose among educational options, including religious ones.[31] She viewed this arrangement as consistent with religious freedom and constitutional protections, and elaborated that “to the extent [the Act] bars such organizations from even applying to operate a charter school,” it is “inconsistent with the Free Exercise Clause.”[32]

In conclusion, Justice Kuehn warned that the majority opinion was “destined for the same fate as the Montana Supreme Court’s opinion in Espinoza v. Montana Dep’t of Rev..”[33]

In October, less than a year after the suit began, the Charter School Board petitioned the U.S. Supreme Court for certiorari[34] on two questions:

  1. Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.
  2. Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.

St. Isidore has likewise petitioned the Court for certiorari.[35]

Under the Oklahoma Supreme Court’s decision, no religious institution may receive funds from Oklahoma to operate as a charter school, whether brick-and-mortar or virtual. This means that religiously affiliated schools in Oklahoma are required to be privately funded. If the U.S. Supreme Court grants certiorari, it will have an opportunity to determine whether Article 2, Section 5 constitutes a Blaine Amendment and, if so, whether and how state supreme courts may continue to enforce state Blaine Amendments.   

 

[1] Oklahoma Charter Schools Act, Okla. Stat. tit. 70, §§ 3-130–3-143 (2024).

[2] Id. § 3-131.

[3] Id. § 3-136(A)(2).

[4] See Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 2024 OK 53, 2024 OK 53 at ¶ 5.

[5] See Drummond, 2024 OK 53, ¶ 43 (Okla. 2024) (citing Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022); Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464 (2020)). 

[6] Petitioner’s Brief in Support of Application to Assume Original Jurisdiction and Petition for Writ of Mandamus and Declaratory Judgment at 2, 10, Drummond, 2024 OK 53 (No. 121694).

[7] Id. at 1.

[8] Drummond, 2024 OK 53.

[9] Id. ¶ 45.

[10] Id.

[11] Id. ¶ 15.

[12] Id. ¶ 12. See also Okla. Const. art. II, § 5 (“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.”).

[13] Drummond, 2024 OK 53 ¶ 14.

[14] Id. ¶ 11. Passed primarily in the late 1800s, and present in 37 state constitutions, Blaine Amendments are a large obstacle to school choice programs.

[15] Id. ¶ 11 (quoting Prescott v. Okla. Capitol Pres. Comm’n, 373 P.3d 1032, 1050–52 (Okla. 2015) (Gurich, J., concurring in denial of reh’g)).

[16] Id. ¶ 29.

[17] 37 F.4th 104 (4th Cir. 2022), cert. denied, 143 S. Ct. 2657 (2023).

[18] Drummond, 2024 OK 53 ¶ 37.

[19] Id. ¶¶ 16–19.

[20] See id. ¶¶ 39, 41.

[21] Id. ¶ 41.

[22] Id.

[23] Id. ¶ 43.

[24] Id. ¶ 44.

[25] Id. ¶ 45.

[26] Id. ¶ 1 (Rowe, J., concurring in part and dissenting in part).

[27] Id. ¶ 2.

[28] Id. ¶ 1 (Kuehn, J., dissenting).

[29] Id. ¶ 6.

[30] Id. ¶ 5.

[31] Id. ¶¶ 10–11.

[32] Id. ¶ 16.

[33] Id.

[34] Petition for Writ of Certiorari, Okla. Statewide Charter Sch. Bd. v. Drummond ex rel. Okla., No. 24-394 (U.S. 2024), available at https://www.supremecourt.gov/DocketPDF/24/24-394/327634/20241007120954967_USSC%20Petition%20for%20Writ%20of%20Certiorari.pdf.

[35] Petition for Writ of Certiorari, St. Isidore of Seville Catholic Virtual Sch. v. Drummond ex rel. Okla., No. 24-396 (U.S. 2024), available at https://www.supremecourt.gov/DocketPDF/24/24-396/327683/20241007170841560_24-%20Petition.pdf.

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