ADF Defends Oklahoma State Agency That Refused to Discriminate Against Catholic School

The First Amendment states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” While proponents of “church-state separation” often harp on the first clause of that protection, they sometimes seem to overlook the second.

One implication of the Free Exercise Clause of the First Amendment is that the government cannot treat religious people worse than it treats everyone else. For example, the government cannot exclude otherwise qualified religious organizations from generally available public benefits. In the landmark Supreme Court decision in Trinity Lutheran Church of Columbia v. Comer—won by Alliance Defending Freedom in 2017—the Court ruled that such discrimination is “odious to our Constitution.”

In Oklahoma, the Charter Schools Act allows private entities like a “private college or university, private person, or private organization” to contract with a public sponsor and operate charter schools in the state. Although the Oklahoma Act requires charter schools to be “nonsectarian,” the Free Exercise Clause requires that religious entities have the same ability to operate charter schools as nonsectarian entities.

Observing the commands of the Free Exercise Clause, Oklahoma’s Statewide Virtual Charter School Board (which oversees online charter schools serving the entire state) approved an application from the Archdiocese of Oklahoma City and the Diocese of Tulsa to establish the St. Isidore of Seville Catholic Virtual School.

Two lawsuits have been filed against the Board claiming its approval of St. Isidore violated the “nonsectarian” requirement in the Oklahoma Charter Schools Act, but both suits entirely ignore the Free Exercise Clause.

Who is suing the Oklahoma Statewide Virtual Charter School Board?

First, a local group called the Oklahoma Parent Legislative Action Committee (OKPLAC) and others filed a lawsuit against the Board in July 2023. OKPLAC is an activist organization that has historically advocated against giving parents more choices about where to send their children to school.

Then in October 2023, Oklahoma Attorney General Gentner Drummond filed a separate lawsuit challenging the Board’s approval of St. Isidore.

Both the attorney general and OKPLAC accuse the Board of violating Oklahoma law when it approved St. Isidore, citing the portion of the Charter Schools Act that says charter schools must be “nonsectarian.” But the Board members took an oath to uphold the U.S. Constitution, and the U.S. Supreme Court has repeatedly held that religious groups cannot be excluded from generally available programs solely because of their religious character.

The Board correctly concluded that enforcing the requirement for charter schools to be “nonsectarian” would be unconstitutional, so Alliance Defending Freedom is defending the Board in both lawsuits.

Are Oklahoma state officials trying to establish a religion?

No. Opponents of religion in schools have long suggested that any time the government directs taxpayer dollars to a religious institution, it amounts to the establishment of religion and therefore violates the First Amendment. But that assertion is false.

The government is required by the First Amendment to treat religious organizations equally. By approving St. Isidore’s application, the Board is simply treating this Catholic virtual school the same as non-religious charter schools—not providing any extra benefits. Indeed, schools of any religious affiliation are free to apply for approval from the Statewide Virtual Charter School Board.

The Board has an obligation to treat all charter-school applicants fairly whether they are secular or religious. To do otherwise would violate the First Amendment’s Free Exercise Clause.

Does St. Isidore discriminate against non-Christian students?

No. The Board approved St. Isidore to become a virtual charter school after reviewing the school’s application and determining that it complies with state non-discrimination law. While St. Isidore plans to educate children from a Catholic perspective, it does not require students to be Catholic. St. Isidore’s proposed policies clearly state that the school will be open to all students, including students of “different faiths or no faith.” If the number of applicants exceeds St. Isidore’s capacity, it will use a random lottery to determine admissions.

How will establishing St. Isidore benefit parents and students?

Parents deserve more choices about where to educate their children, not fewer. Different children flourish in different environments, and providing a wide variety of options allows parents to ensure their children are educated in a way that they know is best for them.

People of faith should not be treated as second-class citizens. Just as non-religious parents can choose to send their children to non-religious charter schools, religious parents should be able to send their children to charter schools that align with their beliefs. Regardless of whether you agree with St. Isidore’s religious beliefs, we can all understand that providing more education options benefits everyone.

Case timeline

• June 2023: The Statewide Virtual Charter School Board approved St. Isidore of Seville Catholic Virtual School to become a statewide virtual charter school.
• July 2023: OKPLAC challenged the school’s approval in a lawsuit.
• October 2023: Attorney General Drummond filed a separate lawsuit against the Board.
• September 2023: Since OKPLAC’s lawsuit challenged policies that hadn’t even been enacted yet, ADF attorneys filed a motion to dismiss it.
• November 2023: ADF attorneys filed a brief opposing the attorney general’s request for the court to cancel the contract between St. Isidore and the Board.