The Patriot Post® · Oklahoma Says Yes to a Religious Charter School. So Does the First Amendment.

The first charter school in the United States opened in 1992 with 35 students in St. Paul, Minn. Today there are more than 7,800 charter schools in 45 states plus the District of Columbia and Puerto Rico, and the number rises each year. With an enrollment of 3.7 million, charter schools now educate 1 of every 13 public school students in America. In some places, the ratio is far greater: In Arizona, one-fifth of all students attend charter schools. Roughly half of public school students in Indianapolis, Washington, D.C., and Kansas City attend charter schools. In New Orleans, all public schools are charters.

Publicly funded but independently operated, charter schools are anything but monolithic. They are run by a wide variety of entities reflecting a diverse array of teaching styles and philosophies. There are charter schools organized by colleges and universities, by nonprofit groups and for-profit companies, by professional educators and local parents. Many charter schools are known for their educational specialization. Some focus on the performing arts, for example; others prioritize Latin and Greek classics, science and math, Chinese language immersion, Native American culture, or single-sex instruction. There are charter schools that place a premium on inculcating leadership skills. Others put particular emphasis on community service.

But amid all this educational diversity, there has never been a single religious charter school.

Until now.

On Monday, officials in Oklahoma approved an application by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa to launch what will be the nation’s first faith-based charter school. The online academy, St. Isidore of Seville Catholic Virtual School, hopes to enroll students in grades K-12 beginning in 2024. Catholic teachings will be embedded in the curriculum — in the words of Brett Farley, executive director of the Catholic Conference of Oklahoma, religion is “baked into everything we do.”

Wherever charter schools operate, including Oklahoma, they are required by law to be secular. Under Section 3-136 of the Oklahoma Charter Schools Act, every such school must “be nonsectarian in its programs, admission policies, employment practices, and all other operations.” The law also explicitly bars charter schools from any affiliation with a religious institution.

Consequently, the Oklahoma board members who voted to greenlight St. Isidore were warned by the state’s attorney general that they were exposing themselves to legal liability. Indeed, as soon as the school’s application was approved, the advocacy group Americans United for Separation of Church and State announced that it would fight the decision in court. “It’s hard to think of a clearer violation of the religious freedom of Oklahoma taxpayers and public-school families,” said the group’s president, Rachel Laser. “This is a sea change for American democracy.”

Oklahoma Governor Kevin Stitt, however, applauded the vote as “a win for religious liberty and education freedom in our great state.” He said it would “give parents more options when it comes to their child’s education.”

Stitt is right, and there is good reason to think the courts will say so.

When charter schools first appeared in the 1990s, it was taken for granted that they could have no connection to a religious faith. But in numerous cases over the last two decades, in contexts as varied as adoption agencies and City Hall flagpoles, the Supreme Court has affirmed that the free exercise of religion is a bedrock constitutional value and may not be disfavored by government. In the realm of education, it has established a clear rule: While states cannot require or promote religious education, neither may they exclude religious believers from funding and school-choice programs that are open to everyone else.

In its 2002 decision in Zelman v. Simmons-Harris, a landmark that has been called the most important education decision since Brown v. Board of Education, the high court ruled that low-income parents in Ohio could use state tuition aid vouchers to enroll their children in religious schools. In 2017, the justices held that a Missouri program that provided public and private schools with funds to resurface their playgrounds could not lawfully exclude a particular school just because it was affiliated with a church. Writing for the court in a case out of Montana in 2020, Chief Justice John Roberts expressed the principle clearly: “A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Though the court hasn’t yet ruled in a case involving charter schools, it’s difficult to see why the same logic wouldn’t apply. Clearly, a standard public school — one operated by government employees under the supervision of a political school board — cannot be a religious enterprise. But charter schools, though publicly funded, are not publicly operated. They are organized and run by private groups and individuals; their whole raison d'être is to offer education unavailable in government schools. States provide money and enforce basic legal standards, but otherwise charter schools are autonomous. That’s a key reason for their popularity.

The only real distinction between charter schools and school vouchers is that charters are new schools created by private educators, whereas vouchers subsidize tuition at existing private schools. But if public dollars can underwrite a religious education via vouchers, they ought to be able to do so via charter schools. In both cases, the state’s goal is to promote educational diversity and parental empowerment, not to promote religion.

Many critical public services — from health care and homeless shelters to foster care and food pantries — are supplied by faith-based groups that receive government subsidies. To mention one especially striking example, more than 70 percent of all refugee resettlement in the United States is undertaken by Christian, Jewish, and Muslim organizations. Though the Constitution prohibits the government from engaging in the “establishment of religion,” it raises no bar to contracting with religious providers to help fulfill important government obligations.

A church-run charter school is in exactly the same category. Oklahoma is right to say so, and other states should follow its lead.