Opening brief sets stage for upcoming Supreme Court arguments over nation’s first religious charter school

The nation’s first potential tax-funded religious charter shouldn’t be discriminated against because it is religiously affiliated, a new brief before the Supreme Court argued.

St. Isidore of Seville Catholic Virtual School, which is aiming to provide a Catholic education to students in Oklahoma regardless of their faith background, was approved by the Oklahoma Statewide Charter School Board in 2023. It has since sparked a national religious liberty debate, after the state’s Republican Attorney General Gentner Drummond, filed a lawsuit, arguing that allowing taxpayer funds to go to the school was a form of state-sponsored religion. 

The charter school board, represented by Alliance Defending Freedom, filed an opening brief to the Supreme Court on March 5, arguing that denying a religious organization from a generally available program – in this case, the state’s charter school funding program – is unconstitutional. 

“Everyone should want more high-quality, no-cost education options for families, which is exactly what Oklahoma’s Statewide Charter School Board is providing,” ADF Chief Legal Counsel Jim Campbell said in a statement. “Excluding faith-based groups like St. Isidore undermines that goal and hurts the families that desperately want and need those options.” 

The Supreme Court is weighing the case – with arguments set for April 30 – after Oklahoma’s Supreme Court ruled that St. Isidore was unconstitutional and that allowing the school would create a “slippery slope.” 

“Although a public charter school, St. Isidore is an instrument of the Catholic Church, operated by the Catholic Church, and will further the evangelizing mission of the Catholic Church in its educational programs,” the state court noted. 

Those concerns echo those of Attorney General Drummond, who told The Lion in a statement that the proposed school “poses a threat to religious liberty.” 

“The framers of the U.S. Constitution and those who drafted Oklahoma’s Constitution clearly understood how best to protect religious freedom: by preventing the State from sponsoring any religion at all,” he said. “Today the request is for Oklahoma to fund Catholicism. Tomorrow it can be the teachings of Sharia Law or even Satanism.” 

St. Isidore has called those concerns “hateful strategies” that should be ignored. “Oklahoma Attorney General Gentner Drummond and others have sought to sow discord between believers of different faiths and use religiously discriminatory fear tactics to convince them to limit religious engagement in the public square,” the school’s website notes. The school, which received hundreds of applications and had been set to open in the 2024-25 school year, is now awaiting the high court’s decision and said it hopes it “can soon provide a premium, virtual education to Oklahoma families.” 

As the Supreme Court takes up the case, it highlights a continuation of religious freedom and education cases in recent years. “This Court has repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits and programs,” ADF’s opening brief, citing Carson v. Makin, begins. “Three times in the last eight years, the Court has applied that principle to stop state efforts to exclude religious schools, parents, and students from generally available funding programs based solely on their religion.” 

The Oklahoma Supreme Court “has not gotten the message,” the brief added, noting that its holding means that the state “may broadly invite anyone to apply to operate charter schools – yet exclude religious organizations.” 

A critical component of the debate is whether St. Isidore, as a religious school receiving public funds, would be a private or state actor. While the school has insisted that it remains privately owned and operated, Oklahoma’s Supreme Court held that it was a state actor since it would be receiving direct taxpayer support to provide a Catholic curriculum that students would be required to participate in.  

“Faith-based groups often provide vital public services in which they partner with the government or are subject to government regulation,” ADF’s opening brief noted, arguing that under the Oklahoma Supreme Court’s ruling “many of these organizations would be deemed state actors [and] disqualified from providing broad-ranging social services—including foster care, adoption services, medical care, homeless shelters, and other aid to disadvantaged communities.” 

Oklahoma’s ruling, ADF’s brief added, would deny low-income families educational options they “desperately want and need.” 

“The Free Exercise Clause ‘condemns’ this kind of ‘discrimination against religious schools and the families’ who want their children to attend them,” the brief notes, citing previous court rulings. “‘They are members of the community too,’ and their exclusion from the charter-school program is ‘odious to our Constitution and cannot stand.’”