OK: Notre Dame Law School Aids Push For Catholic Charter

Earlier this year, Oklahoma State Attorney General Gentner Drummond issued an opinion about the prospect of the state approving a church-run charter school. He was reversing the opinion of his predecessor, saying that previous opinion “misuses the concept of religious liberty by employing it as a means to justify state-funded religion. If allowed to remain in force, I fear the opinion will be used as a basis for taxpayer-funded religious schools.”

In June, the Oklahoma Statewide Virtual Charter School Board ignored him and approved the St. Isidore of Seville virtual charter, a cyber school that was proposed by the Archdiocese of Oklahoma City in collaboration with the Diocese of Tulsa. It was in anticipation of this application that the virtual charter board asked the previous AG for an opinion in the first place.

As an AP report noted, “Archdiocese officials have been unequivocal that the school will promote the Catholic faith and operate according to church doctrine, including its views on sexual orientation and gender identity.” 

And just in case you wonder if the state knew what it was doing, or was trying to preserve any plausible deniability, State Superintendent Ryan Walters supported the decision:

This decision reflects months of hard work, and more importantly, the will of the people of Oklahoma. I encouraged the board to approve this monumental decision, and now the U.S.’s first religious charter school will be welcomed by my administration.

And Governor Stitt hailed it as “a win for religious liberty and education freedom in our great state.”

Meanwhile, AG Drummond called the decision “contrary to Oklahoma law and not in the best interests of taxpayers.” Furthermore, "It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the state to potential legal action that could be costly.”

To the surprise of nobody, that lawsuit was filed before summer's end with Oklahoma Parent Legislative Action Committee and individual parents as plaintiffs in a case that has already been busy and twisty. 

The case has drawn a number of national groups to the case, including for the plaintiffs the ACLU, Americans for Separation of Church and State, and the Education Law Center. 

The defendant side is a more interesting array. Drummond, having made it clear that he believes the charter proponents are dead wrong, is not using the attorney general's office to defend them. So the school board, the state department of education, and Ryan Walters are being defended by private attorneys in Oklahoma and some other hired guns. 

Two are part of the usual array of legal shops that work to defund and dismantle public education. There's the Alliance Defending Freedom, a conservative Christian advocacy group that was incorporated in 1993 by six right-wing luminaries, including Larry Burkett, Bill Bright, and James Dobson. They are supported by a host of right-wing foundations, including the Richard and Helen DeVos Foundation. And they oppose abortion, same-sex marriage, most all LGBTQ+ rights. Their track record is sadly successful; these are the Hobby Lobby lawsuit folks. They have a summer legal training program to get Christian law students whipped up for legal careers; Justice Amy Coney Barrett taught at it. They successfully litigated against Vermont, establishing that the state must include Catholic students in its voucher program, a sort of throat-clearing for Carson v. Makin.

There's First Liberty Institute a Christian conservative firm based in Texas, which co-took Carson v. Makin all the way to SCOTUS, as well as the case of the praying coach. 

These are to be expected; getting money away from public education and into church coffers is their thing. But you get a fuller idea of who has a lot riding on this case from the third set of lawyers-- the Notre Dame Religious Liberty  Clinic. 

Says John Meiser, director of the Religious Liberty Clinic. “By welcoming faith-based charter schools, Oklahomans uphold the freedom for all people — religious or not — to serve our communities and extend educational opportunities to all children.” The quote does not go on to explain how, exactly, how a Catholic charter school would uphold freedom for non-religious people. But that continues to be a central argument--freedom, and how churches can't be free unless they are allowed to hoover up taxpayer dollars. 

"Access to private education can be limited by affordability and proximity. The pandemic prompted us to see technology as a bridge to provide education to all,” said Brett Farley, executive director of the Catholic Conference of Oklahoma. "That is why we have used the vast financial power of the church to lower tuition prices," he absolutely did not say. 

The Catholic Church has always been a fan of school choice. They got excited after the Espinoza decision, the Montana decision that was first to require direct transfer of taxpayer dollars to a church, and they were perfectly comfortable cozying up with then-secretary of education Betsy DeVos. In fact, while the conventional wisdom associates Trump with evangelicals, the Catholic Church was also a big Trump booster, especially if the conversation was about school vouchers. 

A Catholic charter in Oklahoma would pretty much erase the difference between charters and vouchers, and the Catholic charter in Oklahoma serves as a proof of legal concept, so this case is a good fit for the church. It is winding through various legal twists and turns (the defendants just moved to have it dismissed), but if it ends up before SCOTUS, it could represent one more reduction of the pile of rubble that now stands where the wall between church and state used to.