I know that everyone's following SCOTUS in this final week of the term, but I'd like to offer some quick thoughts about an important church-and-state decision a couple of days ago in Oklahoma. In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court ruled 6-2 that the state had violated state and federal law by contracting with a Catholic school to operate a charter school. Although I favor educational pluralism and am open to persuasion, under current SCOTUS religion clause jurisprudence, the Oklahoma court probably got this one right.
Charter schools are a hybrid: publicly chartered (hence the name) and funded but independently managed. Unlike private schools, but like regular public schools, they're free. The state picks up the tab. But unlike regular public schools, and like private schools, charter schools rely on parental choice. Only students whose parents have selected a charter school attend it, though a charter school must accept all who apply. And although charter schools have more flexibility than regular public schools—that's the whole point, to allow competition in the interests of the students—charter schools are more heavily regulated than private schools in terms of curriculum, teacher qualification, and other things.
In Drummond, the Oklahoma Charter School Board contracted with St. Isidore of Seville Catholic Virtual School to run a charter school. St. Isidore forthrightly asserts that it will incorporate Catholic teachings into every aspect of its curriculum. Although most contracts the school board makes with charter schools prohibit religious affiliation, the school board made an exception in this case.
This week, the Oklahoma Supreme Court ordered the school board to rescind its contract with St. Isidore. The contract, the court said, violated the Oklahoma Charter Schools Act, which requires charter schools to be non-sectarian (as I say, the board made an exception for St. Isidore), the Oklahoma Constitution, which prohibits public money from being used, directly or indirectly, to benefit a religious institution, and the US Constitution, which prohibits the establishment of religion. The court also rejected St. Isidore's argument that rescinding its contract with the school board would violate the school's free exercise rights under the U.S. Constitution.
It's not quite as clear as the Oklahoma court makes it seem, but the decision is probably correct, at least respecting the federal constitutional claims. Legally speaking, St. Isidore is caught in a dilemma—a dilemma that its hybrid nature as a charter school creates. If St. Isidore qualifies as a public school, there's an obvious Establishment Clause problem. St. Isidore argued that it shouldn't be seen as a public school, but as an independent contractor. But the Oklahoma statute specifically provides that charter schools are "public." And that's not just a matter of form, but also substance. As a charter school, St. Isidore is funded entirely by the state, must take all students who apply, and must comply with curricular and other requirements that don't apply to private schools.
On the other hand, if St. Isidore is a private actor, the US Supreme Court's recent free exercise cases may not help it too much. In Carson and Espinoza, the Court ruled that the state cannot exclude private religious schools from tuition assistance programs simply because they are religious—that would violate the schools' right to practice their religion. That seems correct to me. But in those cases, the Court stressed that public funds went to private schools through the filter of parental choice. Parents who received tuition assistance designated which schools would receive the money.
St. Isidore would be entirely free, by contrast, and Oklahoma would be funding the school directly. True, the amount of money St. Isidore would receive would depend, presumably, on the number of students it enrolled—and that would depend on parental choice. But the state is more in the foreground (and the parents more in the background) in this case than in either Carson or Espinoza, and it feels different, somehow.
So, either way, whether St. Isidore is a public school or a private school, it seems to me it should lose this case. That's a pity, because I'm sure the educational offerings at St. Isidore would exceed those in many other schools. Perhaps the school should reorganize as a purely private school and participate in Oklahoma's voucher program. Anyway, St. Isidore will surely seek cert, so we'll see what SCOTUS has to say. But not this week!
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