Oklahoma Attorney General Gentner Drummond took his argument against publicly funding religious charter schools before the Oklahoma State Supreme Court in the state capitol in Oklahoma City on April 2.
On Oct. 20, 2023, Mr. Drummond, a Republican, sued the Statewide Virtual Charter School Board (SVCSB) after it voted 3–2 in June 2023 to approve a charter for the St. Isidore of Seville Virtual Charter School. The school, sponsored by the Catholic Archdiocese of Oklahoma City, will be “Catholic in teaching, Catholic in employment, and Catholic in every way,” according to its charter application.
Mr. Drummond argued that the charter violates the U.S. Constitution’s ban on establishing a state religion and a similar provision in Article 2 Section 5 of the Oklahoma Constitution. He said that a charter school is legally a public school.
The Oklahoma Constitution says public schools shall be “free from sectarian control” and that “no public money ... shall ever be appropriated ... or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion ... or sectarian institution.”
Under the Oklahoma Charter Schools Act, a charter school “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.”
Mr. Drummond said the board members violated their oath to support the constitutions.
“I think they betrayed their oath of office, and I think they know they betrayed their oath of office because I told them they would,” Mr. Drummond told the court.
He pointed out that the St. Isidore school board would be subject to the state’s open meetings and open records laws.
In addition, the school would be required to follow state school financial accounting laws, students would have to take standardized tests, teachers would have to be certified and would qualify for state teacher retirement benefits, the school would have to accept all students, and it would be prohibited from charging tuition, he said.
“The state essentially can decide how the religious school can be run,” Mr. Drummond said. “The church and the state are joint venturers.”
He said the charter “eviscerates the separation of church and state.”
Justice Yvonne Kauger pointed out that the case involves what would be the country’s first publicly funded religious school. She warned that the precedent could be very far-reaching.
“When the wall comes down, it’s Katie-bar-the-door,“ she said. ”Are we being used as a test case?”
Supporters of the plan countered that the approach Mr. Drummond was taking was much too severe. They claimed that the U.S. Supreme Court has ruled that public money can be used for religious organizations that provide a public service, and education is a public service.
According to the attorneys, denying the charter would amount to religious discrimination.
“You can participate in the [charter school] program, or you can practice your religion, but you can’t do both,” Phil Sechler, senior counsel with the Alliance Defending Freedom, told the Oklahoma justices.
Mr. Sechler said Mr. Drummond’s approach negates the charter school concept. According to Mr. Sechler, charter schools were developed to provide private individuals and groups with the ability to determine what kind of education their children receive. So they are given much more latitude when it comes to curriculum, instructional methods, and activities.
“[Mr. Drummond’s] view would bind all charter schools to the rule of government,” Mr. Sechler said.
Vice Chief Justice Dustin Rowe asked Mr. Drummond about St. Anthony Hospital in Oklahoma City.
Founded by Catholic nuns, that facility has crosses and other religious symbols throughout the building, allows medical staff to pray with patients, and promotes other religious activities. Mr. Rowe pointed out that the hospital receives state and federal funds through various health care plans.
“Are we violating Article 2 Section 5?” he asked.
Mr. Drummond said that was not an apt comparison, pointing out that the hospital receives its money from patients who are the direct beneficiaries of public funding. According to Mr. Drummond, this is the same principle as school vouchers, which Oklahoma allows.
Cases Are Not the Same
“The parents were choosing to take their tax dollars [and] their scholarship dollars there. That’s materially different than what we have here,” he said.“Here, St. Isidore is 100 percent funded by the state of Oklahoma.”
Justice Dana Kuehn asked Mr. Drummond whether his objection was based on religion alone. She asked what his position would be if a school were openly atheist, expressly denying the existence of any kind of deity.
Mr. Drummond said the same principle would apply.
“If we promote a belief as a state, it is a violation of our constitution and our statute,” Mr. Drummond said.
In a statement released the night before he went before the court, Mr. Drummond referenced a case from Iowa in which a satanic altar was placed in the state capitol.
“That is the direction we are heading, and it is wrong on every level,” he said.
Mr. Drummond also warned that the precedent would make it impossible to stop public funding for Muslim schools that would teach radical views on Sharia Law.
Gov. Stitt Disagrees
“Oklahomans support religious liberty for all and support an increasingly innovative educational system that expands choice. Today, with the nation watching, our state showed that we will not stand for religious discrimination,” Mr. Stitt stated in the press release.The governor released a statement that was critical of Mr. Drummond in October 2023. In that statement, he wrote that Mr. Drummond was guided by his personal preferences rather than the law.
“His discriminatory and ignorant comment concerning a potential Muslim charter is a perfect illustration. The creation of St. Isidore’s is a win for religious and education freedom in Oklahoma. We want parents to be able to choose the education that is best for their kids, regardless of income. The state shouldn’t stand in the way,” Mr. Stitt wrote.
Mr. Drummond responded with his own criticism of the governor and the virtual school board.
“I, for one, do not want my tax dollars funding the teaching of radical Sharia law or the blasphemous tenets of the Church of Satan,” Mr. Drummond wrote.
