In 2023, Oklahoma Statewide Virtual Charter School Board app…
Questions
In 2023, Oklаhоmа Stаtewide Virtual Charter Schооl Board approved the creation of St. Isidore of Seville Catholic Virtual School via a charter, becoming the nation’s first charter school with religious curriculum. Charter schools have characteristics of both public and private schools. Like public schools, they are government-funded (i.e., taxpayers), free, and open to all students. However, like private schools, they are independently run with board members appointed to their leadership positions, excused from following many laws that apply to public schools (e.g., free speech rights, search and seizure protections), and have curriculum that differs from the state’s curriculum. To be clear, because of their hybrid nature, state and federal courts have had difficulty in determining whether they should be considered public for legal purposes. Still, the Oklahoma State Supreme Court ruled that St. Isidore was a public school, and state laws require public schools to be non-religious. Justices of the court added that these laws align with both the state and federal constitutions regarding the interaction between state and religion, and Oklahoma’s constitution specifically forbids public money from benefiting religious organizations. Therefore, the charter violated the Establishment Clause, and the contract creating the nation’s first religious charter was canceled. The case was eventually taken up by the US Supreme Court. Lawyers representing Oklahoma Charter School Board argued that “St. Isidore was privately created by two Catholic organizations, and it is controlled by a privately selected board of directors…They came up with their own startup funding.” Because the board maintained that charter schools were private institutions, they felt that the state’s ban on religious charters was a violation of the school’s Free Exercise Clause. They continued, “[The state] will not hire or supervise the school’s teachers or administrators. Under this court’s test, St. Isidore is neither the government nor engaged in state action.” Thus, St. Isidore was private. Lawyers representing Attorney General Drummond noted that defining charter schools as private entities would “open the floodgates and force taxpayers to fund all…religious education.” They added that charter schools like St. Isidore have “all the hallmarks of government entities.” They are created by the state, and they remain under state supervision and control. The state, they claimed, exercises “extensive oversight of” charter schools’ curriculum, “far more than it wields for private schools in the state.” They also pointed out that federal law requires charter schools to operate under “public supervision and direction.” Thus, St. Isidore was public. When the Supreme Court reached their decision on Oklahoma Statewide Charter School Board v. Drummond (2025), they deadlocked at 4 to 4. Justice Amy Coney Barrett recused herself from the case. Therefore, for this case, you are the ninth justice, and you must break the tie… If you were the ninth justice, how would you decide the case? Explain your answer for maximum credit. A) Are schools with state contracts but privately owned and operated considered public education? (2 points) B) Do states have the right to exclude religious schools from its charter school program (i.e., funding)? (2 points)
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