Catholic Church in Oklahoma Will Attempt to Open Nation’s First Religious Charter School

Based on recent Supreme Court rulings, Oklahoma’s attorney general said the state’s current restrictions on religious charter schools are likely unconstitutional.

AP/Matt Rourke, file
Desks are spaced apart ahead of planned in-person learning at an elementary school on March 19, 2021, at Philadelphia. AP/Matt Rourke, file

Oklahoma will receive an application for the nation’s first religious charter school from the Archdiocese of Oklahoma City, following a new opinion from the state’s attorney general that religious charter schools are constitutionally permissible.

The executive director of the state’s Catholic Conference, Brett Farley, says the archdiocese will submit its application for charter authorization next month. The application will be closely watched by advocates of religious liberty nationwide.

Last week, the Sooner State’s attorney general, John O’Connor, greenlit religious charter schools in an advisory opinion — despite state law prohibiting religious charter managers and religious instruction in charter schools.

Based on recent Supreme Court rulings, however, Mr. O’Connor wrote that the restrictions on religious charters are likely unconstitutional. The non-sectarian requirements “likely violate the First Amendment to the U.S. Constitution and therefore should not be enforced.”

If the charter board follows Mr. O’Connor’s opinion, it will be on track to approve the first religious charter school in America, bucking an established norm of the more than 30 years since the first charter school in the country opened its doors. 

Charter schools, which enroll more than 3 million American children, are publicly funded schools operated by private management. In Oklahoma, there are about 9,000 students in Catholic schools and about 80,000 in secular charter schools.

Mr. Farley is confident in the archdiocese’s application. “We’re working off of some of the most recent applications that have been approved, so we have a general sense of what they’re looking for,” he told the Sun. 

The archdiocese is applying for virtual charter authorization, so the Catholic charter school would not have a physical school building.

“Establishing a virtual charter provides us with a much quicker opportunity to deliver educational content to places where establishing a brick and mortar presence would just be prohibitive financially,” Mr. Farley said, adding that the virtual charter application is “less onerous.”

The archdiocese plans to build “a platform that will deliver on an a la carte basis depending on various needs across the state” — meaning it will develop various programs for various parishes once it has its charter authorization. 

Within 90 days of receiving the application, the charter board will issue its decision, which will likely trigger litigation.

If the charter is denied, Mr. Farley says the archdiocese would take a “serious look at filing suit” against the charter board. If, however, it is approved, Mr. Farley would still “welcome” litigation from opponents of the board’s decision.

“There is both state and U.S. Supreme Court precedent that makes it pretty clear where the court might decide on that question,” he said, adding that such a case could set a nationwide precedent. 

“The Supreme Court has doubled down on their opinion that if a government entity is offering a publicly funded program, they cannot prohibit a religious entity from participating simply because they’re religious,” he said.

Opponents of religious charter schools, however, believe they would triumph in court.

The Freedom from Religion Foundation called the attorney general’s opinion “irresponsible” in a statement to the Sun. 

“If Oklahoma permitted a church or other religious institution to run a charter school and engage in sectarian instruction, it would clearly violate the state constitution as well as the federal Constitution’s Establishment Clause and Equal Protection Clause,” the organization’s co-president, Annie Laurie Gaylor, said.

Ms. Gaylor said the organization is working on a “legal dissection” of the attorney general’s opinion and is “confident” that the authorization of a religious charter school “would be subject to immediate challenge and be ruled unconstitutional.”

In the meantime, Mr. Farley is in touch with his counterparts in other states about advancing similar initiatives elsewhere. 

Mr. Farley sees significant strategic advantages in approaching through legal routes rather than through legislative efforts, where school choice advocates have traditionally focused their work. 

Given recent decisions from the Supreme Court, settling these questions in federal court may be more favorable to the school choice agenda than working with state legislatures, which are more susceptible to the influence of anti-choice advocates, such as teachers unions, on electoral politics.

In particular, he cites Arkansas and Nevada as states that could greenlight religious charters next — based on their more libertarian charter regimes.

“We’ve got to be very careful about how we move forward on this because we don’t want to throw obstacles in front of ourselves as we expand this opportunity,” Mr. Farley said.

He is optimistic about a “renaissance for Catholic schools” if what he calls “the funding question” is settled. 

“It’s hard to compete with a free option,” Mr. Farley said of the current situation, in which the cost of religious education deters families from enrolling, despite the fact that Catholic schools “way outperform public schools.”

Mr. Farley also adds that Catholic schools have a unique advantage in the instruction of “virtue” amidst the “decline in our culture.”

“The Catholic Church has taken upon itself to be the driving force for a renaissance of Western culture in general,” Mr. Farley said. “Education has got to be at the center of that. If we’re not teaching and forming kids in virtue, then we might as well just give up entirely.”

The New York Sun

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