The Supreme Court will hear arguments that will determine if Oklahoma can establish America’s first religious charter school or if such a proposal is an unconstitutional establishment of religion. 

The case, Oklahoma Statewide Charter School Board v. Drummond, pits Oklahoma’s attorney general against other statewide Republican officials, and the oral arguments are scheduled for April 30. 

At the center of the case is the question of whether St. Isidore is considered a government entity bound by the Constitution’s prohibition on the establishment of a religion, or an institution created and run by a private entity that has a contract with the state but does not have the same limitations. 

In June 2023, the Oklahoma State Virtual Charter School Board voted 3-2 to approve the creation of the first-ever religious charter school, the St. Isidore of Seville Catholic Virtual School, which would have been run by the Archdiocese of Oklahoma City and the Diocese of Tulsa. It has been envisioned as a virtual charter school, accessible to all students in the state, that would serve as a “genuine instrument of the church.” The school would also be open to students of all faiths, including those who are not religious. 

The Republican attorney general of Oklahoma, Genter Drummond, who has announced he is running for governor in 2026, filed a lawsuit against the school, saying its approval “violated the religious liberty of every Oklahoman.”

The Oklahoma Supreme Court ruled in June 2024 that the charter school violated the Establishment Clause of the U.S. Constitution and a provision of Oklahoma’s constitution, which prohibits the government from establishing a religion. 

Public schools are funded and operated by the state, and private schools are funded by private parties and run by private institutions. Charter schools receive public funding but are operated by private entities, though they must follow education laws, and the government has oversight authority.

Attorneys for the virtual charter school board argued that St. Isidore is run by a private organization that has a contract with the state, but is not a “state actor,” and, therefore, its religious mission does not violate the Constitution. 

However, the state’s highest court rejected the idea that St. Isidore is a private entity and found that it would violate the Establishment Clause. Writing for the majority, Justice James Winchester said, “The Legislature created Oklahoma charter schools, and Oklahoma law treats them as public schools and governmental bodies…They are creatures of state law and may only operate under the authority [granted] to them by their charters with the state. St. Isidore will be acting as a surrogate of the state in providing free public education as any other state-sponsored charter school.”

Justice Winchester added, “St. Isidore’s educational philosophy is to establish and operate the school as a Catholic school…Under both state and federal law, the state is not authorized to establish or fund St. Isidore.” 

Justice Dana Kuehn dissented from the opinion, saying, “Contracting with a private entity that has religious affiliations, by itself, does not establish a state religion, nor does it favor one religion over another.”

In October, the Oklahoma charter school board and the school asked the Supreme Court to intervene, arguing the decision to block St. Isidore violates the right to the free exercise of religion. 

The governor of Oklahoma, Kevin Stitt, says the case “stands to be one of the most significant religious and education freedom decisions in our lifetime.”

“We’ve seen ugly religious intolerance from opponents of the education freedom movement, but I look forward to seeing our religious liberties protected both in Oklahoma and across the country,” Mr. Stitt said in a statement about the Supreme Court’s decision to take the case. 

An attorney with Alliance Defending Freedom, the law firm representing the charter school board, Phil Sechler, tells the Sun that letting St. Isidore proceed is “the opposite of favoring religion” and is instead treating the school like “any other applicant” that wants to open a charter school.

The ADF notes that the Supreme Court has “repeatedly held that religious groups cannot be excluded from generally available programs solely because of their religious character.”

In a statement, Mr. Drummond told the Sun, “This case is not about excluding a religious entity from government aid, but rather the State’s unconstitutional creation of a religious public school, which constitutes an establishment of religion.”

“St. Isidore’s proponents have explicitly stated the public charter school will be ‘Catholic in every way,’ from employment regulations to Catholic instruction, which cannot be reconciled with either the Oklahoma Constitution or the U.S. Constitution. The framers of both constitutions wisely protected religious freedom by preventing the state from sponsoring any religion whatsoever,” he said.

On the question of whether St. Isidore is a government entity, Mr. Sechler noted the school was organized by the Archdiocese of Oklahoma City and the Diocese of Tulsa, and the “entire operation was formed privately and is operated privately.”

“So if the idea is they’re now a government entity because they entered a contract with the state to educate children, that is a scary proposition,” he said. “That… could threaten all kinds of relationships that faith-based organizations have with the state, including groups that run hospitals, homeless shelters, and adoption agencies.”

Critics of the school point to the case Lebron v. National Railroad Passenger Corporation, which states that when the government establishes a corporation and can appoint a majority of its directors, it is considered a part of the government when it concerns the First Amendment.

Oklahoma law gives the state’s charter school board the “sole authority to sponsor statewide virtual charter schools in this state.” Yet, since the vision for St. Isidore was not proposed or developed by the state, and it merely received approval from the charter school board, there is a question about whether or not it can be considered established by the government. 

Opponents of the school concede the Supreme Court’s decision in Carson v. Makin, which found that states must provide tuition vouchers to private religious schools if they offer them to other private schools, takes the issue of public funding for St. Isidore off the table as a potential sticking point. However, they argue that by allowing St. Isidore to be established – without the government’s approval, it would not be allowed to operate –  it could be considered established by the state. 

Mr. Sechler noted that there are many private entities, such as banks, that require government approval to operate but are not considered a government entity by virtue of the government approving their charter.

In a statement about the Supreme Court’s decision to hear the case, the ACLU said taxpayers should “not be forced to fund a religious public school that plans to discriminate against students and staff and indoctrinate students into one religion.”

Speaking about concerns that students of different faiths, or not faiths, might be discriminated against by St. Isidore, Mr. Sechler noted that the school has exemptions for students who don’t want to go to mass.  He also noted that there is no compulsion from the government for students to attend St. Isidore instead of an alternative.

A decision in the case is expected by late June or early July.