Oklahoma Supreme Court Rules that Catholic Charter School Violates Oklahoma and U.S. Constitutions

By Deion A. Kathawa

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Introduction

On June 25, 2024, the nine-member Oklahoma Supreme Court handed down its opinion in Drummond ex rel. State v. Oklahoma Statewide Charter School Board. The six-justice majority’s opinion, just over 26 pages, answers the important question of whether St. Isidore of Seville—a Catholic, virtual, K-12 charter school (the School)—can contract with the state’s Charter School Board (the Board) to operate with public funding in the State of Oklahoma. The Oklahoma Supreme Court ruled that the arrangement between the School and the Board (the Contract) was unconstitutional under the Oklahoma Constitution, as well as under the Establishment Clause of the First Amendment to the United States Constitution. Only one justice, Dana Kuehn, dissented.¹

Background

The Archdiocese of Oklahoma City and the Diocese of Tulsa partnered on a joint project: to create the School, which was slated to open in August 2024. The Board voted to​     ​ approve the School’s application in June 2023 and voted to sponsor the School (as required by Oklahoma law) in October, 2023. Afterwards, Oklahoma’s attorney general, Gentner Drummond, a Republican, sought a court order​ ​declaring the Contract unconstitutional and directing the Board to rescind the Contract on the grounds that it violated state and federal law.

According to the majority opinion of the Oklahoma Supreme Court, the Contract violates the ​Oklahoma Charter Schools Act (the ​OCSA​)​, the Oklahoma Constitution (specifically, Article 2, Section 5), and the federal Establishment Clause because the School is a “public charter school” under the OCSA and the School admits that its “educational philosophy is to establish and operate . . . as a Catholic school​.​” Under the OCSA, a charter school cannot be “sectarian in its programs, admissions policies, employment practices, and operations​.​” (A 1941 decision from the Court defined a “sectarian institution” as a “school or institution of learning which is owned and controlled by a church and which is avowedly maintained and conducted so that the children of parents of that particular faith would be taught in that school the religious tenets of the church.”) Accordingly, the Court ruled in favor of the attorney general, declaring the Contract unconstitutional and ordering the Board to rescind the Contract.

The Oklahoma Supreme Court’s Opinion

The majority opinion can be broken down into two main parts: (1) the Oklahoma Constitution analysis and (2) the Establishment Clause analysis (and, relatedly, analysis of the claim that the case does not implicate the First Amendment’s Free Exercise Clause).

The School Violates the Oklahoma Constitution

Article 2, Section 5 of the Oklahoma Constitution provides that “[n]o public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” The Court stated that its precedents indicate this provision’s scope is “broad and expansive.”

Because the State is prohibited from using public money for “the use, benefit, or support of any sect . . . or system of religion”—and the School is “an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs”—the Contract “violates the plain terms of Article 2, Section 5.” To enforce the Contract would create a scenario that the framers of the Oklahoma Constitution had, in the majority’s telling, sought to avoid: “the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”

The School’s Counterarguments

​​The School made two arguments in defense of its position. The first was that Article 1, Section 5—which requires that Oklahoma’s “system of public schools” be free from “sectarian control”—does not apply because the School “is a private corporation and not a public school.” ​​​

The School’s second argument was that, even though it is a sectarian institution, the Contract “does not violate the Oklahoma Constitution or the [OCSA] because [the School] is merely a private actor contracting with the State to perform a substantial benefit for the State.”

The majority rejected both arguments. As to the first argument, the majority reasoned that the School was indeed a “public school,” rather than a private corporation, because the OCSA “expressly states that a ‘charter school’ means a ‘public school’ established by contract with a school district or other governmental entity,” and charter schools “have many of the same privileges, responsibilities, and legal requirements that govern traditional public schools.”

As to the second argument, the majority reasoned that because​ the​ School “will be acting as a surrogate of the State in providing free public education as any other state-sponsored charter school,” the School is a “governmental entity and state actor” under the Oklahoma Constitution. The majority further held that the School was a state actor under a couple of federal tests that were designed to answer such a question.

The First Amendment

The majority next turned to the federal Constitution. As will become important later, the majority began by noting that it had held that the Contract “violate[d] two provisions of the Oklahoma Constitution, which affords bona fide, separate, adequate, and independent grounds upon which” its opinion could rest. It then turned to the Establishment Clause.

The Court explained that the Establishment Clause “prohibits government spending in direct support of any religious activities or institutions” and that the relevant question in a case requiring such an inquiry was “whether religious activity involves a ‘state actor’ or constitutes ‘state action.’” The Court went on to hold that the Contract established a religious public charter school that violated the Establishment Clause. Why?

Because the School “is a governmental entity and a state actor,” it “cannot ignore the mandates of the Establishment Clause.” Even so, “a central component of [the School’s] educational philosophy is to establish and operate . . . as a Catholic school,” i.e., “fully incorporat[ing] Catholic teachings into every aspect” of its work, “including its curriculum and co-curricular activities.” And the School “will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within [the School].” For the majority, all of that was a violation of the Establishment Clause.

Finally, the majority held that the Free Exercise Clause is not implicated in this case. It distinguished three recent Free Exercise Clause cases from the Supreme Court of the United States—Carson v. Makin (2022), Espinoza v. Montana Dep’t of Revenue (2020), and Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)—by observing that the School was a public entity, not a private one​,​ as in those three cases. As the Court explained, “what [the School] requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State’s creation and funding of a new religious institution violating the Establishment Clause.”

The Lone Dissent

Justice Kuehn’s argument is nicely captured by her opening paragraph. In her view, the School “would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing [the School] to operate a virtual charter school, the State would not be establishing, aiding or favoring any particular religious organization.” In fact, “[e]xcluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause.”

On the classification of the School as “public” and, therefore, a “state actor,” Justice Kuehn contended that, while the Oklahoma Constitution requires a public school system free from sectarian control, it “does not bar the State from contracting for education services with sectarian organizations, so long as the state-funded, secular education remains available statewide.” The School would not be replacing the public school system but supplementing it - which is entirely permissible and in keeping with the purpose of the OCSA: to provide “additional academic choices” to parents and students. “Simply put, requiring the state to fund non-sectarian education is not the same as allowing some funds to flow to sectarian education programs.” And because this is the reality, the School would not be taking ​over ​a function that is traditionally and exclusively within the realm of the state.

Finally, Justice Kuehn noted that the OCSA denies religious organizations the chance to operate charter schools based solely on their religious affiliation and that the law is not narrowly tailored to achieve a compelling governmental interest (Justice Kuehn did not believe there was any compelling interest). Therefore, the ​OCSA, ​which excludes religious schools from the charter school program, fails strict scrutiny and violates the Free Exercise Clause.

Will This Case Make it to the Supreme Court of the United States?

Justice Kuehn certainly seemed to think so. At the end of her dissenting opinion, she predicted that “the Majority’s decision is destined for the same fate” as the​ ​Espinoza case, ​in ​which the Supreme Court of the United States overruled the Montana Supreme Court in 2020. Indeed, the Archdiocese of Oklahoma City has said that it plans to appeal the Oklahoma Supreme Court’s decision to the Supreme Court of the United States.

Justice Kuehn’s dissent, relying on the Supreme Court’s Free Exercise precedents, provides a roadmap that the Court could use to reverse the Oklahoma Supreme Court. However, there is a potential jurisdictional hurdle: the “independent​​ and adequate state ground” doctrine.

First articulated in Michigan v. Long (1983), the Supreme Court ​of the United States ​explained that ​it would “not undertake to review” a ​“state court decision” that “indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds.” As noted above, that is precisely what the Oklahoma Supreme Court claimed before it embarked on its analysis of the Establishment and Free Exercise Clauses. There is an argument that this decision can ​be said to ​rest on state law, which may be adequate to support the ruling independent of federal law. That point was noted explicitly by the Oklahoma Supreme Court’s opinion. Therefore, ​the Long rule would suggest ​that the Supreme Court ​of the United States ​may not step in, even though some might find such intervention desirable.  

The question, then, is whether the Supreme Court​ of the United States​ will consider whether the O​CSA​ violate​s​ the Free Exercise Clause, which would eliminate the “independent and adequate state ground” ​barrier to its review of this case​.

Conclusion

The Oklahoma Supreme Court held that the School cannot legally operate in Oklahoma​, using Oklahoma public monies, ​because it is a public school, and such a school cannot be sectarian, i.e., religious. Justice Kuehn disagreed because the School would merely supplement the public school system, in keeping with the purpose of OCSA to provide “additional academic choices” to students and parents. It remains to be seen whether, based on Michigan v. Long, the Supreme Court​ of the United States​ will let the Oklahoma decision stand on state​-​law grounds or whether the Court will find that there is a ​potential conflict between Oklahoma’s law and the First Amendment’s ​Free Exercise ​Clause ​that ​it ​needs to address. Stay tuned!

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¹ Chief Justice M. John Kane IV was recused from the case. Vice-Chief Justice Dustin P. Rowe filed a two-sentence partial concurrence, agreeing with the majority that Article 1, Section 5 of the Oklahoma Constitution “mandates that public charter schools are nonsectarian”; he otherwise dissented, without elaboration.