Oklahoma Attorney General Gentner Drummond filed a lawsuit Friday against the Statewide Virtual Charter School Board for its decision to approve what would be the nation’s first publicly funded religious school, the St. Isidore of Seville Catholic Virtual Charter School.

The board voted 3-2 earlier this month to approve the contract for St. Isidore. The board’s chair and one of the two “no” votes, Robert Franklin, recently refused to sign off on the contract, saying it would violate the law and his oath of office.

The lawsuit comes after another suit was filed against the board by Oklahomans, a parental advocacy organization and several legal groups, including Americans United for the Separation of Church and State and the ACLU.

What does Drummond argue in the suit?

Drummond has, from the beginning, warned the board that approval for St. Isidore would violate several laws from the U.S. Constitution and the Oklahoma Constitution. Arguments from the suit include:

1. The board violated the Establishment Clause of the First Amendment of the U.S. Constitution.
2. The board violated Oklahoma’s Constitution, which says public schools shall be “free from sectarian control,” and that no public money shall ever be used, directly or indirectly, to support any “sect, church, denomination, or system of religion, or sectarian institution.”
3. The board violated the Oklahoma Charter Schools Act, which prescribes that charter schools “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.” It also says a charter school sponsor — in this case, the Statewide Virtual Charter School Board — may not authorize a charter school that is affiliated with a nonpublic sectarian school or religious institution.
4. A  2016 statewide vote rejected a proposed constitutional amendment that would’ve allowed money to go to sectarian organizations.
5. A landmark 2015 Oklahoma Supreme Court case that found the placement of a Ten Commandments Monument at the Oklahoma State Capitol to be unconstitutional. From that opinion: “While the constitutional framers may have been men of faith, they recognized the necessity of a complete separation of church and state and sought to prevent the ills that would befall a state if they failed to provide for this complete separation in the Oklahoma Constitution.”
6. Oklahoma’s ability to receive federal education dollars could be jeopardized. To get federal education funds, states submit a plan to the Secretary of the U.S. Department of Education that says the state will comply with all applicable laws and regulations. Under the Elementary and Secondary Education Act, a charter school must be “nonsectarian in its programs, admissions policies, employment practices, and all other operations.” In 2021, Oklahoma received $1.13 billion in federal education funds.
7. Establishment of St. Isidore sets a precedent for all kinds of taxpayer funded religious schools, which Drummond says may be in conflict with the values and morals of Oklahomans. As an example, he lists the possibility of a Muslim school with Sharia Law funded by taxpayers.

Drummond: Charter schools are state actors

Drummond cites language from St. Isidore’s application, which he says makes “pointedly clear” the schools’ sectarian intent:

“To create, establish, and operate the School as a Catholic school. It is from its Catholic identity that the school derives its original characteristics and its structure as a genuine instrument of the Church, a place of real and specific pastoral ministry. The Catholic school participates in the evangelizing mission of the Church and is the privileged environment in which Christian education is carried out. In this way Catholic schools are at once places of evangelization, of complete formation, of inculturation, of apprenticeship in a lively dialogue between young people of different religions and social backgrounds.”

He also cites language from the school’s contract with the state board, which says St. Isidore is “a privately operated religious nonprofit organization,” that St. Isidore is “affiliated with a nonpublic sectarian school or religious institution,” and that the contract authorizes St. Isidore to “implement the program of instruction, curriculum, and other services as specified in the application.”

In the filing, Drummond predicts the board will likely argue St. Isidore holds a degree of separation from the state by having a charter contract held by a private entity. The attorney general argues Supreme Court precedent holds that a private entity’s actions are of the state’s, “when the state has authorized that entity to act in the state’s place with the state’s authority.”

The Oklahoma Legislature defined charter schools as public schools in state statute, which means charter schools should be treated as public schools, and therefore, Drummond says, as state actors.

“This Court should not allow St. Isidore to avail itself of the benefits of being a public school while it cherry picks rules that apply to it — conveniently not to include the separation of church and state,” Drummond writes.

Did the approval votes count?

The entire case is underlined with an enormous question of voting legitimacy. In both votes to approve St. Isidore’s application and contract, board member Brian Bobek wasn’t eligible to vote yet, according to the attorney general’s office. Without Bobek’s vote — which was facilitated by his eleventh-hour appointment to the board days before the application approval vote — the measure would have failed.

A spokesperson for the attorney general’s office said this part of the puzzle is out of its hands:

“If the legitimacy of Mr. Bobek’s presence on the board is challenged, it would come from a third-party litigant. We responded to a question from the board chair and expressed our concerns regarding the timing of the term, but that’s the extent of it from our end.”

Responses from both sides

After the suit’s announcement Friday, several officials and advocacy groups released statements in response.

Oklahoma Gov. Kevin Stitt:

“This lawsuit is a political stunt and runs counter to our Oklahoma values and the law. AG Drummond seems to lack any firm grasp on the constitutional principle of religious freedom and masks his disdain for the Catholics’ pursuit by obsessing over nonexistent schools that don’t neatly align with his religious preference. His discriminatory and ignorant comment concerning a potential Muslim charter is a perfect illustration.”

Litigants for the other St. Isidore lawsuit against the board, including Americans United for Separation of Church and State, the American Civil Liberties Union, the Education Law Center and the Freedom from Religion Foundation:

“We applaud Attorney General Drummond for his efforts to protect church-state separation and public education in Oklahoma. The law is clear: Charter schools are public schools that must be secular and serve all students. St. Isidore of Seville Catholic Virtual Charter School plans to discriminate against students, families and staff, and indoctrinate students into one religion. Allowing a religious public charter school like St. Isidore to operate would be a sea change for our democracy.”

The National Alliance for Public Charter Schools:

“The National Alliance for Public Charter Schools supports Oklahoma’s attorney general in this challenge to safeguard public education. We support preserving the original intent and legal status of public charter schools to protect the constitutional rights of the students and teachers who choose these unique public schools. Charter schools are public schools and are state actors for the purposes of protecting students’ federal constitutional rights.”

State Superintendent of Public Instruction, Ryan Walters, who serves the Statewide Virtual Charter School Board as an ex-officio non-voting member:

“Oklahomans hold their faith and their liberty sacred, and atheism should not be the state-sponsored religion. We should not play politics with the future of our kids through this misguided lawsuit. … The approval of St. Isidore of Seville is a landmark in the battle for educational and religious freedom, and I am proud that Oklahoma is leading the way. We will never back down.”