Last year, St. Isidore of Seville Catholic Virtual School in Oklahoma posted the following message:
Tuesday’s disappointing news delivered by the Oklahoma Supreme Court’s ruling regarding St. Isidore of Seville Catholic Virtual School has impacted plans for the school to open in August.
We will continue to fight this decision and the unconstitutional discrimination against educators and families of faith. . . . Unfortunately, we are unable to open St. Isidore for the 2024–2025 school year as planned. Sadly, our committed families will need to seek other options for the 2024–2025 school year. . . . The need for a Catholic virtual school in Oklahoma is apparent as our 200+ applications reflect.
This January, the school posted a follow-up:
St. Isidore of Seville, the Archdiocese of Oklahoma City and the Diocese of Tulsa and Eastern Oklahoma are grateful the U.S. Supreme Court has taken on this religious liberty case.
As noted previously in respect to the Ten Commandments in Louisiana schools, the First Amendment religion clause has two parts: the no establishment clause and the free exercise clause. There is an inherent tension between the two: my right to free exercise may clash with your understanding of no establishment, and vice versa. No better example could be found than the pending St. Isidore case. The Supreme Court of Oklahoma has ruled that a religious-affiliated charter school violates the no establishment clause.
The school has responded that the denial of state funds—which are available to any other charter school—constitutes “religious hostility” and thus violates the free exercise. Oral arguments before the Court (SCOTUS) are scheduled for Wednesday, April 30, at 10 a.m. The audio of the session will be available on the Supreme Court website shortly thereafter that same day. The Court will most likely render its decision before it adjourns this summer on June 30.
Charter Schools
St. Isidore, named after the patron saint of the internet, is an online K–12 academy. It is “rooted in the Catholic understanding of the human person and her or his relationship with God and neighbor.” It “fully embraces the teachings of the Catholic Church’s Magisterium, and fully incorporates these into every aspect of the school, including, but not limited to, its curriculum and co-curricular activities.” As such, the Oklahoma Supreme Court found that St. Isidore violates Oklahoma law, even though it was approved by the Oklahoma Charter School Board.
Education has, tragically, become an intense partisan issue with very little middle ground.
This controversy, like the Ten Commandments case, is momentous. It not only involves the First Amendment’s religion clauses but also touches on education politics and education reform. Charter schools are public schools allowed to operate free of the usual state regulations that govern other public schools, provided they meet certain state academic criteria. Charter schools may specialize—for example, as STEM schools or classical schools—and tuition is free.
The charter school movement emerged in the early 1990s. Minnesota passed the first charter school law in 1991 with the aim of creating public schools that operate with more flexibility, independent from traditional school districts. As of 2023, forty-five states and the District of Columbia have charter school laws. At last count, there are now just under 8,150 charter schools nationwide, serving approximately 3.8 million students. In the 2022–23 school year, charter schools enrolled 7.6 percent of all public school students in America. Sixty-one percent of charter school students are economically disadvantaged, 24 percent are Black, and 36 percent are Hispanic. According to the Fordham Institute, charter school students tend to perform better than their counterparts in traditional public schools.
The Supreme Court and Free Exercise
The Court’s tendency has been to recognize the right to a free exercise of religion if at all possible, but there are limits. In Reynolds v. United States (1879), the court concluded that the Constitution does not protect a right to polygamy no matter how many wives may increase one’s prospects in the hereafter. One of the most celebrated cases is West Virginia State Board of Education v. Barnette (1943), in which the court recognized the right of students not to participate in the Pledge of Allegiance for religious reasons, as was the case of Jehovah Witness students who deemed the pledge an act of idolatry. This was a whiplash-like turnaround because the Court had decided just the opposite only three years earlier but concluded in 1943 it had been wrong in the first case.
In the decision for Church of Lukumi Babalu Aye v. The City of Hialeah (1993), the Court ruled in favor of adherents to Cuba’s Santeria religious practices in Florida that involved the sacrifice—by cutting the carotid artery—of chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The Florida town tried in vain to outlaw the religious practice but was overruled by a startlingly unanimous Court opinion.
A more controversial decision, Employment Division v. Smith (1990), involved Oregon drug counselors who were members of the Native American Church, whose religious services include the use of peyote. The two counselors were fired. They then applied for unemployment benefits from the state of Oregon and were refused; their free exercise appeal was also unsuccessful. Smith has been criticized by conservatives and liberals alike because the Court altered the criteria by which free exercise cases are decided, raising the bar for those seeking exceptions to general laws that might infringe on their religious practice.
Politics, Reform, and Resistance
Charter schools are related to a broader push for “education choice” that includes district-wide open enrollment, magnet schools, tax credits, tax deductions, education vouchers, and home schools. Accordingly, the kind of questions the St. Isidore school raises involve more than constitutional questions; there is no area of American politics uglier than education politics. Education has, tragically, become an intense partisan issue with very little middle ground. Any perceived challenge to public education is strenuously opposed by the National Education Association (NEA) and the American Federation of Teachers (AFT) and their state affiliates.
No doubt some oppose St. Isidore not because they deem it unconstitutional but because it is religious. For them, religious influence in the classroom amounts to little more than discrimination against the LGBTQ+ population and telling “nonbelievers that they are going to hell” as a recent book, The Education Wars, puts it. Others may genuinely fear that public schools will suffer as students and sources of funding choose alternatives to their district public school. But for these education interest groups, university colleges of education, and the related administrative apparatus, it may seem a loss or gain of power.
The Democratic Party, moreover, is in the pocket of the NEA and the AFT. Democratic candidates rely heavily on their support and will reflexively oppose most any alternative to mainstream public schools, including programs that favor the disadvantaged, like the Opportunity Scholarship Program in Washington, DC, which usually has a waiting list a mile long. The program suffered repeated threats from the Obama and Biden administrations. Obama’s secretary of education even tried to revoke hundreds of scholarships, most from minority children. To be sure, the Department of Education, whose days may be numbered, was created in 1979 by President Carter as a payoff to the teacher unions, notwithstanding that education has long been understood as one of the reserve powers of the states. More generally, students too often arrive at the university lacking basic skills—although to be fair, too many graduate from college with the same deficiencies.
The COVID years (2020–2023) further undermined confidence in public education as parents were disappointed in the way the public system handled the epidemic. The NEA and AFT lobbied to keep schools closed longer than many thought necessary. Ad hoc “online learning” fell far short of serious education. Consequently, as the pandemic subsided, many parents decided it was time for a change and the nationwide choice movement gained more momentum.
A decision in St. Isidore’s favor would reverberate through the US religious community.
Although charter schools are public, because of their autonomy, they are better able to resist bad pedagogical ideas. The education establishment rarely sees a fad it doesn’t like; consequently, teachers are leaving the profession by the score, exhausted by an unending train of “new” approaches. Reading novels is passé; Dostoevsky and Jane Austen were always unreasonable, never mind that previous generations of high schoolers were up to the task. History is a waste of time if it can’t show its immediate utility. John Dewey’s destructive ideas dominate colleges of education even if their own faculty don’t realize it, and Dewey’s influence is now in colleges of arts and sciences.
Amid these considerations, it seems reasonable to ask a question too often ignored: “What is best for Oklahoma students?” The Sooner State consistently ranks near the bottom in national education rankings, often cited as forty-ninth or fiftieth out of the fifty states, measured by standardized test scores, graduation rates, and teacher compensation. Considered in that light, and given the traditional success of Catholic education, one might think that a Catholic charter school is a small step in a promising direction. Michael Scaperlanda, chancellor of the Archdiocese of Oklahoma City and chairman of St. Isidore’s Board, noted that the archdiocese wanted to improve educational access for Oklahomans.
“Too many children in Oklahoma—particularly in remote and rural communities—don’t have robust learning opportunities or access to schools that may serve their children’s individual needs,” Scaperlanda said in a March 6 statement. “We want to help fill that gap by offering an excellent, Catholic education to all interested families across the state, regardless of their zip code, their income, or any other circumstance.”
The outcome of this case is uncertain. The Court has decided a trio of cases in the past few years that have loosened the restrictions regulating government aid to religious organizations. For example, in 2017, the Court allowed government grants to a Lutheran Church–sponsored school to enhance playground safety. Yet none of the recent cases is as momentous as St. Isidore.
On the other hand, in a “simple twist of fate” (to quote Bob Dylan), it is conceivable that the SCOTUS vote could end in a 4–4 tie on the Court. The Court, of course, has nine justices, but not always and not in this case: Justice Amy Coney Barrett has recused herself, meaning she will not participate. Justices do not have to give a reason for their recusal, but it is speculated that her long-standing friendship with a former colleague at Notre Dame Law School, Nicole Stelle Garnett, may have left her conflicted because Garnett is representing St. Isidore. If the Court should vote 4–4, the previous decision of the Oklahoma Supreme Court disallowing the school will stand.
A decision in St. Isidore’s favor would reverberate through the US religious community. If the school does prevail, the ruling will presumably open the door not only to Christian schools but to proponents of any bona fide religion looking for their fair share. There exist, for example, approximately 260 Islamic K–12 private schools in the country and over 900 private Jewish day schools. Both religions operate excellent schools. While they may not be interested in the charter school template, with its benefits and restrictions, it is reasonable to expect that, in addition to St. Isidore, there would likely be other religious-affiliated schools who choose to pursue charter school status.