By John Kruzel
WASHINGTON (Reuters) -The U.S. Supreme Court agreed on Friday to hear a bid led by two Catholic dioceses to establish in Oklahoma the nation’s first taxpayer-funded religious charter school in a case testing the separation of church and state.
A lower court blocked the establishment of St. Isidore of Seville Catholic Virtual School, ruling that its funding arrangement violated the U.S. Constitution’s First Amendment limits on government endorsement of religion. The Supreme Court took up an appeal of that ruling by a state school board and the organizers of the proposed school.
St. Isidore, planned as a joint effort by the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, would offer virtual learning from kindergarten through high school. The proposed Catholic charter school has never been operational amid legal challenges to its establishment.
St. Isidore has sought to become the first religious charter school in the United States, according to Nicole Garnett, a professor at Notre Dame Law School, which has provided legal representation to the school’s organizers.
While some U.S. charter schools have been affiliated with religious institutions, their curriculum has been secular, added Garnett, a former law clerk for conservative Supreme Court Justice Clarence Thomas.
St. Isidore, for its part, “would teach religion as the truth of the matter,” Garnett said.
Conservative Justice Amy Coney Barrett, a former Notre Dame Law School professor, recused herself from the Supreme Court’s decision to hear the case.
Charter schools in Oklahoma are considered public schools under state law and draw funding from the state government. Organizers estimated in 2023 that St. Isidore would cost Oklahoma taxpayers up to $25.7 million over its first five years in operation.
St. Isidore chose not to set up as a private school because tuition costs would have been prohibitive for the rural families it seeks to serve, its organizers said.
Its pursuit of approval as a charter school has divided top officials in the Republican-governed state.
The state’s then-Attorney General John O’Connor, a Republican, in December 2022 wrote that recent U.S. Supreme Court rulings provided a legal basis for the religious charter school – an opinion embraced by Oklahoma’s Republican Governor Kevin Stitt.
But O’Connor’s successor as attorney general, Republican Gentner Drummond, withdrew that opinion in February 2023, saying it “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”
Oklahoma’s Statewide Virtual Charter School Board in June 2023 approved the plan to create St. Isidore in a 3-2 vote.
Drummond sued to block St. Isidore in an October 2023 legal action filed at the Oklahoma Supreme Court, saying he is duty bound “to protect religious liberty and prevent the type of state-funded religion that Oklahoma’s constitutional framers and the founders of our country sought to prevent.”
Oklahoma’s top court in June 2024 ruled against the school board and St. Isidore’s organizers, finding their funding arrangement violated Oklahoma law by using “state funds for the benefit and support of the Catholic Church.” The ruling also concluded that the proposed school ran afoul of the First Amendment’s “establishment clause,” which restricts government officials from endorsing any particular religion, or promoting religion over nonreligion.
The state court decision prompted the Oklahoma school board and St. Isidore to appeal to the justices, arguing that the ruling effectively disregarded their religious protections under the First Amendment.
FIRST AMENDMENT CONSTRAINTS
School board officials and St. Isidore also claimed that Oklahoma’s top court erred by deeming St. Isidore a government entity. The First Amendment generally constrains the government but not private entities.
Secular opponents have said religious charter schools would violate legal limits on government involvement in religion.
Under what is called the “ministerial exception,” religious employers are shielded from certain workplace bias lawsuits even in instances that might otherwise violate anti-discrimination laws. St. Isidore’s organizers have said that exception would apply to every teacher and administrator at the proposed school.
The Supreme Court’s conservative justices have widened religious rights in a series of rulings in recent years including cases involving schools in Maine and Montana.
In the Maine ruling, the court backed two Christian families in their challenge to that state’s tuition-assistance program that had excluded private religious schools. The justices found that Maine was required to pay for students to attend religious schools if it did so for private secular schools.
In 2020, the Supreme Court endorsed Montana tax credits that helped pay for students to attend religious schools. The court also ruled in a Missouri case in 2017 that churches and other religious entities cannot be flatly denied public money even in states whose constitutions explicitly ban such funding.
(Reporting by John Kruzel; Editing by Will Dunham)
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