Some Quick Thoughts on the Oklahoma Charter School Case

St. Isidore Catholic School is caught in a legal dilemma

I know that everyone's following SCOTUS in this final week of the term, but I'd like to offer some quick thoughts about an important church-and-state decision a couple of days ago in Oklahoma. In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court ruled 6-2 that the state had violated state and federal law by contracting with a Catholic school to operate a charter school. Although I favor educational pluralism and am open to persuasion, under current SCOTUS religion clause jurisprudence, the Oklahoma court probably got this one right.

Charter schools are a hybrid: publicly chartered (hence the name) and funded but independently managed. Unlike private schools, but like regular public schools, they're free. The state picks up the tab. But unlike regular public schools, and like private schools, charter schools rely on parental choice. Only students whose parents have selected a charter school attend it, though a charter school must accept all who apply. And although charter schools have more flexibility than regular public schools—that's the whole point, to allow competition in the interests of the students—charter schools are more heavily regulated than private schools in terms of curriculum, teacher qualification, and other things.

In Drummond, the Oklahoma Charter School Board contracted with St. Isidore of Seville Catholic Virtual School to run a charter school. St. Isidore forthrightly asserts that it will incorporate Catholic teachings into every aspect of its curriculum. Although most contracts the school board makes with charter schools prohibit religious affiliation, the school board made an exception in this case.

This week, the Oklahoma Supreme Court ordered the school board to rescind its contract with St. Isidore. The contract, the court said, violated the Oklahoma Charter Schools Act, which requires charter schools to be non-sectarian (as I say, the board made an exception for St. Isidore), the Oklahoma Constitution, which prohibits public money from being used, directly or indirectly, to benefit a religious institution, and the US Constitution, which prohibits the establishment of religion. The court also rejected St. Isidore's argument that rescinding its contract with the school board would violate the school's free exercise rights under the U.S. Constitution.

It's not quite as clear as the Oklahoma court makes it seem, but the decision is probably correct, at least respecting the federal constitutional claims. Legally speaking, St. Isidore is caught in a dilemma—a dilemma that its hybrid nature as a charter school creates. If St. Isidore qualifies as a public school, there's an obvious Establishment Clause problem. St. Isidore argued that it shouldn't be seen as a public school, but as an independent contractor. But the Oklahoma statute specifically provides that charter schools are "public." And that's not just a matter of form, but also substance. As a charter school, St. Isidore is funded entirely by the state, must take all students who apply, and must comply with curricular and other requirements that don't apply to private schools.

On the other hand, if St. Isidore is a private actor, the US Supreme Court's recent free exercise cases may not help it too much. In Carson and Espinoza, the Court ruled that the state cannot exclude private religious schools from tuition assistance programs simply because they are religious—that would violate the schools' right to practice their religion. That seems correct to me. But in those cases, the Court stressed that public funds went to private schools through the filter of parental choice. Parents who received tuition assistance designated which schools would receive the money.

St. Isidore would be entirely free, by contrast, and Oklahoma would be funding the school directly. True, the amount of money St. Isidore would receive would depend, presumably, on the number of students it enrolled—and that would depend on parental choice. But the state is more in the foreground (and the parents more in the background) in this case than in either Carson or Espinoza, and it feels different, somehow.

So, either way, whether St. Isidore is a public school or a private school, it seems to me it should lose this case. That's a pity, because I'm sure the educational offerings at St. Isidore would exceed those in many other schools. Perhaps the school should reorganize as a purely private school and participate in Oklahoma's voucher program. Anyway, St. Isidore will surely seek cert, so we'll see what SCOTUS has to say. But not this week!

Comments

[greasefire]

I don't know about Oklahoma but neither of these statements is universally true of charter schools: "Only students whose parents have selected a charter school attend it, though a charter school must accept all who apply." For example, my local elementary school growing up in CA was a charter and I didn't have a right to attend another school, though there were potential mechanisms to do so. And some charters are allowed to practice selective admissions, though that is definitely much more closely regulated.

[greasefire]

To the first point, in New Orleans virtually all schools are charters. And in Florida a charter network took over an entire county's school system.

[not guilty]

As I wrote on the open thread, in addition to the analysis of the federal First Amendment's Establishment Clause, the Oklahoma Supreme Court found the St. Isidore Contract to violate two provisions of the Oklahoma Constitution, which affords bona fide, separate, adequate, and independent grounds upon which its opinion is rested (as the Court expressly opined at ¶ 38). That should foreclose SCOTUS review pursuant to Michigan v. Long, 463 U.S. 1032, 1041 (1983).

Whether the current Court will revisit Long is anyone's guess.

[David Nieporent]

Your analysis there was mistaken. States can provide greater protection via their constitutions than the federal constitution, but they can't provide lesser. Or to put it another way, if a state policy violates the federal constitution, then whether it also violates the state constitution is irrelevant. To pick an obvious example: suppose the Oklahoma constitution forbid integrated schools. That would not be a defense that a segregated school could raise, because it violates the 14A anyway.

[not guilty]

Uh, no. The liberty at issue here is the constitutional freedom from governmental action respecting an establishment of religion. The Oklahoma Supreme Court recognizes that, based on the Oklahoma authorities it cites and analyzes Article 2, § 5 of the state constitution protects against the Catholic Church operating a public school on the public's nickel — separately from and independent of whether the First Amendment permits or prohibits that establishment of religion.

Having determined that, the Court went further than it needed to resolve the case and found a violation of the First Amendment Establishment Clause as well.

[JD85]

If this is allowed I guess we’ll see quite a few madrasas and yeshivas start popping up with government funding too.

Publicly funded religious schools is not a world I want to live in

[Ed Grinberg]

“Publicly funded religious schools is not a world I want to live in”
If it were up to me, I’d eliminate all public funding of schools (of any kind). But I’d like to address your specific point re: the horror of publicly-funded religious schools.
How do you like our current world, without publicly-funded religious schools? I must say, I like it less & less. I suspect that, had we not been so eager to banish religion from public schools, maybe it (our current world) wouldn’t be quite so bad.

[Seaboltm]

If charter schools are better than regular public schools because they are less heavily regulated, there is an obvious simple solution. State legislature can easily remove onerous regulations from regular public schools. The state legislatures put the regulations in place after all. If less regulation is better, remove them. Then no need for charter schools. Problem and controversy solved.