ADF Takes Oklahoma School-Choice Case to the Supreme Court

In the state of Oklahoma, legislators have made a priority of providing additional academic opportunities for parents and their children.

To that end, the state legislature passed a law in 1999 allowing private organizations in the state to operate charter schools. These schools are privately run, open to all students, and funded based on the number of parents who choose to enroll their children in each school.

The legislature created the Statewide Charter School Board to authorize and provide high-level oversight for these schools. And that’s exactly what the board has been doing. But when the board approved St. Isidore of Seville Catholic Virtual School in 2023, the Oklahoma attorney general sued the board, claiming it had violated state law.

That’s when Alliance Defending Freedom stepped in. Read on to learn this case’s full story.

How do charter schools work in Oklahoma?

In 1999, the Oklahoma legislature enacted the Oklahoma Charter Schools Act to provide more opportunities for families. Under the act, private organizations may contract with a public sponsor and operate charter schools in the state. These schools are open to all students and may not charge tuition or fees. While charter schools must comply with certain federal, state, and local laws and regulations, the act explicitly exempts them from all other “statutes and rules relating to schools, boards of education, and school districts.” And they maintain their own governing boards and are accountable to their sponsors. Oklahoma charter schools are overseen by the Statewide Charter School Board.

A pair of Catholic dioceses in the state, the Archdiocese of Oklahoma City and the Diocese of Tulsa, applied to the board to establish a religious charter school called St. Isidore of Seville. As the state body vested with the authority to approve virtual charter schools, the board approved St. Isidore’s application in 2023.

There was just one problem: the Oklahoma Charter Schools Act specifies that “[a] sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.” And the school itself must be “nonsectarian in its programs, admission policies, employment practices, and all other operations.”

In other words, religious organizations need not apply. And that violates the First Amendment. Government entities can’t exclude religious organizations from public benefits simply because they’re religious. The U.S. Supreme Court has affirmed that on multiple occasions. But more on that later.

Oklahoma attorney general goes after St. Isidore

Once the charter school board approved St. Isidore, two lawsuits were filed against the board. ADF is representing the board in both cases. (Read more about the first case, in which an activist group challenged the approval of St. Isidore.)

The second lawsuit was filed by Oklahoma Attorney General Gentner Drummond, who is charging the board with violating state law, specifically the “nonsectarian” requirement in the Charter Schools Act.

But the board members took an oath to uphold the U.S. Constitution, and the U.S. Supreme Court has repeatedly held that religious groups cannot be excluded from generally available programs solely because they are religious. The Free Exercise Clause requires that religious entities have the same ability to operate charter schools as non-religious entities.

The board correctly concluded that enforcing the requirement for charter schools to be “nonsectarian” would be unconstitutional, so Alliance Defending Freedom is defending the board in both lawsuits.

What has the Supreme Court ruled?

The First Amendment states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” While opponents of religion often focus on the first clause of that amendment, they often overlook the second. And they completely overlook the many ways in which the Founders intended both clauses to work together to protect religion.

One implication of the Free Exercise Clause of the First Amendment is that the government cannot treat religious people worse than it treats everyone else. For example, the government cannot exclude otherwise qualified religious organizations from generally available public benefits. In the landmark Supreme Court decision Trinity Lutheran Church of Columbia v. Comer—won by Alliance Defending Freedom in 2017—the Court ruled that such discrimination is “odious to our Constitution.”

Does this case have to do with establishing a state religion?

No. Opponents of religion in schools have long suggested that any time the government directs taxpayer dollars to a religious institution, it amounts to the establishment of religion and therefore violates the First Amendment. But that assertion is false.

The government is required by the First Amendment to treat religious and non-religious organizations equally. By approving St. Isidore’s application, the charter school board is simply treating this Catholic charter school the same as any non-religious charter school—not providing any extra benefits. Indeed, the board’s position is that schools of any religious affiliation must be free to apply for approval.

The board has an obligation to treat all charter school applicants fairly whether they are secular or religious. To do otherwise would violate the First Amendment’s Free Exercise Clause.

Does St. Isidore accept non-Catholic students?

Yes. The Board approved St. Isidore to become a virtual charter school after reviewing the school’s application and determining that it complies with applicable state law. While St. Isidore plans to educate children from a Catholic perspective, it does not require students to be Catholic.

St. Isidore’s proposed policies clearly state that the school will be open to all students, including students of “different faiths or no faith.” If the number of applicants exceeds St. Isidore’s capacity, it will use a random lottery to determine admissions.

How will St. Isidore benefit parents and students?

Parents deserve more choices about where to educate their children, not fewer. Different children flourish in different environments, and providing a wide variety of options allows parents to ensure their children are educated in a way that they know is best for them.

People of faith should not be treated as second-class citizens. Just as non-religious parents can choose to send their children to non-religious charter schools, religious parents should be able to send their children to charter schools that align with their beliefs. And all parents should be allowed to choose schools that they know will be best for their children. Regardless of whether one agrees with St. Isidore’s religious beliefs, we can all understand that providing more education options benefits everyone.

Oklahoma Statewide Charter School Board v. Drummond

• October 2023: Oklahoma Attorney General Gentner Drummond filed a lawsuit against the Statewide Virtual Charter School Board.
• November 2023: ADF attorneys filed a brief opposing the attorney general’s request for the court to cancel the contract between St. Isidore and the board.
• April 2024: ADF attorneys delivered oral argument at the Oklahoma Supreme Court.
• June 2024: The Oklahoma Supreme Court ruled that the board’s contract with St. Isidore “violates state and federal law” and directed the board to rescind the contract.
• October 2024: ADF attorneys asked the U.S. Supreme Court to hear the case.
• January 2025: The Supreme Court announced that it would hear the case.