On June 25, the Oklahoma Supreme Court issued a highly anticipated decision on whether the state can authorize explicitly religious charter schools. The court declined, resolving the issue for now Oklahoma. But the puzzling logic of the First Amendment's enactment and free exercise clauses indicates that the U.S. Supreme Court must take up the issue (whether in this case or as it inevitably arises in other states).
According to the Supreme Court ruling in 2022 Carson v. Markin The Archdiocese of Oklahoma and the Diocese of Tulsa, which found that the exclusion of religious schools from Maine’s voucher program was unconstitutional, applied to the Oklahoma Charter School Commission to establish St. Isidore of Seville Catholic Virtual School. The board approved the decision, supported by state Attorney General John O’Connor, who cited the Supreme Court’s reasoning in a three-part piece. Makin, Espinoza vs Montana (2020), and Trinity Lutheran Church vs. Comer (2017) to justify his support. Since Oklahoma’s charter school law allows other private entities to operate charter schools, preventing religious groups from doing so would violate the Free Exercise Clause’s requirement that religious groups not be excluded from “generally available public benefits.”
However, after 2022, a new Attorney General, Gentner Drummond, will take office. He immediately rejected his predecessor's opinion and asked the board to withdraw its approval. When that didn't happen, Drummond asked the state Supreme Court to intervene. He predicted terrible things would happen as a result of the Charter Commission's actions, arguing that allowing Catholic charter schools would require Oklahoma to fund Muslim schools or even support “the blasphemous doctrines of the Church of Satan.” in Drummond v. Oklahoma Statewide Virtual Charter School BoardThe court's 6-2 majority agreed.
Their reasoning had an ominous beginning. It ruled that the charter school violated Article II, Section 5 of the Oklahoma Constitution, which: “For the use, benefit or support of any sect, church, sect or religious system, or of any clergy, preacher, minister or other religious teacher, dignitary or sectarian institution.” This is also known as the state's Blaine Amendment. But the U.S. Supreme Court effectively ruled the Blaine Amendment unconstitutional. comer and Espinoza.
The court then noted that the state's charter school law requires charter schools to be nonsectarian. But no one agreed with that. The question was whether the requirement violated the U.S. Constitution. The court also ruled that the schools were “state actors” and therefore subject to the same requirements as traditional public schools. Whether that matters depends on whether the First Amendment is involved. It is on this topic that recent Supreme Court decisions and opinions have become difficult to reconcile.
On the Establishment Clause, the court cited a 1947 Supreme Court ruling. Everson v. Board of Education The government cannot pass laws that “help one religion, help all religions, or favor one religion over another.” This quote was unique because it was the “no support” logic that led to the infamous “lemon test” that the Supreme Court murdered and buried. Kennedy Vs. Bremerton (2022). The court ruled in that case that the Establishment Clause should instead be interpreted as a “reference to historical practice and understanding.” This “test of history and tradition” highlights how those closest to the enactment of the provision understood its meaning.
In the famously tense comments of , it is not at all clear. everson—Thomas Jefferson was cited as an authority on the meaning of the Articles, even though he had nothing to do with writing or ratifying them. —That might fit this test. That might be the case, but the Oklahoma Supreme Court didn’t even mention it. Instead, it mentioned it briefly. Bremerton He then cited a series of examples related to school prayers that may be limited by historical and traditional exams. Even if the prayer case isn't diminished, it raises an entirely different question because charter schools are by definition selective schools. No one will be forced to participate in religious activities at a charter school.
Even more puzzling was the court's analysis of the free exercise clause. The majority Makin, Espinozaand comer The trilogy did not apply because it involved private entities, and the case involved “the establishment and funding of new religious institutions in the state.” However, their logic ignores the fact that most charter schools are operated by private companies. Just because these corporations, and indeed all corporations, cannot exist without a state charter does not mean that they are state actors. Simply being granted operational authority by the state is different from creating something for the state.
One could imagine, and certainly would have hoped for, a more clearly reasoned decision, but the Oklahoma court did not provide one. Even if this case is not appealed or the Supreme Court dismisses it, the conundrums the majority omitted will have to be resurfaced and resolved.
Simply put, this decision is at best a first strike against the religious charter schools, and not the final word.