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Notre Dame Law’s Religious Liberty Clinic helps found first religious charter school in Oklahoma

| Thursday, September 7, 2023

In Oklahoma, St. Isidore of Seville Catholic Virtual School is hard at work to welcome its first 500 students by fall of 2024 as it aims to become the first religious charter school in the nation, said Brett Farley, Executive Director of the Catholic Conference of Oklahoma. As the school faces legal challenges, St. Isidore has been aided by the Notre Dame Law School Religious Liberty Clinic, which has provided legal consultation and representation, according to Farley and members of the Religious Liberty Clinic.

Farley explained that the decision to found a Catholic virtual charter school was one motivated both by necessity and opportunity. On one hand, Farley said, there exists a great need for better education in Oklahoma, specifically in rural parts of the state. According to U.S. News and World Report, Oklahoma ranks 48th in the U.S. in public education.

“The problem is that most parents can’t afford private education and/or there isn’t a private school near them to attend even if they could afford it,” Farley said.

Emma Duffy | The Observer
Notre Dame Law School.

Then with the rise in virtual learning during the COVID-19 pandemic virtual learning, the Archdiocese of Oklahoma City and the Diocese of Tulsa began to consider founding a virtual school in order to more easily reach students in remote areas.

“We recognized the silver lining in the clouds, ‘Hey, we’ve got an opportunity here to leverage technology to supply education in a way that we just never really thought about before because we didn’t have to think about it. But now that we have to, we recognize we can deliver Catholic education to everyone in the state,’” he explained.

In order to address the cost-prohibitive nature of private, Catholic education St. Isidore turned to the idea of establishing a charter school that could truly make the Catholic education widely available, Farley said.

“We realized, ‘Hey, what if we did this in the context of a charter school? We could really not just meet those needs, but we can change the game entirely,’” he said.

However, many legal issues stand in the way of founding the school. Most notably, the Oklahoma Charter Schools Act states that charter schools cannot be “affiliated with a nonpublic sectarian school or religious institution.”

In an interview with The Observer, Nicole Garnett, the Associate Dean for External Engagement at the Law School and a Professor of Law, explained that, “every state that has charter schools – there’s 45 – prohibits them from being religious.”

At this point St. Isidore reached out to the Notre Dame Religious Liberty Clinic for legal aid and for help organizing the school, Farley said.

“The dioceses in Oklahoma knew about the Clinic … so they reached out and said, ‘We’re thinking about this. What do you think?’” Garnett recounted. “I had already been writing quite a bit about religious charter schools, so it was a natural fit for us to take that work on.”

On Dec. 1, 2022, St. Isidore and the Religious Liberty Clinic received encouraging news when then state attorney general John M. O’Connor released an opinion, declaring “based on the first Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions [referring to three Supreme Court rulings that expanded ways religious schools can receive public money] … the U.S. Supreme Court would likely hold these restrictions unconstitutional.”

St. Isidore was granted approval for its founding by the Oklahoma Statewide Charter School Board on June 5 by a margin of 3-2 after initially being denied 5-0 in April.

However, on Feb. 23, current state attorney general, Gentner Drummond, released a letter rescinding O’Connor’s opinion. 

On July 31, nine Oklahoma residents and the Oklahoma Parents Legislative Action Committee, represented  by the American Civil Liberties Union (ACLU), Americans United for Separation of Church and State, Education Law Center and Freedom From Religion Foundation, filed a complaint alleging that the founding of St. Isidore as a charter school was illegal and asking for an injunction by the District Court of Oklahoma to stop the school from opening.

Farley explained that while lawyers from the Religious Liberty Clinic have not yet had to appear in court they have given “quite a bit of legal advice” to help St. Isidore and described them as “the tip of the spear” in the school’s efforts to open. Farley said that he expected the court to rule some time in the next year on the question of injunction and that the decision would likely be appealed by either side.

As it stands now, the school still has approval to open next year.

Farley specifically pointed to Nicole Garnett and John Meiser, Notre Dame Law Professor and Director of the Religious Liberty Clinic, as being crucial to helping the school’s legal case. “We really wouldn’t have been able to do what we’ve done without their assistance.”

In an email with The Observer, Meiser stated that because the Religious Liberty Clinic is representing St. Isidore “in ongoing litigation,” he could not discuss the case in detail. However, Meiser wrote that the Religious Liberty Clinic has “been proud to assist the dioceses of Tulsa and Oklahoma City in their mission to bring the gift of new educational opportunity to the many families and communities across Oklahoma that lack robust educational choices.”

In an interview with The Observer, Garnett outlined the legal case that St. Isidore and the Religious Liberty Clinic are making.

“In Carson v. Mason the Supreme court has said if the government extends public benefits of private individuals or organizations, it can’t exclude from participation, religious individuals and organizations,” Garnett explained. “Religious charter schools are privately operated…so to exclude religious providers would be unconstitutional religious discrimination.”

Farley also emphasized that St. Isidore’s case hinges on the argument that religious charter schools are protected by the free exercise clause of the first amendment. He noted that the government and religious institutions already collaborate on a number of issues.

“Religious communities and governments at all levels – local, state and federal – have had very close participation and collaboration,” he said. Farley highlighted public funding that goes to Catholic hospitals and disaster relief efforts as examples.

Farley acknowledged the possibility of the case eventually reaching the U.S. Supreme Court but cautioned that, by looking at similar cases, it could take three to five years for this to happen.

Rick Garnett, a Professor of Law and Concurrent Professor of Political Science at Notre Dame, and the Director of the Law School’s Program on Church, State and Society, in an email to The Observer, expressed optimism that the Supreme Court would likely rule in St. Isidore’s favor if it did eventually take up the case.

“It is clear, given the Court’s recent cases, that governments are not allowed to discriminate on the basis of religion when it comes to permitting religious schools to participate in school-choice programs,” Garnett said.

Farley said that the school remains hopeful about its mission, despite the legal battles.

“I’m optimistic that we will ultimately prevail. Whether we will prevail in time to open school 2024 is anybody’s guess,” Farley said. “If this case makes its way to the Supreme Court and they rule the way that they have already, I think it will be the final chapter in this grand debate over whether religious institutions can fully participate in public education.”

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