For the past few years, the St. Isidore of Seville Catholic Virtual School in Oklahoma City, Oklahoma, has aimed to become the nation’s first religious charter school but has faced a slew of legal challenges in doing so. Notre Dame Law School’s Lindsay and Matt Mouran Religious Liberty Clinic, working with Notre Dame alumnus Michael McGinley, provides legal representation and consultation to St. Isidore.
St. Isidore’s mission is to pave the way for Catholic education to be more accessible to families who cannot afford religious private schools, especially in rural areas like Oklahoma. The Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa started their efforts to found the school in the wake of the rise in virtual learning during the COVID-19 pandemic.
“They are trying to find ways to serve more kids, especially in a largly rural state like Oklahoma, where a lot of times kids can’t get to a Catholic school, there are limited educational options, and so this school, a virtual school, would enable them, through the charter school program to reach more kids that would otherwise not have the gift of a Catholic education,” Notre Dame Law School professor Nicole Garnett said.
Most recently, St. Isidore’s petition was blocked by the Oklahoma Supreme Court. In June the court ruled that the charter school was unconstitutional because “the expenditure of state funds for St. Isidore’s operations constitute the use of state funds for the benefit and support of the Catholic Church,” violating the First Amendment.
On Oct. 8, the Notre Dame Religious Liberty Clinic and St. Isidore filed a petition for certiorari asking the United States Supreme Court to consider the case.
The central question for the Supreme Court will be whether charter schools like St. Isidore are more similar to private or public schools, and as such, whether they are eligible to receive public funding. Like private schools, charter schools offer students greater freedom to explore different areas of study; many charter schools cater to specific immigrant groups or students hoping to specialize in areas of study like STEM or the arts. However, like public schools, charter schools are entirely funded by the state.
“[St. Isidore] is a private religious organization. It would hire its own staff; it would set its own rules. It would receive public funds. But, you know, Oklahoma has a program that gives public funds in different ways to private schools. So that’s really what’s at issue,” Garnett said.
Notre Dame Law School’s case rests on the belief that charter schools are similar to private schools. The Religious Liberty Clinic cites the 2022 Carson v. Makin case where the Supreme Court ruled that a Maine law preventing state-sponsored private school scholarships for religious schools was unconstitutional.
“In 2022, the Supreme Court of the United States had an important decision called Carson v. Makin, and in that decision, says that if the government chooses to create a school choice program to enlist private entities, private schools, to participate, it can’t exclude religious schools. So it’s kind of a non-discrimination principle that the Free Exercise Clause of the Constitution prohibits government discrimination against religious schools and parents who would choose them for their children,” Garnett said.
As the petition for certiorari has been submitted, the liberty clinic now waits for a response from the Supreme Court.
While waiting for a response, the clinic will continue to work on other religious liberty projects, Notre Dame Law School professor and director of the Religious Liberty Clinic John Meiser said.
“A lot of [our work] involves just advising or counseling religious organizations on questions they have about structural matters, tax matters, legal liabilities and all sorts of things like that. We have students who work with asylum seekers, like the immigration system for people who maybe are fleeing religious persecution in their home countries, and then we represent them to try to get asylum in the US so they’re not sent back,” Meiser said.
The religious liberty clinic benefits not only organizations like St. Isidore; the students working with the clinic receive class credit and also gain real-world legal experience and casework.
“Our students get involved in a lot of different legal matters that, in one way or another, serve religious freedom or help religious organizations sort of live out their missions,” Mesier said.
