Oklahoma regulators have approved the charter application of St. Isidore of Seville Catholic Virtual School, a move that has been met with mixed reactions. The school will provide a Catholic, academically rigorous program that focuses on the needs of underserved, rural, and special-needs students. This development is part of a larger movement towards school choice, which has been accelerated by Covid-related school closures and increased parental engagement.
While those who support educational pluralism and parental empowerment have welcomed the decision, others who are invested in government-run schools and public-employee unions have expressed displeasure. A notable exception is David French, a political conservative and longtime supporter of religious freedom and educational choice. In a New York Times opinion piece titled “Oklahoma Breaches the Wall Separating Church and State,” French expressed concern that the Oklahoma Board’s decision blurs lines that should remain clear.
Although French supports the freedom and autonomy of religious schools, he contends that charter schools in Oklahoma are arms of the government and that creating state religious schools violates the First Amendment’s establishment clause. However, this concern is misplaced. The Constitution permits reasonable and productive cooperation between governments and religious institutions. Faith-based hospitals, universities, schools, shelters, and soup kitchens promote the public good of our communities, and this beneficial cooperation is entirely consistent with secular government.
It is essential to understand that Oklahoma’s approval of St. Isidore’s application does not violate the principle that secular and religious authorities are, and should be, distinct. In Oklahoma, charter schools do not function as state schools. The fundamental premise of St. Isidore’s application and the board’s approval is that St. Isidore is not clothed with state authority merely because it receives state funds.
Under the relevant rules, the board may grant charters authorizing private actors, including for-profit ones, to operate schools. The mere fact that these schools have been invited to cooperate with the government in the provision of quality education, and that the government is paying for that education, does not make these schools government departments, arms, agencies, or subdivisions of the government.
While French cites a federal appeals court ruling that a charter school in North Carolina is a state actor and therefore bound by the 14th Amendment’s equal-protection clause, there are several federal court rulings going the other way. The question depends on the specifics of a particular state’s charter-school rules. The Supreme Court has made clear that governments may not discriminate against religious institutions that are otherwise eligible for public benefits and contracts. Once a state decides to open up education funding to non-state schools, it may not discriminate against qualified schools simply for being religious.
The appropriate distinction between church and state is not transgressed by equal treatment and evenhandedness. Moreover, no child would be assigned to St. Isidore; the educational decision for St. Isidore belongs to parents, as educational decisions should.
