Oklahoma regulators have approved the charter application of St. Isidore of Seville Catholic Virtual School, a Catholic school that will provide an academically rigorous program for underserved, rural, and special-needs students who will receive public support. This is part of a larger movement towards school choice, which has gained momentum due to Covid-related school closures and increased parental engagement. The reactions to this news have been predictable: those who support the near-monopoly of government-run schools and public-employee unions are displeased, while those who support educational pluralism and parental empowerment are supportive.
However, a New York Times opinion piece by David French, a political conservative and longtime supporter of religious freedom and educational choice, called “Oklahoma Breaches the Wall Separating Church and State,” has taken issue with the Oklahoma Board’s decision. French argues that charter schools in Oklahoma are state actors and that the creation of state religious schools violates the First Amendment’s establishment clause.
While French is right that our Constitution distinguishes between religious and political authority, and that secular courts do not resolve religious disputes or answer religious questions, he is wrong to suggest that Oklahoma’s approval of St. Isidore’s application violates this principle. In Oklahoma, charter schools do not function as state schools, and 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, and the fact that these schools receive state funding does not make them government departments 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, and 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.
In conclusion, Oklahoma’s approval of St. Isidore’s application does not violate the principle that secular and religious authorities are, and should be, distinct. The appropriate distinction between church and state is not transgressed by equal treatment and evenhandedness, and the educational decision for St. Isidore belongs to parents.
