Oklahoma regulators have approved the charter application of the St. Isidore of Seville Catholic Virtual School, which will offer a Catholic, academically rigorous program to underserved, rural, and special-needs students. The school will receive public support, as do other charter schools. This development is part of the growing school choice movement, which has accelerated due to Covid-related school closures and increased parental engagement.
Reactions to the news have been predictable, with those invested in the near-monopoly of government-run schools and public-employee unions expressing displeasure, while those who support educational pluralism and parental empowerment are supportive.
A surprising exception was 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.” French suggested that the Oklahoma Board’s decision is a troubling development that blurs lines that should be clear. French supports the freedom and autonomy of religious schools, but he contends that charter schools in Oklahoma are arms of the government — “state actors” in Constitution-speak — and that to “create state religious schools” violates the First Amendment’s establishment clause.
Our Constitution distinguishes between religious and political authority to protect the integrity of religious institutions and the liberty of religious conscience. While the Constitution permits cooperation between governments and religious institutions, it does not permit government officials to select religious teachers, ministers, or doctrines. However, our Constitution does allow reasonable and productive cooperation between governments and religious institutions.
Oklahoma’s approval of St. Isidore’s application does not violate the principle that secular and religious authorities are distinct. In Oklahoma, charter schools do not function as state schools. St. Isidore is not clothed with state authority merely because it receives state funds. A wide array of charter schools have been approved in Oklahoma, including for-profit ones, to operate schools. The government’s payment for education does not make these schools government departments, arms, agencies, or subdivisions of the government.
While a federal appeals court has ruled that a charter school in North Carolina is a state actor and therefore bound by the 14th Amendment’s equal-protection clause, several federal court rulings go the other way. 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. Parents, not the government, make educational decisions for St. Isidore.
