Charter Case Challenges School Secularism
A Catholic school in Oklahoma seeks to restore the American tradition of publicly funded religious schools.
If there is one legal case that readers should be following but probably haven’t heard much (or anything) about yet, it is the case concerning St. Isidore of Seville Catholic Virtual School in Oklahoma City.
As you’d guess from the name, St. Isidore is a Catholic virtual school. Rather than forming as a private school, St. Isidore applied to become a publicly-funded charter school in the state of Oklahoma. As the Alliance Defending Freedom, which is defending the state agency that approved the school in the pending lawsuits, explains, “In Oklahoma, the Charter Schools Act allows private entities…to contract with a public sponsor and operate charter schools in the state. Although the Oklahoma Act requires charter schools to be ‘nonsectarian,’ the Free Exercise Clause requires that religious entities have the same ability to operate charter schools as nonsectarian entities.”
The above quotation explains the terms of the legal fight ahead. Opponents of the school argue that public funding of a religious school violates the First Amendment by establishing religion with public funds. Supporters of the school respond that the First Amendment prevents the government from establishing a particular religion—creating a state-sponsored church to the exclusion of other denominations—and in no way prevents the government from funding religious organizations. To exclude religious schools while funding secular schools is arguably a violation of the Free Exercise clause of the First Amendment by discriminating against schools with a religious character.
While the case is fairly new, it is set to become a major, attention-grabbing legal battle that will have greater ramifications for religion in America than any case in recent memory. It is likely to reach the U.S. Supreme Court in the next year or so. The case of St. Isidore has the potential to reverse the novel, un-American, and erroneous implementation of a “wall of separation between church and state” that has plagued this country for nearly a century.
Where does the country currently stand on public funding for religious schools? In 2023, the Supreme Court made a decision in Carson v. Makin paving the way for the St. Isidore case. In Carson, the state of Maine had a voucher program that would pay for rural families who lived far away from public schools to send their children to private schools. The program, however, excluded religious schools. The Supreme Court held that allowing vouchers for religious schools did not violate the Establishment Clause, and that paying for secular private schools but not religious schools disfavored religion and violated the Free Exercise Clause of the Constitution. The Supreme Court in Carson, citing an earlier case, noted that “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools….”
If the Supreme Court held that Maine’s program could not exclude religious schools from its voucher program, there is reason to hope that the same logic will be applied in the case of St. Isidore. Carson laid the groundwork for a return to the traditional American principle that there is no law preventing the public funding of religious schools and that treating private religious schools less favorably than secular ones violates the Constitution.
There is a historical question looming behind the disagreement over St. Isidore: Does the American tradition prohibit the public funding of religious schools? The answer is clearly “no.” In fact, the very origin of publicly-funded schools is religious in nature. With the increase of Catholic immigration to the United States in the 19th century, Protestants worried about the spread of the Roman creed. The public funding of the first systematic “public schools” was a response to this. These schools were not secular: “The schools employed Protestant hymns, prayers, and the King James Bible.” There is no legitimate argument, then, that the American tradition excludes the public funding of religious schools.
Yet for over a century, American culture has moved toward secularization—and the law went with it. Since the 1940s, the interpretation of the First Amendment has continually leaned toward greater exclusion of religion from public life.
Many Americans have accepted the secular worldview that forces religion into the purely private sphere. They have accepted the false narrative that the First Amendment means no religious activity or organization may have anything to do with public life or receive public funding. The public role of religion in the American republic has been largely forgotten in the modern world.
Thankfully, some conservatives are waking up and taking on the challenge. The St. Isidore case is a heartening example of this. Organizations like the Alliance Defending Freedom and the Notre Dame Religious Liberty Initiative have banded together to provide public support and legal aid to the cause.
Progressives have caught on to the fact that conservatives are actually refusing to cede further ground to the secular agenda and are in fact fighting back. Despite the left’s insinuations, this is not some dark conspiracy. This is simply a matter of conservative, religious, patriotic Americans putting their energy and their resources into taking a stand for the common good.
Conservatives should be bold and have hope. Religion has a place in the public conversation and the public square. Secular crusaders have been successful in rewriting the law and history regarding religion over the last century. Yet traditionally minded scholars, lawyers, and citizens are fighting back.