One of the principles underlying American democracy is the separation of church and state. This emerges from the Establishment Clause in the First Amendment to the U.S. Constitution, which prohibits Congress from passing a law related to an establishment of religion. Recent litigation in Oklahoma tests whether the Establishment Clause permits faith-based charter schools. Since they receive public funds, these schools are generally seen as public schools even though they don’t fall under the authority of elected school boards.
In 2023, the Oklahoma Statewide Virtual Charter School Board gave the green light to open a Catholic charter school. The resulting litigation made its way to the Oklahoma Supreme Court, which ruled that publicly funding a religious charter school would violate the First Amendment and the parallel provision in the Oklahoma Constitution. The board and the school asked the U.S. Supreme Court to review this decision, and the Justices heard oral arguments in the case last spring. Ultimately, though, the Oklahoma Supreme Court’s decision stayed intact when the nation’s highest tribunal deadlocked 4-4 on the appeal. (Justice Amy Coney Barrett was recused.) The U.S. Supreme Court didn’t issue a written opinion or explain how each of the Justices would have voted.
The issue didn’t take long to resurface. In March, the board denied an application by a Jewish charter school, feeling obliged to follow the Oklahoma Supreme Court’s decision in the earlier case. However, the board noted that they disagreed with the judicial ruling and would support the Jewish school in challenging it. Litigation unfolded in federal court this time, with a U.S. District Judge hearing arguments last month. He ruled in favor of the school last week, finding that the board could not deny the school’s application simply because it would teach a particular religion.
This allows the school to move forward for now, should the board find no other obstacle, but it’s probably not the end of the story. Appeals likely loom, and the question might eventually return to the U.S. Supreme Court. If it reaches a conclusive ruling on the issue, this could affect religious charter schools nationwide, altering the landscape of K-12 education.
