Approval of Oklahoma religious charter school would not violate Constitution

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16-05-2025

St. Isidore of Seville Catholic Virtual School does not yet exist, but it may soon decide the future of religious liberty in public education. Approved as a public charter school by Oklahoma's Statewide Virtual Charter School Board, St. Isidore plans to offer tuition-free education grounded in Catholic teaching — to all, required of none, and publicly accountable.
Its opponents argue that a religious school should never receive public funding, even if it meets every academic and legal standard. But their objection reveals a deeper question: Does the First Amendment require the government to exclude religious institutions from public life, or does it forbid that exclusion?
That question is not rhetorical. It defines whether neutrality means fairness — or forced secularism. It tests whether religious families are full citizens in a pluralist democracy — or guests, welcome only on secular terms.
The First Amendment contains two clauses, often cited as if they compete, but in truth they complete each other:
'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'
These words are not in tension. They are in balance. One forbids the state from controlling religion through top-down mandates (such as requiring the Bible to be taught in every public school classroom). The other forbids it from excluding religion when it is a bottom-up expression of the people. Together, they form a constitutional architecture that neither privileges belief nor penalizes it.
James Madison, author of the First Amendment, insisted that religion was not a right granted by government but a natural liberty. In his "Memorial and Remonstrance Against Religious Assessments," he wrote that religion must be left to 'the conviction and conscience of every man.' Government could neither compel nor suppress it.
The modern phrase 'separation of church and state' appears nowhere in the Constitution. It comes from a private letter by Thomas Jefferson, who — ironically ― attended religious services held inside government buildings. Separation, to the Founders, meant institutional noninterference, not spiritual exclusion.
Religious participation in public life was assumed — not feared. To exclude a faith-based school from a neutral public program today is not fidelity to the First Amendment. It is the exact opposite.
More: Drummond: Allowing St. Isidore school would threaten religious liberty | Opinion
The U.S. Supreme Court has spoken plainly: A religious institution cannot be excluded from a public benefit program simply because it is religious.
In Trinity Lutheran v. Comer (2017), Missouri denied a church preschool access to a public playground resurfacing grant solely due to its religious status. The court ruled this exclusion unconstitutional. Chief Justice John Roberts called it 'odious to our Constitution.'
In Espinoza v. Montana Department of Revenue (2020), the court held that if a state provides public scholarships to private schools, it cannot deny them to religious schools because of their religious identity. 'A State need not subsidize private education,' the court said. 'But once it decides to do so, it cannot disqualify some private schools solely because they are religious.'
Two years later, Carson v. Makin (2022) extended this logic from religious status to religious use. Maine had denied tuition assistance to parents who selected schools that provided religious instruction. The court ruled this, too, unconstitutional.
Finally, in Zelman v. Simmons-Harris (2002), the court upheld a school choice program that allowed public funds to follow families — whether they chose secular or religious schools — so long as the program was neutral and driven by individual choice.
The line across these cases is unbroken: When the government opens a public benefit to private participants, it may not disqualify religious institutions merely because they are religious. That principle is not advisory. It is controlling law.
More: OK must improve education. Supreme Court should allow religious charter school. | Opinion
Attorney General Gentner Drummond argues that charter schools are public in every constitutional sense — that because they are funded and authorized by the state, they must remain strictly secular. But that logic confuses funding with control, and oversight with ownership.
Oklahoma law defines charter schools as nonprofit entities initiated by private actors through a contract with the state. They are publicly accountable but independently operated. The state does not dictate curriculum, hiring or religious affiliation — nor should it.
This distinction is critical under Rendell-Baker v. Kohn (1982), where the Supreme Court ruled that even a privately operated school receiving over 90% of its funding from the government was not a state actor. The key issue was who made internal decisions — not who wrote the checks.
In Mitchell v. Helms (2000), the court upheld public aid to religious schools, so long as the aid was neutral and distributed without favor or control. That principle governs here.
Charter schools are private educational partners within a public system — not government entities. If funding alone made them government entities, the same would apply to hospitals, foster agencies and food banks. And yet, religious organizations partner in all of those spheres — without controversy, and without violating the Constitution.
Attorney General Drummond relies on mid-20th-century Establishment Clause cases — Engel v. Vitale (1962), School District of Abington v. Schempp (1963), and McCollum v. Board of Education (1948) — to argue that religious expression in any publicly funded school violates the Constitution.
But these cases addressed a very different context: state-mandated religious practice inside traditional public schools. In Engel, the state composed a prayer and required its recitation. In Schempp, Bible readings were compulsory. In McCollum, religious instructors entered public classrooms during school hours under state authority.
None of these apply to a privately initiated, independently operated charter school selected voluntarily by families.
St. Isidore imposes no religious exercise. It is not the state mandating prayer — it is the community requesting a public option that reflects its convictions. It does not conscript students into belief. It invites families into a curriculum they freely choose.
The Establishment Clause prohibits government imposition — not religious presence in public life. A school like St. Isidore does not violate that clause. It fulfills the balance the Founders intended: a state that neither commands faith nor forbids it.
To invoke Engel or Schempp against such a model is not constitutional fidelity. It is historical misapplication.
Opponents of St. Isidore argue that public education must remain entirely secular because taxpayer dollars are involved. But this objection collapses under the one feature that changes everything: parental choice.
The Supreme Court has consistently held that when parents — not the government — choose where public funds go, the state does not endorse religion by permitting religious options.
In Zelman v. Simmons-Harris (2002), the court upheld a school voucher program even though many parents selected religious schools. The decisive factor was this: The program was neutral and the funding flowed through individual family decisions.
This echoes Pierce v. Society of Sisters (1925), which affirmed that 'the child is not the mere creature of the state.' Parents have a constitutional right to direct their children's education. And in Wisconsin v. Yoder (1972), the court went further — holding that religious communities could withdraw from state schooling altogether to preserve their faith formation.
St. Isidore is not imposed. It is chosen. It is not the state prescribing theology — it is the state respecting the constitutional primacy of the family.
When the government offers diverse public options, it cannot punish parents who choose a religious one. That's not neutrality. That's control.
Brian Montgomery is a licensed occupational injury examiner in Oklahoma with significant experience in both insurance and ministry. A native of Cyril, Oklahoma, Brian holds a bachelor's degree from East Central University and a master's degree from the Southern Baptist Theological Seminary.
This article originally appeared on Oklahoman: Court should rule in Okla. religious charter school's favor | Opinion