Religious charter school question likely to be decided in court, former AG says

His comments came one day after Attorney General Gentner Drummond withdrew an advisory opinion from O’Connor that could open the door for the Catholic Church in Oklahoma to establish the country’s first religious charter school.

“Whether a school is chartered will be up to the virtual charter board,” said O’Connor, who was appointed to the position by Gov. Kevin Stitt and lost to Drummond in his bid to be elected. “If they charter one, then I suspect the opponents will sue. If they don’t charter one, I suspect the applicant will sue.”

The Statewide Virtual Charter School Board could decide as soon as March whether to green light plans from the Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa to open a religious charter school. A spokesman for the archdiocese declined to comment on Drummond’s move.

In a letter to the board, Drummond wrote that approval of a charter school of one faith could open the floodgates for the approval of charter schools of all faiths, “even those most Oklahomans would consider reprehensible and unworthy of public spending.”

Stitt on Friday said he disagrees with Drummond’s decision but recognizes Drummond’s authority to reverse legal opinions issued by his predecessor.

The freedom of religion is foundational to this country, and religious liberties are the key to all other freedoms, Stitt said in a news conference.

“Am I supportive of the Catholics choosing and going out and setting up a Catholic charter school? 100%,” Stitt said. “I think that’s great.” The governor said he would feel the same way if Jews or Muslims wanted to launch their own charter schools.

Drummond has a different take on religious liberty.

“Religious liberty is one of our most fundamental freedoms,” Drummond wrote in his letter to the Statewide Virtual Charter School Board. “It allows us to worship according to our faith, and to be free from any duty that may conflict with our faith. The Opinion as issued by my predecessor misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”

Drummond’s other main legal contention is that state law defines and the Attorney General’s Office has previously recognized charter schools only as public schools, not as private schools, which is what Catholic leaders have proposed for St. Isidore of Seville Catholic Virtual School.

Oklahoma Catholic leaders have applied for government sanctioning and taxpayer funding for the new school, which could enroll as many as 500 students at the outset and 1,500 by the fifth year of operation if approved.

The proposed new Catholic school would serve students in areas without Catholic schools and expand online course offerings to students in existing Catholic schools, proponents have said.

The five-seat Statewide Virtual Charter School Board currently has two vacancies that could be filled at any time — one person to be appointed by Stitt and the other by House Speaker Charles McCall, R-Atoka.

McCall said he thinks Drummond’s action reinforces the need for his own school choice proposal, which passed in the Oklahoma House this week and includes an open-ended tax credit to reimburse parents for private school tuition or home-school expenses.

“AG Drummond exercised the power of his office to withdraw an opinion handed down by his predecessor regarding state funding for religious schools. Among other reasons for withdrawal, the attorney general stated that the opinion ‘misuses the concept of religious liberty by employing it as a means to justify state-funded religion,’” McCall said in a Thursday press statement.

“Today’s action shows how critical it is to provide Oklahomans with a well-thought-out, logical approach to school choice that will benefit everyone equally and limit the potential for waste, fraud and abuse. The Oklahoma Parental Choice Tax Credit Act does all of those things, and more, and will allow parents affected by today’s decision to continue providing the education of their choosing for their children.”

One of the national groups that has appealed in letters and memos to the Statewide Virtual Charter School Board to reject the application celebrated Drummond’s move. Americans United for Separation of Church and State has argued that O’Connor’s legal advice was contrary to the U.S. Constitution, the Oklahoma Constitution and the Oklahoma Charter Schools Act and would result in the government’s forcing taxpayers of no religious faith or differing religious beliefs to fund Catholic religious teachings.

The Rev. Lori Walke, a member of Americans United’s Faith Advisory Council and senior minister at Mayflower Congregational United Church of Christ in Oklahoma City, said Drummond’s withdrawal of the O’Connor opinion and new statements of caution to the virtual charter school board “advanced true religious freedom for every Oklahoman.”

“If religion and religious liberty are to flourish, we must have a strong separation between church and state. As a faith leader, I understand that when the state taxes my fellow Oklahomans of any faith or none to fund houses of worship and religious schools, it has violated the conscience and religious freedom of all of us,” Walke said. “Thank you, Attorney General Drummond.”

State Superintendent Ryan Walters, who also serves in Stitt’s Cabinet as secretary of education, took the opposite stance Friday.

“It’s disappointing that the AG opinion has reversed a needed and positive direction to allow religious charter schools in Oklahoma,” he said in a written statement. “My administration will do everything possible to promote the freedom of choice that parents should have in choosing their child’s education.”