By James Finck, Ph.D. | Southwest Ledger
In December 2022, outgoing Oklahoma Attorney General John O’Connor dropped a bombshell opinion that, if upheld by the courts, has the potential to change education forever.
He wrote his opinion at the request of the Statewide Virtual Charter School Board who asked if the restrictions against religious organizations sponsoring charter schools remained legal with recent court cases that seemed to challenge the idea that the First Amendment Establishment Clause meaning a separation between church and state. In his opinion, O’Connor not only agreed with the board that the religious restrictions were now unconstitutional, but went a step even further and said that charter schools were, in fact, not officially public. So even if the Establishment Clause restricted states from working with religious institutions, it would not apply to charter schools.
At the time Oklahoma Gov. Kevin Stitt and many in the Legislature praised this opinion. Stitt said, “Attorney General John O’Connor’s opinion rightfully defends parents, education freedom, and religious liberty in Oklahoma. Ultimately, government takes a backseat to parents who get to determine the best learning environment for their child.”
Based on this support, on June 5, 2023, the board approved an application from the Catholic church for the country’s first religious charter school. While there is a great deal of support in the state, surprisingly one of the voices of opposition came from the new state attorney general, Gentner Drummond, who believed it unconstitutional.
“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” Drummond said. “It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the State to potential legal action that could be costly.”
The new school is clearly setting up a legal showdown that possibly will reach the Supreme Court and could have huge implications for the nation.
To understand how two Republican attorneys general can come to two different opinions, it is necessary to look back and try to understand what seems like a simple clause in the Constitution, but yet has been interpreted so differently.
The Establishment Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
There are different ways to view this clause. The most accepted is that the federal government may not establish a required state church the way England had with the Church of England. It’s the prohibiting the free exercise thereof that gets tricky.
It has been commonly believed that the second part prohibited the national government from interfering with the state governments that did have required state churches, of which there were several.
The main debate has always been does the Establishment Clause actually protect religion or build a wall between church and state? Its this difference that can help explain the two differing opinions.
Those who believe in a wall between church and state take that line from the writings of Thomas Jefferson. The line separation between church and state is the most misquoted line in the Constitution in that it is not in the Constitution, yet today almost universally accepted as so. In truth the line comes from a letter from Jefferson to the Danbury Baptist Association. Those who believe in a wall of separation have been in the minority for most of the nation’s history. Most have accepted religion in government and believed only that government could not interfere with religion. A great example is George Washington placing his hand on the Bible when he took his oath of office, something that is not required but most modern presidents have followed. Further evidence is that it took 89 years for the Legislature or the courts to make any religious laws until they outlawed polygamy in 1878. Even then it took 70 more years for the courts to make a ruling that began to change this common interpretation.
In 1947 a case came before the courts that is like the current issue in Oklahoma.
In New Jersey a school board was reimbursing parents for the cost of bussing their children to private schools including religious schools. In what became known as Everson v. Board of Education (1947) the U.S. Supreme Court narrowly ruled, 5-4, that this practice was unconstitutional. In this landmark decision, Justice Hugo L. Black made two important decisions. First, he declared that the 14th Amendment clause of equal protection meant that the Bill of Rights applied to the states as well as the federal government, and so the Religious Establishment Clause now applied to states as well. (It his hard to believe now, but until 1947 the Bill of Rights only applied to federal charges, not state ones). Secondly, and more importantly, Justice Black cited Jefferson when he ruled that government cannot pass laws that “aid one religion, aid all religions, or prefer one religion over another.” With this one case, Jefferson’s wall was suddenly erected and future courts would follow this example. Under this ruling, Oklahoma could not allow a religious charter school.
The new ruling did not mean all justices agreed, as many minority decisions continued to read the Establishment Clause in the original way.
In a 1953 religion verse education case known as Zorach V. Clauson, the state of New York allowed students release time for religious instruction off campus. Justice William Douglas wrote in favor of allowing release time saying, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly.” In other words, Douglas was arguing that the government does not need to be hostile to religion to be separate.
However, it still seemed as if the courts continued moving closer to constructing a complete wall. Probably the most important case on this subject and one that closely mirrors Oklahoma’s situation is the 1971 case Lemon v. Kurtzman.
In the case, the U.S. Supreme Court struck down a practice in Pennsylvania where schools were helping to pay for teachers’ salaries and books at religious institutions. Alton Lemon led the charge against Pennsylvania for violating the Establishment Clause. Acknowledging the First Amendment’s language is vague, the Court determined a simple three question test to determine if any government ran afoul of the Constitution. What the Lemon Test asks is, 1) is the primary purpose of the assistance is secular? 2) is the assistance promoting nor inhibiting religion? and 3) is there any excessive entanglement between church and state? The test was supposed to clarify the Establishment Clause and yet in some ways has only made it more confusing, especially the “excessive entanglement.” What the Lemon Test has done, in practice, was case by case and brick by brick built up the wall of separation.
Then came the 2016 election of Donald Trump and his appointment of three conservative justices. There are many cases that have a chipped away at the wall of separation, including the 2019 American Legion v. American Humanist Association case. But the Virtual Charter School Board brought up three cases in particular in their question to O’Connor that he addressed. According to O’Connor’s reply, in Trinity Lutheran Church of Columbia Inc. v. Comer (2017) the U.S. Supreme Court rejected a Missouri law that forbade Trinity Lutheran Church from applying for a government grant to buy recycled tire parts to soften playgrounds. The Court ruled that Missouri had “expressly require[d] Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program,” which “was a ‘clear infringement on free exercise’ and no compelling anti-establishment interest that could justify such discrimination.”
In the case of Espinoza v. Montana Department of Revenue (2020), the Montana Legislature passed a law that gave tax credit to anyone who donated to private school scholarship funds. Because state funds were involved, the scholarships could not be used for religious schools. When the state’s attorney general disagreed the state’s supreme court dismantled the program. The U.S. Supreme Court reinstated the program citing, The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” The state did not have to give tax credit for private schools, but if they did, they could not discriminate against religious schools.
Finally, the last case O’Connor discussed in his opinion was Carson v. Makin (2022). In this case, the state of Maine had assisted parents in rural areas without public schools to pay for private school tuition. Beginning in 1981, Maine required that funds from the state could only go to nonreligious schools. Like the other cases, the U.S. Supreme Court called this practice discriminatory and ruled that if Maine was going to support rural parents, they could not discriminate against religious schools.
The Oklahoma Virtual Charter School Board felt that these recent rulings should allow for a religion to apply for a charter school and Attorney General O’Connor agreed. O’Connor wrote in his opinion “We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions [charter school shall be nonsectarian] unconstitutional.” O’Connor then spent the rest of his 14-page draft giving more specific reasons why religious charter schools should be legal including topics? like, “The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.”
He broke his argument down into five major points. The most interesting of these points is the fourth, because after arguing several pages that religious schools should not be discriminated against, he changed his argument to make the point moot. In the fourth part he basically wrote that even though charter schools are publicly funded they are in fact not actually public schools.
To make his point O’Connor referenced the case Rendell-Baker v. Kohn (1982), which involves a private school in Massachusetts called New Perspectives School that dealt with difficult students. The students were referred to by the public schools and received funding from the state to work with these students. When the school fired a teacher, Rendell-Baker, over a policy debate, the teacher and others later fired sued claiming their First Amendment rights were violated and due process for state teachers was not followed. In a 6-2 decision from the U.S. Supreme Court it ruled with the school and said private contractors like the school are not public simply because they contract with the state. Based on this O’Connor wrote, “Rendell-Baker and Caviness counsel strongly toward a federal law finding that Oklahoma charter schools are not state actors and thus not vulnerable as an initial matter to an Establishment Clause challenge.” O’Connor concluded with, “just because the provision prohibiting charter schools from being sectarian ‘in its programs, admission policies, employment practices, and all other operations’ is likely unconstitutional does not mean that religious or religiously affiliated charter schools can necessarily operate however they want.
The constitutional problem is singling out religion, not necessarily the provisions found elsewhere regulating various aspects of charter schools. For instance, as it currently stands, federal law does not, in all likelihood, prohibit Oklahoma from enforcing requirements like those indicating that charter schools must be “as equally free and open to all students as traditional public schools,” or must not charge tuition or fees, so long as hostility to religion is not present.”
While the Statewide Virtual Charter School Board must have been thrilled with the O’Connor opinion, when Attorney General Gentner Drummond took office, he repealed his predecessor’s opinion and replaced it with one of his own. In a Feb. 23, 2023, letter to the board, Drummond wrote, “The cases identified in your request…involve private schools, not charter schools. This office has previously recognized that charter schools ‘are public schools established by contract.’ Consequently, the cases cited in your request concerning private schools have little precedential value as it relates to charter schools.”
Drummond went on to state that the question of whether charter schools are state actors is yet unsettled and he hopes the courts will take on the question soon. Currently, according to the 10th Circuit Court of Appeals, charter schools are state actors and so the religious school is unconstitutional. Drummond ends his opinion with, “This previous point relates to a much broader aspect of the issue at hand. As a strong supporter of religious liberty, I am obliged to note that the Opinion does nothing to advance that worthy cause. Religious liberty is one of our most fundamental freedoms. It allows us to worship according to our faith, and 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. If allowed to remain in force, I fear the Opinion will be used as a basis for taxpayer-funded religious schools which is precisely what SISCVS (St. Isidore of Seville Catholic Virtual School) seeks to become.
“Further, this office is obligated to point out that the approval of the SISCVS application will create a slippery slope. While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the SISDVS application will compel approval of similar applications by all faiths. I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”
There is no doubt that the ruling of the Statewide Virtual Charter School Board to create a religious charter school will end up in the courts. The issue at hand is does the Establishment Clause in the First Amendment really mean government should not interfere with religion or that there should be strict separation between the two? Two questions will need to be determined. First, can religions sponsor public charter schools? The second question might make the first one moot. It asks are charter schools actually public. If the answer to that question is no, then the first is not longer needed. If yes, then does disallowing religions to sponsor charter schools discriminate? The Lemon Test would probably say no to religious charter schools, but with a much more conservative court today the Lemon Test may no longer apply as more recent decisions are tending to favor religion.
James Finck, Ph.D. is a professor of history at the University of Science and Arts of Oklahoma. He can be reached at JamesFinck@USAO.edu.