The backers of what would have been the country’s first tax-funded religious virtual charter school are promising to fight the Oklahoma supreme court’s decision that blocks it, in a case that has sparked a national religious freedom debate. 

St. Isidore of Seville Catholic Virtual School had been set to open this year and aimed to provide education centered around the “Catholic Intellectual Tradition” to students of any faith background. Yet the Oklahoma supreme court shot it down in June, ordering the state’s virtual charter school board that approved the school’s contract to rescind it, following a lawsuit from the state’s attorney general, Gentner Drummond. The justices held that the religious charter school was unconstitutional and created a “slippery slope.” 

St. Isidore is promising to “fight” the state supreme court’s decision, and a representative of the school confirmed to the Sun that it intends to seek the U.S. Supreme Court’s review. 

Mr. Drummond, for his part, has said that as the case is “sure to be appealed to the U.S. Supreme Court,” he will keep fighting it. He argues that taxpayers shouldn’t be forced to fund schools that teach religions they don’t agree with, and repeatedly expressed concerns that allowing a Catholic charter school could lead to tax-funded schools that promote “the radical teachings of Sharia or the demonic worship of Satan.”

The state’s new charter school board — which succeeds the virtual charter school board that approved St. Isidore’s contract — met Monday to discuss the future of St. Isidore’s, the board’s agenda indicates.

As the school plans to appeal to the U.S. Supreme Court, the justices in recent rulings have signaled a less restrictive stance on the First Amendment’s establishment clause and a more robust interpretation of the free exercise clause. In 2017, in Trinity Lutheran Church of Columbia v. Comer, the court held that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.”

In Espinoza v. Montana Department of Revenue, a 2020 ruling, the court said the state cannot block parents from using public scholarship funds at religious schools. In 2022, the court held in Carson v. Makin that religious schools couldn’t be excluded from “generally available tuition assistance payments.” 

Despite the anticipated Supreme Court appeal, some observers say it’s a long shot that the high court would weigh in.

“I would not expect the Supreme Court to take this up, first and foremost because the court rejects the vast majority of petitions it receives to hear cases,” the Cato Institute’s Center for Educational Freedom director, Neal McCluskey, tells the Sun. “At least until we see more charter school cases like this one, I think the Supreme Court will leave this alone.”

He said the Oklahoma school case is different from Espinoza and Carson because those cases “dealt with programs allowing families to use publicly connected funds at private schools the families chose, while the Oklahoma case involves government granting a charter to a school to make it a public school.” 

“The justices might still be sympathetic to the argument that religious institutions should not be singled out for exclusion from chartering, but establishing religious public schools is substantially different from allowing people to freely choose private religious institutions,” he adds. 

Although the realm of virtual religious charter schools is a new front, he points out that public schools throughout much of American history “tended to be de facto religious,” especially with Protestant schools that incorporated Bible readings and prayer. 

“Early in our history we also saw governments provide assistance for religious schools of various denominations,” he says, adding that “during the Founding period the primary educational concern was forming virtuous citizens, which was directly connected to religion.”

Yet, the Founders may have been concerned with the state creating a Catholic school, he says. 

“The Catholic Church was seen very much as an enemy of a republican country,” he says of the Founding era. “It is not seen that way anymore, at least not broadly, but it raises the same problem as the Shariah and Satanism concerns: Should government be in the position to say which religious schools are acceptable and which are not?”