Small: Court errs on religious school decision

Court errs on religious school decision

By Jonathan Small

When it comes to religion, many on the left twist the principle of government neutrality into a doctrine of government suppression.

The Oklahoma Supreme Court recently ruled the Catholic Church cannot operate a state charter school. The decision is the latest in which an Oklahoma Supreme Court decision is at odds with simple logic.

Following several U.S. Supreme Court rulings that struck down prohibitions on the participation of religious entities in various state programs nationwide, the Archdiocese of Oklahoma City and the Diocese of Tulsa applied to open the nation’s first religious public charter school in Oklahoma. The proposed St. Isidore of Seville Catholic Virtual School would have been funded with state tax dollars and included Catholic teaching as part of its educational mission, along with standard educational material.

Opponents argued the church could not operate a state charter school, citing Article II, Section 5 of the Oklahoma Constitution, which declares, “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion.”

A majority of Oklahoma Supreme Court justices ruled against the Catholic Church, declaring the church becomes a state actor when operating a public charter school. But a dissent from Oklahoma Supreme Court Justice Dana Kuehn highlighted the gaping errors in the majority opinion.

“By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization,” Kuehn wrote. “To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.”

Kuehn also noted that the Oklahoma Constitution “does not bar the State from contracting for education services with sectarian organizations, so long as a state-funded, secular education remains available statewide. St. Isidore would not be replacing any secular school, only adding to the options available, which is the heart of the Charter Schools Act. Simply put, requiring the state to fund non-sectarian education is not the same as allowing some funds to flow to sectarian education programs.”

No parent would have been required to enroll their child in St. Isidore. Only those who proactively chose to enroll their children in the school would have done so. And those who don’t want a Catholic education could continue to send their students to public schools.

Also, the Catholic Church would not be the only religious entity able to operate a charter school. Any religious group could do the same. Those schools’ success would be based on parental demand via proactive enrollment, not government favoritism.

For too long, activist judges have falsely claimed a ban on state favoritism of religion requires active state opposition to religious entities. Sadly, it appears a majority of Oklahoma Supreme Court justices have adopted that stance.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs (www.ocpathink.org).