The Oklahoma Supreme Court has ruled that the Oklahoma Constitution prohibits the Catholic Church from operating a state charter school, but the court majority’s decision also reinforced the legality of school-choice programs that put parents in control.

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 sought 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. Students’ families would have had to proactively enroll their children in the school, meaning no child would be forced to attend the Catholic charter school.

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 six-justice majority of the Oklahoma Supreme Court has now declared St. Isidore would be considered a “state actor” and that state funding to the school would therefore violate prohibitions on taxpayer aid to churches.

“Under Oklahoma law, a charter school is a public school,” the Oklahoma Supreme Court majority wrote. “As such, a charter school must be nonsectarian. However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State. This State’s establishment of a religious charter school violates Oklahoma statutes, the Oklahoma Constitution, and the Establishment Clause.”

However, the majority also reinforced the legality of school-voucher programs in its decision on St. Isidore.

In 2010, the Oklahoma Legislature created the Lindsey Nicole Henry Scholarships for Students with Disabilities (LNH) program. That program provides state tax dollars to parents to send children with special needs, such as autism, to private schools.

The LNH program was also challenged in court based on Article II, Section 5 of the Oklahoma Constitution.

But the Oklahoma Supreme Court, in a unanimous 2016 decision, held the Henry scholarship program was constitutional and specifically noted the program does not directly benefit private schools or churches, but individual students.

“When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken,” the justices stated (emphasis in original).

The court’s decision on the St. Isidore charter school referenced its 2016 decision on the LNH program.

In its 2016 decision, the justices noted that the court “found that a state-funded scholarship program allowing parents of students with disabilities to apply for a scholarship for their children to attend private school did not violate Article 2, Section 5. … Under the legislation at issue, the State would offset tuition at participating private schools through scholarships to eligible students. The State paid the scholarship funds directly to the parent and participation was purely voluntary. Any private school—sectarian or nonsectarian—was eligible to participate in the program. The Court held the scholarship program did not ‘directly fund religious activities’ in violation of Article 2, Section 5. … The program did not disperse funds directly to any private sectarian school until a parent of an eligible student made a private, independent selection. Any benefit to a participating sectarian school arose solely from the choice of the parent, not from any decree from the State. …”

The majority wrote that charter-school funding is “dissimilar from giving scholarship funds to parents” as occurs through the LNH program.

The structure of Oklahoma’s other major school-choice program, the Oklahoma Parental Choice Tax Credit program, is similar to LNH. Under the parental choice tax-credit program, families may receive refundable tax credits of $5,000 to $7,500 per child to cover the cost of private school tuition. The financial benefit goes to parents, not any specific institution, and parents determine which private school a child attends.

The Oklahoma Supreme Court majority appeared to allude to the Oklahoma Parental Choice Tax Credit program in their opinion on the religious charter school, writing that St. Isidore “is not a religious private school or organization seeking to be treated equally with other private entities relative to a tax credit, grant, or tuition assistance.”

The Oklahoma Supreme Court’s St. Isidore ruling is expected to be appealed to the U.S. Supreme Court.

In her dissent in the case, Oklahoma Supreme Court Justice Dana Kuehn noted several issues that may be raised in a federal appeal.

“St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities,” Kuehn wrote. “By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. 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 wrote 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.”

Kuehn also noted that the Oklahoma Supreme Court “has held many times” that “the ‘no aid’ clause is not violated by contracts for services.”

“The State contracts with private entities all the time for the performance of countless functions, from building roads to renewing motor-vehicle license tags,” Kuehn wrote. “In contexts very similar to this one—involving public funds and religious organizations—this Court has held that public-private contracts are not invalid simply because a religious entity might receive some tangential benefit.”