District court judge declines to take immediate action in St. Isidore of Seville case

Oklahoma County District Court Judge Richard Ogden declined Wednesday to require backers of the proposed St. Isidore of Seville Catholic Virtual Charter School to provide immediate depositions to plaintiffs in a lawsuit seeking to block the school's formation. He also declined to grant a protective order against depositions to the defendants.

Ogden granted the stay "pending determination that the court has subject matter jurisdiction" concerning the issue, given that another lawsuit involving St. Isidore, brought by Oklahoma Attorney General Gentner Drummond, is being considered by the state Supreme Court. Attorneys for St. Isidore said a ruling in that case might render the Oklahoma County case moot, although the plaintiffs' attorneys said the lawsuits address slightly different issues.

The cases are being eyed closely due to their religious overtones and potential for a precedent-setting ruling.

Ogden instead set a May 31 deadline for the plaintiffs to file a motion for a temporary injunction to stop the school from moving forward with its plans. He also set a tentative date for an evidentiary hearing on July 23-24. At that hearing, the plaintiffs' attorneys will be able ask questions of any witnesses called by the defense, said Alex Luchenitser, an attorney for the plaintiffs.

More: Oklahoma Supreme Court appears skeptical of argument that St. Isidore would not be a public school

During arguments, Luchenitser suggested a temporary injunction could be narrowly tailored to prevent St. Isidore from discriminating on the basis of sex and gender for students and employees. He added the school has already hired employees and admitted students, so the “harm is already taking place.”

Defense attorneys argued the case was based on “unfounded hypotheticals” and asked for the deposition to be put off for a few weeks or months. Attorney Scott Proctor, representing St. Isidore, said the court should wait to see if students or employees bring discrimination cases before deciding the school’s future.

Phil Sechler, attorney for the Oklahoma Statewide Virtual Charter Board and the senior counsel for Alliance Defending Freedom — a conservative Christian legal advocacy group — said the board didn’t think depositions were appropriate at this time. Judge Ogden agreed, saying it was undecided whether the court had subject matter jurisdiction.

County case has been quietly active since last year

The Oklahoma Statewide Virtual Charter School Board drew national attention when it voted 3-2 in June 2023 to approve the school’s creation.

The Oklahoma Parent Legislative Action Committee, a non-partisan public school advocacy group, joined nine other parents, faith leaders and public education advocates in filing its lawsuit in July. They contend a Catholic charter school would contradict state law and asked a district judge to block St. Isidore from opening and receiving state funds.

The plaintiffs are represented by local attorneys and national groups — the American Civil Liberties Union, the Freedom from Religion Foundation and Americans United for Separation of Church and State (AU).

The case already has seen legal tumult. The original judge assigned to the case, Oklahoma County District Judge Brent Dishman, declined to recuse himself from the case after being asked to do so by plaintiffs' attorneys, who cited a conflict of interest. The plaintiffs appealed and in January, District Judge Amy Palumbo, the county’s chief district judge that month, ruled Dishman should be removed.

Dishman’s sister-in-law is the co-founder of the OPLAC. Dishman also serves on the board of College of the Ozarks, a private religious school in Point Lookout, Missouri, that previously hired several of the defense attorneys in a separate case with similar issues.

According to the state Education Department website, charter schools are defined as “public schools that are allowed greater flexibility for greater accountability. Catholic officials contend, however, charter schools are private schools, despite their reliance on taxpayer dollars, and a faith-based institution shouldn't be excluded from the state's charter-school funding. Critics argue the concept of a government-funded religious school violates the separation of church and state and could result in discrimination against certain groups.

In March, Ogden received dueling filings from each side, with three requests for dismissal and another to force St. Isidore to agree to provide representatives to be deposed by attorneys for the plaintiffs.

State schools Superintendent Ryan Walters and the agency he leads, the Oklahoma State Department of Education, also are defendants in the case. Attorneys for Walters said they supported St. Isidore's request to have the deposition requested by the plaintiffs delayed.

Similar lawsuit also pending in Oklahoma Supreme Court

The other lawsuit involving St. Isidore, filed by Drummond, is awaiting a ruling from the Oklahoma Supreme Court after justices heard oral arguments in the case on April 2.During oral arguments, justices seemed skeptical of the claims of attorneys for the Statewide Virtual School Charter School that what would be the nation’s first Catholic virtual charter school would actually be a private entity, and not a public school.During the Oklahoma Supreme Court hearing, Drummond said Article 2, Section 5 of the Oklahoma Constitution was at the heart of his case: “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, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”

Sechler, who also argued for St. Isidore in the state Supreme Court hearing, told justices St. Isidore is not a public entity because it is “privately owned and operated” by representatives of the Catholic Church. He said to not allow the school to receive public funds like Oklahoma’s 32 other charter schools would amount to religious discrimination that would violate the U.S. Constitution.

This article originally appeared on Oklahoman: Plaintiffs to seek temporary injunction in religious charter school suit