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

With a packed gallery watching, Oklahoma Supreme Court justices seemed skeptical of an argument that what would be the nation’s first Catholic virtual charter school would actually be a private entity, and not a public school, during a hearing on the case Tuesday.

Attorneys for the Statewide Virtual Charter School Board and St. Isidore of Seville Catholic Virtual School joined state Attorney General Gentner Drummond in presenting oral arguments before the court, which has assumed original jurisdiction in a case being eyed closely due to its religious overtones and potential for a precedent-setting ruling. Drummond sued the Statewide Virtual Charter School Board on Oct. 20 after the board, by a 3-2 vote, approved the creation of the St. Isidore school.

On the St. Isidore website, the school notes it’s already accredited by the Oklahoma State Department of Education. The school’s initial application period, which began March 1, runs through Wednesday. St. Isidore’s faculty are to report on Aug. 1, with the first day of school set for Aug. 12, according to court documents. In court Tuesday, Drummond noted that public money would begin flowing to the school as of July 1.

Drummond told justices he sued the virtual-school board “to defend the separation of church and state … This case is not about exclusion of a religious entity from government aid, which would implicate the free exercise of religion. Rather, it is about the state creation of a religious school which unequivocally establishes religion.”

More: Movement coming on pair of lawsuits involving Catholic virtual charter school St. Isidore

According to the state Education Department website, charter schools are defined as “public schools that are allowed greater flexibility for greater accountability.” Drummond claims as soon as St. Isidore signed a contract to become a charter school, it became a public entity.

“If they said, ‘Hey, we’re a public school,’ they lose,” Drummond said afterward. “They are a public school. If it walks like a duck, quacks like a duck, looks like a duck, it’s a duck. It’s a public school.”

During the 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.”

The St. Isidore argument at the Supreme Court

Phil Sechler, the attorney for the virtual-school board and the senior counsel for Alliance Defending Freedom — a conservative Christian legal advocacy group — told justices St. Isidore was 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.

He also noted the first line of the Oklahoma Constitution declares the U.S. Constitution to be “the supreme law of the land.”

Sechler said the charter-school program set up by the state is available to everybody, “except for, right now, religious groups. … The Supreme Court has made it clear that you can’t set up a program like this and invite private organizations to participate, and then say if you’re religious, don’t bother.”

The nine justices seemed to understand the gravity of their upcoming decision. Justice Noma Gurich, in particular, noted several times that St. Isidore would be the nation’s first religion-based charter school, and other justices asked about the religious aspects of the school’s curriculum and how many of school’s board members were Catholic. Michael McGinley, the attorney for St. Isidore, said all five of the board members are Catholic.

Yvonne Kauger, the longest-serving justice on the court — appointed in 1984 — noted if they ruled in favor of St. Isidore, it would be a major precedent: “If the wall (between church and state) comes down, it’s Katy-bar-the-door,” she said. “Everyone will be affected.”

Kauger later asked Sechler directly: “Are we being used as a test case?” McGinley said, “No,” before Kauger interjected, “It sure looks like it.”

Justices peppered the presentations by Sechler and McGinley with more questions, focused on the public-private debate, than they asked during Drummond’s presentation.

Drummond said if he loses the case, he will appeal to the U.S. Supreme Court, while Seckler said, “I have no idea,” when answering the same question.

Absent from the courtroom was state schools Superintendent Ryan Walters. Walters, who supports the idea of a publicly funded religious charter school, has tried to insert himself, the state Education Department and the Oklahoma State Board of Education into the case three times, and the court has rejected each request.

Providing a unique perspective on the case Tuesday was Robert Franklin, the chairman of the virtual school board who cast one of the two votes against the school. Nevertheless, Franklin and the board members are being represented by Alliance Defending Freedom, even though Franklin personally agrees with Drummond’s view on the case.

“There’s a major education policy decision to be made,” Franklin said. “It has huge implications not for just the state, but also across the country."

A second St. Isidore lawsuit is working through the Oklahoma court system

The case heard Tuesday is one of two involving St. Isidore. The other was filed in Oklahoma County District Court in July by the Oklahoma Parent Legislative Action Committee (OPLAC), a nonpartisan public school advocacy group. Nine other parents, faith leaders and public education advocates joined in filing the lawsuit. They’ve asked a judge to block St. Isidore from opening and receiving public funds.

Last week, District Judge Richard 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. Ogden has set a May 1 hearing on the deposition request.

This article originally appeared on Oklahoman: Oklahoma Supreme Court hears arguments on whether St. Isidore is public