A national state/church watchdog is contesting the Oklahoma attorney general’s opinion that a religious entity can operate a public charter school. The Freedom From Religion Foundation has countered Oklahoma Attorney General John O’Connor’s opinion that a charter school may be religiously affiliated with a detailed memo.
A state cannot establish a religious public school system and taxpayers cannot be forced to pay for religious schools, FFRF contends. The state of Oklahoma may no more establish religious schools than it may establish a church.
In its 10-page memo to Executive Director Rebecca L. Wilkinson of the Statewide Virtual Charter School Board, FFRF points out that O’Connor’s opinion is not an objective interpretation of the Oklahoma Charter Schools Act. FFRF contends that O’Connor misconstrues and cherry-picks arguments from case law.
“If Oklahoma charter schools are state actors, as we conclude they are, the charter schools are restricted by the Oklahoma Constitution and the United States Constitution,” write FFRF Co-Presidents Annie Laurie Gaylor and Dan Barker. “As such, the State of Oklahoma cannot establish religious charter schools and the charter school students cannot be coerced to engage in religious exercise.”
FFRF, to rebut irrelevant case law cited by O’Connor, points to a 2016 case by the 10th U.S. Circuit Court of Appeals that defines charter schools as public schools. The 10th Circuit found that “charter schools are public schools using public funds to educate school children” and “are not free-floating entities unmoored from state governmental oversight and control.”
Similarly, a 2021 4th U.S. Circuit case found that charter schools, as public schools, cannot violate the constitutional rights of students. Although the charter school management company was not held to be a state actor, the school itself was.
The attorney general’s opinion misapplies recent Supreme Court cases, such as Trinity Lutheran v. Comer, in which the court held that a church could not be excluded from a public grant for playground surfacing material. This one-time benefit provided to a church is not comparable to requiring the State of Oklahoma and its taxpayers to fund religious entities to operate public charter schools. Recent Supreme Court cases involving vouchers or neo-vouchers are similarly misapplied by O’Connor to conclude that religious applicants may not be excluded from operating Oklahoma charter schools.
The attorney general’s opinion fails to acknowledge the most significant concern — the constitutional rights of conscience of public school students. A private religious school does not have constitutional obligations, while a public charter school — as a state actor — does. Public schools are open to all individuals, regardless of religious identity, and exist to educate, not indoctrinate.
The opinion forgets that the separation of state and church protects both sides of the wall. FFRF is therefore recommending that no change or action is required in regard to the current Oklahoma Charter Schools Act, and that the opinion from O’Conner be discounted.
“The opinion provided by Attorney General John O’Connor shows a very real attempt to allow church denominations to infiltrate the public school system in Oklahoma,” warns FFRF Co-President Annie Laurie Gaylor. “Public charter schools may not be run by religious groups, be religiously segregated or be undergirded by a religious mission.”
The Freedom From Religion Foundation is a national nonprofit organization with more than 39,000 members across the country, including over 100 members in Oklahoma. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism.