Introduction
In an address to Catholic school students in 2010, Pope Benedict XVI stated, “A good school provides a rounded education for the whole person. And a good Catholic school, over and above this, should help all its students to become saints.”1 Pope Benedict’s words reflect a historical dedication to the spiritual formation of Catholic students as well as a call to action for the modern Catholic education system. When Catholic education first began in America, its religious mission was publicly funded by local governments. As both the Catholic population in America and government involvement in primary and secondary education grew, conflicting perspectives emerged regarding public funding for explicitly religious education.
One particular school has courted controversy with an unprecedented Catholic educational model: St. Isidore of Seville Catholic Virtual School, a religious charter school. Landing on the current docket of the United States Supreme Court, St. Isidore is petitioning for the reversal of the Oklahoma State Supreme Court decision which struck down the school’s contract as an unconstitutional entanglement of church and state. St. Isidore provides an excellent case study for analyzing the extent to which the government is, or should be, involved in the formation of saints. The school, named in honor of a Spanish bishop and prolific author, is a charter school authorized by two Catholic dioceses in Oklahoma.
Charter schools walk the line between private and public education; although completely funded by state and federal tax dollars, they are administered separately from traditional private schools. Each charter school may have its own board of governance, for example, who maintain educational standards. In the state of Oklahoma, the type of institution that is eligible to authorize a charter school is a school district, Indian tribe, institution of higher education, or institution which has contracted with the Office of Juvenile Affairs. Even though charter schools are more flexible in their governance and administration than traditional public schools, they are considered public schools under state law.2
While the contract for St. Isidore was approved by the Oklahoma Statewide Virtual Charter School Board, Oklahoma Attorney General Gentner Drummond challenged the St. Isidore contract on the basis that an explicitly religious charter school constitutes state-established religion in violation of the Establishment Clause of the First Amendment. The Supreme Court of Oklahoma, in the case of Drummond v. Oklahoma Statewide Virtual Charter School Board, cited federal Supreme Court precedent in its decision that found St. Isidore unconstitutional.
Over the last several decades, the United States Supreme Court has shifted the framework by which it views religious practice in the public sector. For religious education cases in particular, the Court has moved from focusing on Establishment Clause concerns to prioritizing Free Exercise protections. This behavior of the Supreme Court is a positive sign for free exercise proponents and indicates that the judiciary may be friendly to the idea of publicly funded religious education in the future. The topic of public funding for services and programs in which private schools can participate is generally referred to as “school choice.” When it comes to school choice and religious education, there are important aspects of federalism and school operations that the Court has not directly addressed in its past rulings, making the issue of publicly funded religious education in America somewhat confusing and unpredictable.
There are two major areas of the school choice debate that illustrate gaps in academic discussion on the issue. The first of these is the power of state constitutional language, including no-aid provisions known as “Blaine” amendments, over funding for religious schools. Thirty-five state constitutions contain Blaine amendments which explicitly bar state tax dollars from funding religious activities. There is variation in constitutional language across the states that have Blaine amendments, but some are explicit in specifying no funding for religious education.3 The U.S. Supreme Court has been loath to make definitive rulings on the constitutional viability of this type of state language, which might be scrutinized in light of the First Amendment right to free religious exercise. In January 2025, the Supreme Court took up St. Isidore’s appeal of the Oklahoma Court’s decision in Drummond, which is scheduled for oral argument on April 30, 2025. Now being considered at the highest level, this case presents a vehicle for the justices to finally and directly address Blaine amendments.
The second important area of consideration is the question of whether a religious charter school can operate fully as a Catholic school. The priority which Pope Benedict identified—to teach students to be saints—is core to the identity, history, and purpose of Catholic education. Notably, the state does not prioritize this concern and, in fact, prohibits public schools from providing spiritual formation. In my experience as both a Catholic school student and a practicing Catholic, I have learned that education which truly knows its identity, its history, and its end is sustainable and effective in forming students. One that has to conform to state standards in order to keep its doors open is at risk of losing all three. If a school is administered by the Church and funded by the state, it is caught between two realms of authority. “No one can serve two masters; for either he will hate the one and love the other, or he will be devoted to one and despise the other.”4
Supporters of the St. Isidore contract would be wise to ponder the unique character of Catholic education that is jeopardized by government oversight and regulations associated with direct funding. The operation of a Catholic school includes overt and regular religious worship, teaching, prayer, and practice. Government funding for these activities would not only dramatically expand current precedent for religion in the public sphere, but it would also threaten the autonomy of Catholic leadership seeking to run schools according to what they discern to be best. One important way that private religious schools enjoy religious freedom is through a ministerial exception in hiring decisions. The ministerial exception refers to the freedom of religious institutions to hire and fire employees on the basis of their religion or religious practice. In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court argued that the responsibilities of modeling religious practice and teaching religious education are “at the very core of the mission of a private religious school.”5 Charter schools—indeed, any public entity—have no right to the ministerial exception. Catholic schools that wish to classify themselves as charter schools and qualify for public funds cannot expect to enjoy the ministerial exception.
This essay considers the case study of St. Isidore of Seville Catholic Virtual School to discuss the constitutional and operational factors present for publicly funded religious education. I will address the history of Catholic education in America, reference the relevant legal precedent for the school choice conversation, and analyze the decision made by the Supreme Court of Oklahoma in Drummond v. Oklahoma Statewide Virtual Charter School Board. My analysis supports the conclusion that the Supreme Court of Oklahoma was right to strike down St. Isidore’s contract. In doing so, it spared St. Isidore from burdensome government overreach into religious matters. St. Isidore’s appeal of Oklahoma’s decision is an opportunity for the Supreme Court to resolve pressing questions around school choice and the tensions it raises between state power, federal judicial oversight, and religious freedom.
The First Catholic Schools
Modern American Catholic education finds its beginnings among a religious minority in the United States. As was the case with all schooling before the establishment of the American public school system, Catholic education spanned the home, parish, school, and, in some cases, apprenticeships or jobs.6 In “Understanding American Catholic Educational History,” prolific scholar and education historian Marvin Lazerson explains:
…to think of a system of common schools before the mid-nineteenth century is to miss the informal, transient nature of schooling. During the seventeenth and eighteenth centuries, the household, church, and—to a lesser extent—the school, blended in what Lawrence Cremin calls configurations of education, served as the primary agencies of learning. These configurations were household-based.7
He notes that, “Priests and hierarchy and undoubtedly many Catholics assumed that where possible children would be educated in Catholic environments– homes, churches, and schools…Catholic schools were extensions of parish or religious order activities, not part of an organized plan.”8
The earliest Catholic schools were parish schools established in the 1750s. Generally, one parish established one school that was run by a pastor who answered to his bishop.9 The salience of religious identity in American life and politics in the eighteenth century meant that many denominational schools received state support and Catholic clergy could count on funding from the parish as well as the state. The expectation that education would reinforce the mission of the church was an assumption not only for Catholics, but for all Christian families at the time. Regardless of religious denomination, it would have been unreasonable for lawmakers to suggest that religious instruction would take place only in the home and at religious services.
A Wall of Separation
The divergence of the public and private school systems began shortly after 1840, spurred by social and cultural factors at the time, including the emerging Protestant character of the budding public school system as well as an influx of Catholic immigrants to the United States in the mid-nineteenth century. The founders of the “common,” or public, K-12 schools were just as convicted as their Catholic school counterparts about the critical role of religion in schools; leaders like Baptist minister Israel Wilkinson “drew on the model of locally supported schooling established in Puritan New England and believed that effective education could never be severed from religious instruction.”10 Furthermore, public school advocates saw the common school system as a symbol of American progress, with one Wisconsin state superintendent declaring that the Catholic Church “must not put itself or its parochial school across the legitimate pathway of the state and obstruct its progress.”11 As swaths of Irish and German immigrants moved to the United States, they desired religious education that matched instruction at home and in the parish. Furthermore, cultural differences with American Protestants often left these Catholics feeling alienated and uncomfortable in public schools.12
Jay P. Dolan, respected historian of American Catholicism, highlights New York state in particular; figures like Bishop John Hughes of New York saw Catholic parochial schools as the only path forward for Catholic education, given the cultural and religious tensions with mainstream Protestant education. Marvin Lazerson notes that Hughes had a “commitment to separate schools, with public funds if possible, without if necessary.”13 Public school advocates came to see private parish schools as a serious threat to the idea that a “common” education was best for all students. As the divide grew between parish and public schools, lawmakers became increasingly concerned about public funding for sectarian education—education associated with a specific religious sect—as opposed to broader non-denominational Protestantism.
In many states, it was the passage of so-called “Blaine” amendments that marked the end of public funding for Catholic schools. Blaine amendments are named for James G. Blaine, a Congressman who proposed a federal amendment in 1875 that would prohibit public funding to “sectarian” schools in order to preserve it wholly for common schools. The federal amendment narrowly failed, but the sentiment was embraced at the state-level; thirty-seven states passed their own versions during the late nineteenth and early twentieth centuries.
Some historians argue that the exclusionary “no-aid” language the states adopted was borne out of the nativism of the nineteenth century, a movement that was deeply anti-Catholic and anti-immigrant.14 Protestant supporters of the federal Blaine amendment “frequently referred to parochial school as a ‘menace’ to public education,” according to records from the Senate Committee on Education and Labor of the 50th U.S. Congress.15 It was no secret that the reason private Catholic schools grew and thrived was due to the wave of European immigrants to the United States in the nineteenth century.16 Others make the case that no-aid provisions in state constitutions cannot be solely attributed to nativism, and such language is simply a state’s version of the Establishment Clause of the federal constitution.17 Intentional nativist sentiment or not, the passage of Blaine amendments had a singular effect in each state where they were enacted into law: the complete privatization of Catholic education.
The Character of Catholic Education
In 2010, Pope Benedict XVI told the world that the purpose of Catholic education is the formation of saints. Pope Benedict’s claim was not new: the goal of forming moral and devout young people has been the heart of Catholic education from its beginnings in parish and home life. The character of Catholic education is the education of the whole person, informing the intellect and forming the soul. This was the appeal of parochial education to Catholic immigrants in the nineteenth century, and it continues to draw interested families and dedicated advocates.
Dedicated clergy, teachers, and religious orders preserved the character of Catholic education. All Catholic schools are overseen by a Catholic bishop of the diocese in which they sit. The bishop, united with clergy, faculty, and staff, is responsible for carrying out the mission of the Catholic faith through academic and extracurricular programs. From the founding of Catholic education in the United States until relatively recently, religious orders were the lifeblood of Catholic education. Religious men and women who gave their lives to the Church were the primary teachers for thousands of Catholic school children from the mid-nineteenth century to the mid-twentieth century. Many of these teachers and administrators took vows of poverty, accepting little to no pay for their work.
In the mid-twentieth century, the number and size of teaching orders began to decline; lay men and women became the majority of teachers in Catholic schools. As theology training from seminary or convent school became less common among Catholic school teachers, diocesean leadership had to find other ways to continue to cultivate the distinct character of Catholic education. Grand Traverse Area Catholic Schools (GTACS) of northern Michigan takes the approach of hiring administrators with Catholic theology degrees or those who are willing to obtain them while working. An alumna of GTACS myself, I am able to speak to the value that this school system in particular places on the rich Catholic education tradition and the role that religious education plays in nurturing the next generation of the faithful. Modern American Catholic schools like GTACS are still dedicated to the unique character of Catholic education. GTACS Superintendent Mike Buell states, “We are about making decisions for the kids’ formation as well as their information.”18
Private religious institutions such as GTACS have the right to the ministerial exception, by which they make decisions based on religious preferences through a legal exemption from federal regulations that otherwise require nondiscrimination in school hiring practices. Even those religious institutions that receive some grants or public funding have the right to a ministerial exception in hiring practices. This allows religious organizations the independence and autonomy to practice their professed faith and employ only those who would uphold the same beliefs.19
Religious Education and the Court
The history of Catholic education in the United States includes and is influenced by the mechanisms which fund it. While some states have addressed public funding for religious education through the passage of Blaine amendments, federal legal precedent provides another layer to the issue. The Supreme Court of the United States (SCOTUS) first visited the question of the relationship of public funding and religious education in the first half of the twentieth century and has revisited it countless times since. The judicial history that traces the tensions and trends of the Establishment and Free Exercise Clauses over time is integral to understanding the legal context in which St. Isidore of Seville Catholic Virtual School finds itself.
Supreme Court precedent provides a guide for how the high Court might rule today and how its decision making has evolved over time. On the issue of public funds to religious education, the Court’s focus has shifted from concerns about religious establishment to concerns about religious freedom. For most of the twentieth century, the Court was careful to ensure that when there was public funding for a service that benefited a religious school, the service could not be construed as state supported religion. At the beginning of the twenty-first century, this approach was superseded by a focus on the other actors in the case: the right of the religious institution or individuals involved in the case to be free from burdens on their religious exercise.
The Court formally incorporated the Establishment Clause to the states in 1947 with Everson v. Board of Education of the Township of Ewing. The case focused on bussing for private school students, and a divided court declared that taxpayer-funded transportation for parochial school students was not a violation of the Establishment Clause.20 In their opinion, the Court found that there is a “wall” between church and state that is “high and impenetrable.”21 At the same time, excluding sectarian schools from programs of general public benefit simply because of their religious character is unconstitutional under the Free Exercise Clause of the First Amendment. With Everson, it became clear that programs authorizing public monies for parochial schools would be sandwiched between a rock and a hard place—that is, the Establishment and Free Exercise Clauses of the federal Constitution.
A few decades later, the Court further developed its stance on church-state relations as they pertain to religious schools. Lemon v. Kurtzman (1971) established the Lemon test, setting three requirements for any legislation that authorized funding for religious schools: the primary effect must be secular, it may neither promote nor inhibit religion, and there cannot be excessive entanglement between the religious institution and the state. The Lemon test was the clearest standard regarding funding for religious education issues thus far, and it was used to effectively strike down the Rhode Island and Pennsylvania laws that were at issue in the case.22
Two cases following Lemon demonstrated the difficulty of applying the tripartite standards in real cases. In 1984, the Court ruled in Aguilar v. Felton that a federal program which funded public school teachers to teach in parochial schools was state-sponsored indoctrination of religion. This type of program, the Court ruled, was excessive entanglement between church and state, violating the Lemon test.23 Thirteen years later, in Agostini v. Felton, the Court threw out the standard used to decide Aguilar. In Agostini, the Court retracted its rule that publicly funded resources in religious schools would always constitute state established religion.24 By the 2000s, the Lemon test had died, with the Court opting for a standard of neutrality to evaluate aid to nonpublic schools.25
In Zelman v. Simmons-Harris in 2002, and in keeping with Agostini, the Court gave the benefit of the doubt to private schools seeking indirect public funds, this time in the form of a voucher program. The Ohio program at issue in Zelman did not violate state law since Ohio had no Blaine amendment in its state constitution; instead the program was challenged on the grounds that it violated the federal Establishment Clause. In the majority opinion, the Court upheld the statute, writing that “the program is entirely neutral with respect to religion” and that money reaches religious institutions only through the mechanism of “true private choice” of the families receiving the vouchers.26
The role of Blaine amendments in the school choice debate reared its head one year after the Zelman decision. While the Court by this time had moved decisively away from Establishment Clause concerns, federalism still empowered state constitutional law. In Locke v. Davey, the state of Washington had blocked a state scholarship recipient from using his award to pursue a ministerial degree, which he then challenged as a violation of his Free Exercise rights. The Court ruled in favor of the state of Washington, explaining that the state could have chosen to include the student in its scholarship program, but it also had the authority to pass laws that prohibit state funding from certain kinds of programs.27 The state of Washington’s Blaine amendments survived Locke, but the issue would arise again.
Taking place in quick succession between 2017 and 2022, the three most recent Supreme Court cases related to public funding for religious schools are known as the Trilogy Cases. The Court’s opinions in these cases established the most relevant contemporary precedent, namely a version of the neutrality principle: any public funding for a generally available public benefit for which nonsectarian institutions can apply must also be available to their religious counterparts. In the Trilogy Cases, the Court did not explicitly rule on the constitutionality of Blaine amendments writ large. This means that the viability of Blaine amendments is still a live issue in the religious education debate and the issue is likely to arise in the Supreme Court’s consideration of St. Isidore.
Trinity Lutheran Church of Colombia, Inc. v. Comer (2017) revolved around a private elementary school associated with a church in Missouri. The school applied for a grant through the Missouri Department of Natural Resources to take part in the state’s program to resurface playgrounds with recycled tire material. While otherwise deemed highly qualified, the religious institution was denied participation in the program because Missouri’s state constitution prohibits direct or indirect funding to churches. The Supreme Court ruled that despite Missouri’s constitutional language, a program that withholds generally available public service from only one group based on its religious identity is “odious.”28 The opinion did not strike down the Blaine amendment, but it acknowledged that the exclusion of religious institutions from an “otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.”29 The Court declined to make a judgment on the Blaine amendment itself, focusing instead on its application in this case.
Three years later in Espinoza v. Montana Department of Revenue, the Court would again skirt around the issue of Blaine amendments. The state of Montana has a constitutional provision that blocks aid from educational programs controlled by religious institutions. To enforce the provision as it pertained to a tax-credit scholarship program, the state promulgated a rule that expressly prohibited scholarship recipients from using the money at religious K-12 schools. A group of parents who wanted to use the tax credit to send their children to Christian schools challenged the rule that limited the scope of the program to non-religious schools. A divided Court ruled in favor of the parents, striking down the administrative rule and finding the scholarship program constitutional without it. While Justice Stephen Breyer claimed in his dissent that the majority opinion diverged from the Court’s decision in Locke, Justice Neil Gorsuch in his concurring opinion made a distinction between monies for religious use and those which simply go to a religious organization.30 Justice Gorsuch argued that states have the authority to block public funding from certain uses that include religious activities. However, blocking funding for organizations based solely on their identity, or status, as a religious group is unconstitutional discrimination. The Court’s finding here is known as the status/use distinction.31
The last of the Trilogy Cases and the Court’s most recent precedent on the funding of religious education is Carson v. Makin (2022). The law at issue in Carson was designed to ensure that rural families in Maine who do not live near public schools would still have access to free education. To do this, the state of Maine required school administrative units to contract with or pay tuition for approved private schools when public schools are not available. The law that established the tuition assistance program approved private schools to participate if they were accredited by the state and “nonsectarian.”32 Relying on their decisions in Trinity Lutheran and Espinoza, the Court overturned the Maine law, ruling that it violated the Free Exercise rights of families. Furthermore, the Court found that the state had no way to apply the status/use distinction meaningfully and in such a way that would not categorically discriminate based on religious status. Therefore, the Court found not only that the program was perpetuating unconstitutional discrimination based on religious status, but they also threw out the status/use distinction altogether.33
Finally, Peltier v. Charter Day Schools (2022) was a Fourth Circuit Court of Appeals decision that shed light on understanding how charter schools operate. The Fourth Circuit found that Charter Day School is required to follow federal nondiscrimination laws, as any other public school must.34 The significance of the Fourth Circuit Court’s ruling is to characterize charter schools as state—that is, public—actors. Charter schools must therefore adhere to federal laws in their operations. Because the Supreme Court declined the appeal of the decision, the ruling of the Fourth Circuit Court remains the controlling precedent for this issue until and unless the Supreme Court should take it up in the future.
St. Isidore Case Study
The Drummond Decision: Arguments Against a Religious Charter School
On June 25, 2024, the Supreme Court of Oklahoma issued a ruling in the case of Drummond v. Oklahoma Statewide Virtual Charter School Board. A 7-2 majority found that the charter school contract (“the Contract”) created by St. Isidore and accepted by the Charter School Board violates the Oklahoma Constitution, the Charter Schools Act, and the federal Establishment Clause.35 In its opinion, the Supreme Court of Oklahoma chose to focus on the state laws which prohibit the contract as well as the relevant SCOTUS precedent in the school choice issue.
The Oklahoma court’s opinion found that Oklahoma’s Constitution and the Charter Schools Act prohibit the St. Isidore contract.36 The language of Oklahoma Constitution’s no-aid provision prohibits public funds from the “use, benefit, or support of” a religious system, sectarian institution, or religious teacher.37 Although not an amendment, the state constitution includes language inspired by Congressman Blaine’s philosophy of separation between religious school and state. As a Catholic school, St. Isidore falls into the category of institutions blocked from state funding. The Oklahoma court also pointed out that the Charter Schools Act (“the Act”) is explicit that charter schools must be nonsectarian in their operations. The St. Isidore Contract itself acknowledges that the school is a religious institution and will not be adhering to the nonsectarian requirement. In this way, the Contract differs significantly from the model charter school contract. Oklahoma law does not require strict adherence to the model contract, as that would ignore the purpose of charter schools to provide “different and innovative teaching methods.”38 However, the Oklahoma court did find that St. Isidore violated the Charter Schools Act by sidestepping the nonsectarian requirement.
Second, the Oklahoma court determined that St. Isidore is a governmental entity and a state actor.39 This is the heart of the debate and the fundamental difference in perspective between St. Isidore and the state. If St. Isidore is a Catholic school that is contracting with the state to provide accessible education to its citizens, it must be treated as a private actor. However, if it is a public charter school, it must adhere to state law, including that which would bar it from religious instruction. St. Isidore contends that it is a private entity contracting to provide a service for the state. The school thus contends that it should be treated exactly like a religious private school. Religious private schools are protected by the ministerial exception and other Free Exercise rights under the Trilogy Cases.
However, it is explicit in Oklahoma law that a charter school is a public entity. Charter school systems are complex, meshing private authorizers and administrators with public sponsorship and funding; nevertheless, Oklahoma law is clear that Oklahoma charter schools fall under the categorization of public schools. The state of Oklahoma describes its charter system as follows: “Like any public school, charter schools receive state funding through the State Aid funding formula, set by law.”40
The Supreme Court of Oklahoma found the facts of this case parallel to those of Peltier, in which charter schools in North Carolina were explicitly considered public schools and thus recognized as state actors. The Peltier court concluded that it would be an affront to federalism to ignore how a state defines and organizes its charter school system.41 In Oklahoma, charter schools are explicitly categorized as public schools.42 If the state began supporting religious public schools, such a funding model violates Oklahoma’s current law: Oklahoma public schools “shall be open to all the children of the state and free from sectarian control.”43 School choice proponents are at liberty to argue that the law should be changed, but as it stands now, St. Isidore violates Oklahoma’s constitution.
Freedom and Independence: Arguments for a Religious Charter School
Brett Farley, Executive Director of the Oklahoma Catholic Conference and a member of the St. Isidore board of directors, describes charter schools as “private schools, publicly funded.”44 He holds that St. Isidore will be “operationally independent of the state” and therefore not a state actor or an instance of state establishment of religion.45 The argument for a religious charter school is grounded in the precedential shift from Establishment Clause to Free Exercise Clause concerns in recent SCOTUS opinions. This precedent shift, seen most dramatically in the Trilogy Case opinions, has contributed to the weakness of state Blaine amendments. Since Oklahoma’s Blaine amendment is one of the only things standing in the way of funding for St. Isidore, challenges to the viability of Blaine amendments provide support for St. Isidore’s survival.
Justice Dana Kuehn’s dissent from the majority Drummond decision emphasized this, grounding her reasoning on the neutrality principle utilized in the Trilogy Cases. The neutrality principle suggests that free exercise is implicated in a case where a generally available public benefit is not equally accessible to people of faith compared to the rest of the population; Carson v. Makin established that government scholarships must be available to religious private schools if they are available to nonsectarian private schools. Furthermore, Judge Kuehn concluded that government contracts for services, for which religious and nonreligious organizations should be equally qualified, are not prohibited by the “no-aid” provision in the Oklahoma Constitution.
Proponents of the St. Isidore Virtual School are further bolstered by another source of authority, that of state legislation. Oklahoma Senate Bill 404, passed in 2023, states: “It shall be deemed a substantial burden to exclude any person or entity from participation in or receipt of governmental funds, benefits, programs, or exemptions based solely on the religious character or affiliation of the person or entity.”46 According to Farley, Senate Bill 404 “codifies the Carson decision into Oklahoma law.”47 Notably, SB404 was omitted from both the Drummond opinion and Justice Keuhn’s dissent. Supporters of St. Isidore consider Drummond in the same light as the Trilogy Cases. In other words, the free exercise of religion, protected by federal and state laws, should be the main focus of the court.
Analysis
As Oklahoma state law stands now, state-funded religious education is unconstitutional. By their explicit terms, the Oklahoma Constitution and the Charter Schools Act do not permit religious education in a charter school. While Justice Kuehn is correct in saying that religious schools offer alternative educational experiences to the public school system, that fact alone cannot override strict laws requiring nonsectarian charter school education. Supporters of a religious charter school may be better advised to assert that it would be in the state’s best interest to remove the nonsectarian provision from the Charter School Act or to categorize charter schools as distinct from public schools. However, that is not the approach St. Isidore pursued in this case; instead, it tried to strongarm explicitly religious public education past laws which prohibit it.
In the Drummond decision, the court pointed out that the schools involved in the Trilogy Cases are private schools, and the legal question at issue was the extent to which those religious private schools could participate in state funding. St. Isidore’s contract designates the school as a charter school, not a private school. As the Oklahoma court majority wrote in their opinion, the St. Isidore contract seeks to establish a public entity. For that reason, the charter school does not enjoy the same free exercise protections as private organizations, such as the schools implicated in the Trilogy Cases.
Furthermore, the neutrality principle is not applicable in this case. There is no legal precedent or constitutional promise that Catholic education must be state-funded or generally available. While the school itself has myriad reasons to seek funding to support its mission, neither the state of Oklahoma nor the federal government has a responsibility to support any type of religious education. Indeed, the state has a compelling interest to avoid aiding a religious mission, regardless of how positive, impactful, or genuinely good it might be. This interest is rooted in the Establishment Clause of the First Amendment and any state policies that go beyond the demands of the Bill of Rights. It would be a separate issue altogether should religious organizations in Oklahoma desire to change the laws surrounding public funding for religious education. At issue before the Oklahoma court was whether the St. Isidore contract violated current laws and expectations for charter schools.
Moreover, the operational implications for the school to be state-funded cannot be overlooked. Specifically, the religious character of the school is threatened by government oversight, even by local lawmakers friendly to the institution. St. Isidore of Seville Catholic Virtual School established a contract with unique provisions because the school intends to operate according to the Catholic educational tradition, including the expectation that curriculum and religious practices will mold its students. The school does not claim to be nonsectarian; on the contrary, the contract states explicitly that St. Isidore “plans to derive ‘its original characteristics and its structure as a genuine instrument of the church’ and participate ‘in the evangelizing mission of the church.’”48 Furthermore, the school’s website states that “Online prayer services, scripture study through Lectio Devina, Visio Divina, the rosary, theology classes, study of the saints, virtue development, and service to family and community will round out the catechetical formation and sacramental life of our students.”49 The religious character of the school is inherently related to its academic activities as well. The school promises to integrate faith into the humanities and sciences, describing the subjects as “the art of number, the study of God’s well-ordered universe in math and sciences: earth, physical, biology, chemistry, astronomy, technology, music, and architecture.”50
Most of the time, private religious schools simply operate within the parameters of existing state statutes. These schools rely on donor support to keep their doors open with some state support in very specific programs such as subsidized school lunches or math education.51 By adhering to state-church boundaries set out by the federal and state government, religious schools find themselves both restricted and freed. On one hand, a lack of public funding means constant fundraising at every level, as well as tight budgets and almost always lower pay for teachers. At the same time, religious schools in America are not beholden to state oversight in the same way that traditional public schools and charter schools are. Religious schools enjoy a ministerial exception which allows them, while still following other federal nondiscrimination hiring practices, to hire only those candidates who most embody the religious mission of the institution. Even if St. Isidore was upheld by the Oklahoma court, the state has the authority to enforce federal hiring practices without exceptions, since all other charter schools must abide by public school hiring laws.
There is every reason to believe that St. Isidore would be expected to follow public school hiring requirements. The ministerial exception to governmental nondiscrimination policies is not available to public schools. The distinct character of Catholic education is jeopardized where there is no discretion to hire only those individuals who understand and contribute to the evangelical Catholic mission of the school. Without the ministerial exception and the other boundaries that protect Catholic education from state oversight, Catholic educational character and tradition is hollowed out. A religious school attempting to adhere to the rules of a secular state government, or a school that is fighting tooth and nail for any decision making power is not sustainable. Such an institution is destined for failure or resignation to secular government control.
In January 2025, the Supreme Court of the United States took up St. Isidore’s appeal of the Oklahoma Court’s decision in Drummond. Regardless of the decision SCOTUS makes regarding the constitutionality of St. Isidore itself, the Court will be forced to address unanswered legal questions on school choice, providing clarity to the issue. One such point that the Court hopefully will address is the viability of Blaine amendments. An important component to SCOTUS’s decision on St Isidore will be to provide a definitive ruling on the constitutionality of state law which explicitly bars funding to religious groups. In the past, the Court’s more narrow focus in the Trilogy Cases meant largely ignoring the broad issue of Blaine amendments.
The other issue which SCOTUS will likely be forced to address is the ability for a charter school to practice the ministerial exception in hiring. A Catholic school without a ministerial exception lacks a key mode of practicing its religion. This type of institution perhaps outwardly espouses religious beliefs, but it is unable to ensure that faculty and staff are role models of the faith for students. Should the Court decide that a Catholic diocese can authorize a charter school, the Court is obligated to equip that school with a ministerial exception in order to uphold its religious and operational integrity. Anything less would leave a husk of intellectual and spiritual potential, little more than lip service to public religion without respect or understanding for the core of Catholic education.
It is important to realize that support for St. Isidore is not drawn along the same lines as support for Catholic education; the constitutional and operational viability of the school is worth consideration by everyone who cares about religious identity and autonomy. Publicly funded Catholic education faces the serious obstacle of state oversight in its mission to form students into saints. The state of Oklahoma has drawn its line in the sand, making it clear that it is decisively and explicitly against funding any type of religious education. St. Isidore risks its Catholic heart and soul by signing a contract that vests ultimate funding and administrative authority in a government that is not on its side.
Katie Donahue
Katie Donahue ’25 is a senior from Traverse City, Michigan studying political science and psychology. She thanks Dr. Ryden for his guidance during this research project and The Bell Tower staff for their thoughtful editing.
Footnotes
1 Pope Benedict XVI, “Address of the Holy Father to Teachers and Religious,” September 17, 2010, https://www.vatican.va/content/benedictxvi/en/speeches/2010/september/documents/hf_ben-xvi_spe_20100917_mondo-educ.html.
2 “Oklahoma Charter Schools,” Oklahoma State Department of Education (265), accessed March 2, 2025, https://oklahoma.gov/education/services/assessments/oklahoma-charter-schools.html.
3 “School Choice: The Blaine Amendments & Anti-Catholicism,” Briefing to U.S. Commission on Civil Rights, June 1, 2007.
4 Matthew 6:24, Revised Standard Version Catholic Edition.
5 U.S. Library of Congress, “Church Leadership and the Ministerial Exception,” Constitution Annotated, accessed March 2, 2025, https://constitution.congress.gov/browse/essay/amdt1-2-3-4/ALDE_00013117/.
6 Marvin Lazerson, “Understanding American Catholic Educational History,” History of Education Quarterly 17, no. 3 (1977): 297–317, https://doi.org/10.2307/367880.
7 Ibid. 299.
8 Ibid. 300.
9 Ibid. 300.
10 Robert Gross, Public vs. Private: The Early History of School Choice in America (New York: Oxford University Press, 2018), 1-2.
11 Ibid. 3.
12 Lazerson, “Understanding American Catholic Educational History;” “School Choice: The Blaine Amendments & Anti-Catholicism.”
13 Ibid. 302.
14 “School Choice: The Blaine Amendments & Anti-Catholicism.”
15 Gross, Public vs. Private, 3.
16 Ibid. 3.
17 “School Choice: The Blaine Amendments & Anti-Catholicism.”
18 Mike Buell, virtual interview by Kathleen Donahue, June 18, 2024.
19 U.S. Library of Congress, “Church Leadership and the Ministerial Exception,” Constitution Annotated, accessed March 2, 2025, https://constitution.congress.gov/browse/essay/amdt1-2-3-4/ALDE_00013117/.
20 Everson v. Board of Education of the Township of Ewing, 330 U.S. (1947).
21 Ibid.
22 Lemon v. Kurtzman, 403 U.S. 602 (1971).
23 Aguilar v. Felton, 473 U.S. 402 (1985).
24 Agostini v. Felton, 541 U.S. 203 (1997).
25 Mitchell v. Helms, 503 U.S. 793 (2000).
26 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
27 Locke v. Davey, 540 U.S. 712 (2004).
28 Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017).
29 Ibid.
30 Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020).
31 “Carson v. Makin: Charting a Course Beyond the Status/Use Distinction,” October 20, 2021, https://fedsoc.org/commentary/fedsoc-blog/carson-v-makin-charting-a-course-beyond-the-status-use-distinction.
32 Ibid.
33 Ibid.
34 “Fourth Circuit Says Public Charter Schools Are State Actors, Supreme Court Declines to Weigh In” (Congressional Research Service, July 19, 2023), https://crsreports.congress.gov/product/pdf/LSB/LSB10958.
35 Drummond v. Oklahoma Statewide Virtual Charter School Board, OK 53 (Supreme Court of Oklahoma June 25, 2024), 8.
36 Ibid. 8.
37 Ibid. 8.
38 “Oklahoma Charter Schools Program,” Oklahoma State Department of Education, accessed March 2, 2025, https://oklahoma.gov/scsb/schools/charter-schools.html.
39 Drummond, 53 OK, 13.
40 “Oklahoma Charter Schools Program,” Oklahoma State Department of Education, accessed March 2, 2025, https://oklahoma.gov/scsb/schools/charter-schools.html.
41 Drummond, 53 OK, 20.
42 “Oklahoma Charter Schools Program.”
43 Drummond, 53 OK, 11-12.
44 Brett Farley, virtual interview by Kathleen Donahue, July 3, 2024.
45 Ibid.
46 “Oklahoma Religious Freedom Act,” Pub. L. No. SB 404 (2023).
47 Brett Farley.
48 Drummond, 53 OK, 5-6.
49 “Frequently Asked Questions,” St. Isidore of Seville Catholic Virtual School, accessed March 2, 2025. https://stisidorevirtualschool.org/.
50 “Frequently Asked Questions,” accessed March 2, 2025.
51 Mike Buell.