OKLAHOMA CITY (KFOR) – A recent opinion from the Oklahoma State Attorney General stated that the Oklahoma Charter Schools Act is unconstitutional.

Oklahoma AG John O’Connor said he did not believe the U.S. Supreme Court would agree that “a state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools in accordance with their faith alongside other private participants.”

The Charter Schools Act has two lines that O’Connor took issue with:

  1. “a charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations”
  2. “A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution”

This means that the state cannot allow for charter schools to be run by private religious organizations.

O’Connor said that is unfair, since other private entities can be granted authority if they meet the right requirements.

He used three U.S. Supreme Court cases to make his argument:

  • Trinity Lutheran Church of Columbia, Inc. v Comer (2017)
  • Espinoza v. Montana Department of Revenue (2020)
  • Carson v. Makin (2022)

Oklahoma Education Association argued that those cases cannot be used to justify tax dollars going to religious-based schools.

“The recent decisions of the US Supreme Court are not contextually similar to the suggestion that a publicly funded school district requiring affirmation of particular religious tenets and doctrine as a condition of admission would receive a similar endorsement from a court,” read, in part, OEA’s statement.

Charter schools are public schools. They are funded with tax-payer dollars to help provide an alternative learning environment for students.

The Department of Education said charter schools can be authorized if they are affiliated with a private charter management company, and it said there are five or fewer of those companies operating in the state. Those companies are not religious-based.

Rebecca Wilkinson, the executive director of the Statewide Virtual Charter School Board, requested the opinion because of a letter from the Archbishop of Oklahoma City.

In a letter from November of 2021, Archbishop Paul Coakley said the Archdiocese of OKC “intends to apply for authorization to form and operate a virtual charter school in the state.”

Wilkinson requested the opinion from the AG to determine how her office should move forward, considering the Charter Schools Act.

If you are thinking that this issue was decided before, you are correct.

In 2016 Oklahoma voters defeated State Question 790.

SQ790 was intended to eliminate the ban on tax dollars being used for religious purposes.

Article II, Section 5 in the Oklahoma Constitution, known as the Blaine Amendment, prohibits public money from being spent for religious purposes. SQ790 would have stripped away that amendment.

It is unclear how O’Connor’s opinion stands up against the Blaine Amendment.

OEA highlighted that the opinion is only a recommendation and is not binding.

“The Oklahoma Attorney General does not have the power to change our constitution, nor does he have the power to change our statutes by predicting an outcome of a future case litigated before a state or federal court,” said OEA.