Oklahoma’s Supreme Court has declared what would have been the nation’s first religious charter school unconstitutional. Relying upon Oklahoma’s constitution, which contains an anti-Catholic Blaine Amendment, the court found that a charter granted by the state school board to the St. Isidore of Seville Catholic Virtual School, a tuition-free, online, K-12 institution, was prohibited.
Charter schools are the core of Oklahoma’s efforts to inject parental choice into the state educational system. While the government may have taken on the responsibility to provide a “free, public education,” that does not imply the education has to be delivered by government employees. St. Isidore of Seville Catholic Virtual School was a joint project of the Archdiocese of Oklahoma City and the Diocese of Tulsa. According to its application, admission is not limited to Catholic children, but it does require classes in religion, attendance at Mass, and it “participates in the evangelizing mission of the Church,”
Almost immediately, the Republican, I say again, Republican Attorney General of Oklahoma Gentner Drummond filed a lawsuit to stop the school. Ironically, he appealed to religious bigotry to justify his using a relic of anti-Catholic religious bigotry to defend his action.
Drummond has warned that “the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.” The court agreed this week that as a public school, “a charter school must be nonsectarian.”
I wasn’t aware that government officials were supposed to be in the business of deciding which religions and religious denominations were “reprehensible and unworthy of public funding.” It’s probably fair to say that Drummond didn’t have the Southern Baptist Convention in mind.
The Blaine Amendments are remnants of a form of virulent anti-Catholicism peculiar to America and now only found on social media.
Blaine Amendments are named after a failed federal constitutional amendment introduced in the U.S. Congress by Sen. James G. Blaine of Maine in 1875. The proposed federal amendment was modeled on provisions already adopted by several states directed at efforts by Catholics to obtain a share of public school funding for their schools, which they had created because of their unwillingness to send their children to the Protestant-oriented public schools. Although the public schools of that period were called “nondenominational,” that description did not mean they were non-religious or secular in today’s terms. Rather, it meant they did not teach the doctrine of any particular Protestant sect or denomination. However, they did conduct religious activities such as school prayer, readings and lessons from the King James (Protestant) Bible, and hymn singing. Understandably, Catholics and certain other religious groups were unhappy with this state of affairs in the public schools.
After Catholics’ efforts to secure better treatment in the public schools failed, they began demanding a share of public funds to support their own schools. This upset the Protestant majority, and a virulent anti-Catholicism erupted. Among other things, it gave rise to the nativist Know Nothing movement, which gained prominence—and political dominance—in a number of states in the mid-19th century. The Know Nothings and those inspired by them convinced electorates in several states to adopt laws or constitutional provisions barring public funding of so-called “sectarian” schools. Of course, as the U.S. Supreme Court recognized in Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality op.), it was an “open secret” that “sectarian” was code for “Catholic.” For example, Massachusetts adopted one of the earliest Blaine provisions in 1855, during this early wave of anti-Catholic sentiment in reaction to increased Catholic immigration, after the Know Nothing movement briefly captured control of the Massachusetts state government.
This anti-Catholic bigotry metastasized after the Civil War and, in September 1875, President Grant (himself a former Know Nothing) delivered a widely publicized speech warning of a new civil war based not on race, but on religion. Grant pressed Congress to adopt a constitutional amendment to prohibit public funding of so-called sectarian schools. James G. Blaine, then a member of the U.S. House of Representatives, took up the charge: Within days, he introduced an amendment to the U.S. Constitution to do just what Grant had urged. Based on the language from those states that had already adopted constitutional provisions denying aid to “sectarian” schools, Blaine’s proposed federal constitutional amendment passed overwhelmingly in the House but, fortunately, fell just shy of the supermajority needed in the Senate to proceed to the states for ratification.
By relying strictly on the Oklahoma Constitution, the court seems to have hoped to avoid federal scrutiny. Three recent Supreme Court cases indicate that SCOTUS would make short shrift of the Blaine Amendments, which are present in 37 state constitutions.
The first of these cases, 2017’s Trinity Lutheran Church of Columbia v. Comer, dealt with a Christian preschool that was denied public grants to improve safety in its playground, which was open to the public when classes were not in session. School administrators sued, arguing that this constituted religious discrimination in violation of the First Amendment’s protections for freedom of religion. The high court agreed, reasoning that denying generally available funding, for which Trinity Lutheran was “otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
Three years later, Espinoza v. Montana Department of Revenue further opened up government aid to students attending faith-based schools. The court ruled that Montana’s tax credit program for parents sending their children to independent schools must apply even if those schools are faith-based.
In 2022, the court extended this perspective in Carson v. Makin. Maine, with its low population density, offers assistance to parents in areas lacking their own public schools to help pay tuition for other schools, as long as they are nonsectarian. The Supreme Court found that this program should also apply to parents without a local public school who wish to send their child to a religious school. The program was unconstitutional, the majority wrote, because it was not neutral toward religion, nor did it afford parents the opportunity to send their children to schools of their choice.
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Chief Justice Roberts, writing in Espinoza, said:
That “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. Id., at 180. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.”
The Archdiocese of Oklahoma City announced it will appeal to the Supreme Court.
