The Oklahoma Supreme Court has declared the nation’s first religious charter school unconstitutional. Citing the Oklahoma Constitution, which contains an anti-Catholic Blaine Amendment, the court found that a charter granted by the state board of education to St. Isidore of Seville Catholic Virtual School, a tuition-free online school for grades 1 through 12, was prohibited.
Charter schools are at the heart of Oklahoma’s efforts to raise parental choice in the state’s education system. Even though the government has assumed responsibility for “free public education,” that does not mean that education must be provided 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 the application, enrollment is not circumscribed to Catholic children, but requires religious instruction and Mass attendance and “participates in the mission of the Church.”
Almost immediately thereafter, the Republican, I repeat, Republican Attorney General of Oklahoma, Gentner Drummond, filed a legal action to stop the school. Ironically, he appealed to religious bigotry to justify his act with a relic of anti-Catholic religious bigotry.
Drummond warned that “the approval of a charter school by one faith group will compel the approval of charter schools by all faith groups, even those that most Oklahomans would consider objectionable and unworthy of public funding.” The court agreed this week that, as a public school, a charter school “must be non-denominational.”
I was not aware that it was the government’s job to decide which religions and faith groups were “objectionable and not worthy of public funding.” It is fair to say that Drummond was not thinking of the Southern Baptist Convention.
The Blaine Amendments are remnants of a form of virulent anti-Catholicism that is typical of America and is now found only on social media.
The Blaine Amendments are named after a failed constitutional amendment introduced to the U.S. Congress in 1875 by Senator James G. Blaine of Maine. The proposed amendment was modeled on provisions already passed by several states that addressed efforts by Catholics to obtain a share of the funds for their public schools, which they had created because they did not want to send their children to Protestant-oriented public schools. Although the public schools of this period were described as “non-denominational,” this description did not mean that they were non-religious or secular in the newfangled sense. Rather, it meant that they did not teach the doctrines of a particular Protestant sect or denomination. However, religious activities did take place, such as school prayers, readings and lessons from the King James Bible (Protestant), and the singing of hymns. Understandably, Catholics and certain other religious groups were dissatisfied with this state of public schools.
After Catholics’ efforts to obtain better treatment in the public schools failed, they demanded a share of public funds to support their own schools. This angered the Protestant majority and virulent anti-Catholicism emerged. Among other things, this led to the emergence of 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 voters in several states to pass laws or constitutional provisions prohibiting public funding of so-called “sectarian” schools. Of course, as the U.S. Supreme Court ruled in Mitchell vs. Helms530 U.S. 793, 828 (2000) (plural op.), it was an “open secret” that “sectarian” was a code word for “Catholic.” For example, Massachusetts passed one of the first Blaine Provisions in 1855, during that early wave of anti-Catholic sentiment in response to increasing Catholic immigration after the Know-Nothing movement briefly seized control of the Massachusetts state government.
This anti-Catholic fanaticism expanded after the Civil War, and in September 1875 President Grant (himself a former “Know Nothing”) gave a widely publicized speech warning of a novel civil war based not on race but on religion. Grant urged Congress to pass an amendment to the Constitution prohibiting public funding of so-called cult schools. James G. Blaine, then a member of the U.S. House of Representatives, took on the task: within days he introduced an amendment to the U.S. Constitution that did exactly what Grant had urged. Blaine’s proposed federal amendment was based on language from those states that had already passed constitutional provisions prohibiting support for “cult” schools. It passed overwhelmingly in the House of Representatives, but fortunately fell just brief of the two-thirds majority needed in the Senate to send it to the states for ratification.
By relying strictly on the Oklahoma Constitution, the court appeared to want to avoid federal scrutiny. Three recent Supreme Court cases suggest that the Supreme Court has been using the Blaine Amendments, which 37 state constitutions.
The first of these cases, which occurred in 2017 Trinity Lutheran Church of Columbia v. Comerdealt with a Christian preschool that was denied public funding to improve safety on its playground, which was open to the public outside of school hours. The school’s administration filed suit, arguing that this constituted religious discrimination in violation of the First Amendment’s protection of religious freedom. The Supreme Court agreed, arguing that denying generally available funds to which Trinity Lutheran “would otherwise be entitled, simply because it is a church, is nevertheless unconstitutional and cannot be tolerated.”
Three years later, Espinoza v. Montana Department of Revenue State support for students attending religious schools was further expanded. The court ruled that Montana’s tax credit program must apply to parents who send their children to private schools, even if those schools are religious.
In 2022, the Court expanded this perspective in Carson vs. MakinMaine, with its low population density, offers parents in areas without their own public schools assistance in paying tuition for other schools, as long as they are non-denominational. The Supreme Court found that This program should also apply for parents who do not have a public school nearby and want to send their child to a religious school. The program is unconstitutional, the majority wrote, because it is neither religion-neutral nor does it offer parents the opportunity to send their children to a school of their choice.
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In an article in Espinoza, Chief Justice Roberts wrote:
This “supreme law of the land” condemns discrimination against religious schools and the families whose children attend them. Ibid., p. 180. They are “members[s] the community,” and their exclusion from the local scholarship program was “abhorrent to our constitution” and “unacceptable.”
The Archdiocese of Oklahoma City announced will appearl to the Supreme Court.
