Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 2, 2022

"Religious Charter Schools are Legal in Oklahoma"

Excellent news out of Oklahoma:

In an official legal opinion, Oklahoma Attorney General John O’Connor says a state law that prohibits religious entities from operating a public charter school likely violates the First Amendment to the U.S. Constitution and “therefore should not be enforced,” based on rulings from both the U.S. Supreme Court and the Oklahoma Supreme Court.

AG O'Connor's opinion is sound, and rock-solid (and not simply because he has the good judgment to cite Nicole Stelle Garnett)

The opinion concludes:

Based on state court rulings, the attorney general’s opinion declared that allowing religiously affiliated participants to provide educational services to children by entering into a written agreement with a charter school “would not violate the Oklahoma Constitution” because “charter schools are entirely optional for parents” and “allowing the religious or religiously affiliated to participate would make the system neutral rather than hostile to religion.”

“The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ … and then decide that any and every kind of religion is the wrong kind of diversity,” the opinion stated. “This is not how the First Amendment works.”

It has taken many years, but the correction in the Supreme Court's First Amendment doctrine relating to cooperation between governments and religious schools is both striking and welcome.  Contrary to what one reads in the typical Court-watching-journalist's commentary, the version of "strict separation" that is so often treated as canonical was a weird, ahistorical, and unwise blip, that distorted education-reform policy for a few decades but that has no basis in American history and practice and that -- thankfully -- has been, step-by-step, dismantled since the mid-1980s.  


Garnett, Rick | Permalink