“If you love the Lord and you are excited about teaching …  we would love to talk to you,” Misty Smith, principal of St. Isidore of Seville Catholic Virtual School, says in to prospective educators.

But with the school’s future still tied up in court, and legal disputes likely to continue, it’s unclear whether taxpayers will be picking up the cost this fall. Church leaders are having an “ongoing conversation” about whether to launch the online program as a private school if a court blocks it from receiving state funds, said Brett Farley, executive director of the Catholic Conference of Oklahoma, a public policy organization.

Opponents argue that the charter, approved a year ago by a state board, violates both Oklahoma and federal laws against the government funding of religion. As the principal said in another video, the school plans to provide education through “a Catholic lens.” With rulings in two separate cases against the school pending, however, families are still stuck in limbo. Of the 218 applications the school received as of last week, over 160 have enrolled and another 35 are deciding whether to accept a seat in the school’s inaugural class.

“There are so many things up in the air,” said Joy Stevens, whose daughter Chloe secured a spot through the application lottery. As a contingency plan, Stevens registered her daughter in the Velma-Alma public schools, near their small farm south of Oklahoma City. “I don’t know if we can afford private.”

The state Supreme Court has yet to rule on a lawsuit by Oklahoma Attorney General Gentner Drummond it heard in April. It’s unclear whether that decision will come down before state funds are set to be distributed to the school in August — an estimated $1.2 million, according to the virtual charter school board that approved the application. 

In the second case, an Oklahoma County district court on July 24 will hear from a coalition of parents and advocates seeking an injunction to block the school from opening and receiving those funds. They argue that the school will discriminate against LGBTQ students and those with disabilities as well as families and staff who don’t follow Catholic teachings. 

They celebrated last week when the judge in the case ruled can move forward. 

Judge Richard Ogden denied most of the claims made by defendants who wanted him to dismiss the case. The defendants, including Republican state Superintendent Ryan Walters and the state board of education, assert that the school has promised not to discriminate. 

They argue that the school doesn’t violate laws against the government establishing a religion because St. Isidore is a private organization that will exist with or without the charter.  In addition, parents don’t have to enroll their children.

“No student is required to attend St. Isidore or adopt its beliefs,” they wrote in their motion. “St. Isidore is thus not forcing anyone to ‘submit’ to religious instruction or conditioning education on any ‘religious test.’”

‘A slippery slope’

The state, however, wants to make sure that all public school students receive religious instruction during the school day if their parents wish, as long as they’re not missing core classes. Gov. Kevin Stitt last week clarifying that districts can allow students to take up to three religious-related classes each week — and receive elective credit.

Ohio-based Christian nonprofit Lifewise Academy, for example, provides “evangelical Bible education” and of the Oklahoma law. The organization will expand to offer classes in 23 states this fall, but some opponents say allowing students to leave school during the day is disruptive and puts them further behind academically. 

Walters, however, quickly warned the , which plans to make its available to students, that it is not welcome. In 2019, the IRS granted the temple , just like other churches. But Walters doesn’t consider satanism a religion.

“I know that you guys like lying, and that’s the central part of your belief system,” Walters addressed the organization in . “But you will not be participating with our schools.”

Interest from the Satanic Temple shouldn’t necessarily come as a surprise to Walters or Stitt. Drummond predicted that state leaders would open the door to non-Christian organizations if they pushed for more religious freedom in public schools.

In an opinion last year, he said a religious charter could “create a slippery slope” and obligate the state to spend public dollars on charter schools “whose tenets are diametrically opposed” to the beliefs of many Oklahomans.

St. Isidore, meanwhile, is preparing to open and is “ordering what is needed for students and staff to be successful,” said Lara Schuler, senior director of Catholic education for the Archdiocese of Oklahoma City, which applied for the charter along with the Diocese of Tulsa. 

Teacher contracts won’t start until Aug. 1, and according to the school’s website, leaders are still looking for a fourth grade teacher and high school math, physics and chemistry teachers. At this point, the school is still well under its first-year capacity of 500 students. 

Stevens said she’s been in touch with staff to ask how her daughter can meet other incoming students and “study partners” over the summer. The school is planning two “all-school masses” during the year, according to its , and will form local parish hubs for additional worship and in-person gatherings, like field trips, for students. 

Stevens said Chloe, who has been attending public school, is worried about whether St. Isidore will be academically tougher than what she’s used to.

“Her only concern has been how rigorous the education looks. She’s worried she’s not going to be third in her class or second in her class,” Stevens said. 

Some involved in the litigation, however, think the school should delay its opening until the legal matters are settled.

“I think it’s unsettling to enroll and start students in a school, which is under court review — just seems impractical,” said Robert Franklin, chair of the Oklahoma Virtual Charter School Board. Though a defendant in the case before the state Supreme Court because of his position, he voted against the charter application. “Using students and families as chess board pieces seems unnecessary.”

That’s the date the state will begin to transfer public funds to St. Isidore of Seville Catholic Virtual School to hire teachers, plan curriculum and prepare to open in August. Members of Oklahoma’s Virtual Charter School Board, he said, “betrayed their oath of office” last June when they voted 3-2 to approve a charter with the Catholic church to open the school. 

But making arguments that will likely reach the nation’s high court, the attorney for the school said St. Isidore is a private entity and signing a contract with the state did not turn it into a public one. 

“St. Isidore was a private organization before it received a charter. The state did not create it,” said Michael McGinley. “It will continue to exist if the state ever terminates the charter. It would have continued to exist if the application had not been granted.”

For nearly two hours, both sides presented very different views of St. Isidore. Attorneys for the charter board and the school portrayed it as a natural outgrowth of a recent “trilogy” of U.S. Supreme Court decisions that favor faith-based schools seeking public funds. But to Drummond — and to advocates for public schools — the case differs from those opinions in that it would not only redefine charters but upset a founding constitutional principle. 

“This case is not about exclusion of a religious entity from government aid,” he said. “It is about the state creation of a religious school which unequivocally establishes religion.” 

Some of the justices were clearly skeptical of the school’s argument and appeared uncomfortable with the position they found themselves in.

“Are we being used as a test case? Sure looks like it,” said Justice Yvonne Kauger. 

And Justice Noma Gurich pushed back on arguments in favor of allowing the school to open.

“Where is the choice for taxpayers in Oklahoma not to support the Catholic Church or the Baptist Church, or the Episcopal Church or the atheist or any other church?” she asked.

What’s clear is that for Oklahomans and the nation more broadly, the case pushes school choice into a new arena.

“I feel that so much is at stake, as a parent, as a taxpayer, but also as an American,” said Erin Brewer, who has two students in the Deer Creek Public Schools, north of Oklahoma City. She’s also a plaintiff in challenging the legality of the school. “We’re talking about the fundamentals of our democracy. We’ve always had the promise that government would never compel religion upon us.”

But Phil Sechler, an attorney with Alliance Defending Freedom, who represents the charter board, said that because families apply to attend, the state isn’t compelling them to do anything. That point echoes arguments made in and , two cases in which the U.S. Supreme Court ruled in favor of parents who wanted to use school choice programs to attend parochial schools.

“St. Isidore only gets funds if there is enrollment,” he said. “That breaks the circuit between religion and government.”

One argument against the school has been that if the state allows St. Isidore to open, it would have to approve applications from schools representing other religions. But Sechler dismissed concerns about opening the “floodgates” to Muslim schools, atheist schools and others. 

Organizations seeking to open a charter, he said, still have to meet “ample neutral criteria” and provide a quality education that meets a need. For example, they are required to have a financial plan, hire qualified teachers and administer tests.

Oklahoma offers a universal that provides up to $7,500 per student for private school tuition, but McGinley said for some families, that program isn’t enough. They can’t afford the rest of the tuition. 

“That’s a real hardship for a lot of families,” he said. Charter schools “provide an education where families don’t have to come up with that difference.”

Preston Green, a University of Connecticut education and law professor, called McGinley’s argument a “brilliant framing” that helps the school’s case. He added that if the question eventually reaches the U.S. Supreme Court, he could see the conservative justices siding with the Catholic church.

“It just wouldn’t surprise me,” he said. But he added that the Oklahoma charter case is about more than just religion. It’s also about public education funding. “There’s no real consideration about the impact on the public school system. This could really create some fiscal strain.”

St. Isidore plans to serve 500 students in its first year, and so far, has enrolled or received inquiries about applying from 200 students. Enrollment would increase each year until it reaches 1,500 by the 2028-29 school year. 

Green also addressed the question, which Justice Dana Kuehn raised, of whether the state could simply “cure the problem” by not having charter schools at all. Some legal experts have suggested that blue states would be more apt to go that route than to approve religious charters. 

But Green thinks that’s far-fetched.

“Charters are such a part of the school environment,” he said. “In Black and brown, especially Black communities, charter schools are very popular, and the concerns about separation of church and state just do not resonate as much.” 

While the justices asked a lot of questions about state law and precedent, Nicole Garnett,  a University of Notre Dame law professor who was instrumental in preparing the church’s application, said it’s likely the case won’t end in Oklahoma.

“The pivotal issue in their minds appears to be whether St. Isidore’s approval is consistent with Oklahoma law, but they also seemed to understand that the federal constitution must ultimately control the outcome of the case,” she said. “We are hopeful the court will rule soon and allow St. Isidore to begin serving kids in the fall.”

That’s why they’ve applied to send their daughter Chloe to St. Isidore of Seville Catholic Virtual School, a first-of-its kind religious charter at the center of a national dispute over separation of church and state. 

Chloe is preparing for her confirmation at the end of April, a statement of her faith. Between Sundays, the family listens to a “Bible in a Year” from a Minnesota priest with a large social media following. But her mother worries about students at her daughter’s public school being sexually active and wants her to get the “wholesome” influences she thinks only a Catholic education would provide.

“Kids at that school don’t have the same values that we have. They’re constantly on their phones,” Joy said. “I’m not doing this to be some kind of trailblazer; I’m doing this for my kid.”

Those are typically among the reasons many parents opt for private and faith-based schools. But on Tuesday, the Oklahoma Supreme Court will hear arguments in a precedent-setting case that examines whether publicly funded charter schools — which must uphold the same civil rights as traditional schools — can explicitly endorse religion. Republican Attorney General Gentner Drummond will that the state’s Virtual Charter School Board violated both state and federal law when it voted 3-2 to approve the school’s charter application last June. Attorneys for the school, however, say preventing it from opening this fall would be religious discrimination that flies in the face of recent U.S. Supreme Court opinions.

Parties in the case recognize the significance of the moment. “It’s part of history, so I’m glad I’m going to be sitting there to watch how this unfolds,” said Robert Franklin, chair of the virtual charter board and one of two members to vote against the application. He supports school choice, but said “in Oklahoma we’re pushing this as far and as fast as we possibly can. I think it’s going to have some significant consequences.”

Notably, none of members who voted in favor of the school remain on the board. Republican Gov. Kevin Stitt appointed two, and , to his administration. The third, Scott Strawn, left to work at Baylor University in Texas.

To many observers, Bobek, who Stitt previously appointed to the state board of education, should not have been able to vote on the application. Republican House Speaker Charles McCall appointed him to the charter board just days before the vote, replacing a retired superintendent. Franklin asked him to recuse himself, but Bobek refused. According to Drummond’s office, his appointment should until five months later.

One of the most outspoken evangelists for the school, state Superintendent Ryan Walters, also won’t be represented before the court. But that’s not for a lack of trying. Walters, who dismisses the separation of church and state as a “,” failed three times to convince the court to carve out some time for the state education department during Tuesday’s oral arguments. He reasoned that since he supports the school, Drummond’s position isn’t the only one that matters. The school, however, joined Drummond in opposing the superintendent’s request, and Chief Justice M. John Kane turned Walters down.

The Catholic church’s effort to open St. Isidore — named for the of the internet — has split constitutional scholars and school choice experts from the start.

Religious freedom advocates say recent U.S. Supreme Court decisions laid the foundation for the nation’s first religious charter school. In Espinoza v. Montana Department of Revenue — a 2020 opinion about whether a family could use a tax credit scholarship at a faith-based school — the court said a “state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

That’s where the school’s argument breaks down, Drummond wrote in .

“St. Isidore is not a ‘private school.’ Under Oklahoma law, it is [a] public school,” he wrote. “Therefore, these recent U.S. Supreme Court cases have no relevance to this dispute.” 

Despite Oklahoma being a deeply red state, its high court tends to lean . Regardless of how the Oklahoma justices rule, however, observers expect the issue to end up in federal court. 

Issues of discrimination

Drummond’s lawsuit is not the only effort to stop the school from opening Aug. 12. Public school advocates, parents and religious leaders filed in October against the charter board, Walters and the state education department. 

The case “raises important issues” about discrimination not addressed by Drummond’s lawsuit, said Alex Luchenitser, associate vice president of Americans United for Separation of Church and State, one of the organizations representing the plaintiffs.

The school, which is holding an until Wednesday, will accept students with disabilities, but its says that services or accommodations for students can’t be “in opposition to church teaching.” The Archdiocese of Oklahoma City declined to elaborate. In addition, the school might not accept students whose services would “significantly alter the regular classroom process.”

Last year, before the board approved the school, Andrea Kunkel, general counsel for a state school administrators organization, warned that charter schools can’t ignore special education law.

“Although St. Isidore may not have readily available all services that future students may need, it has the legal obligation to either provide and pay for those services through a different model or arrange for them to be provided by someone else and pay for them,” she wrote in a letter to the board. 

LGBTQ students can attend, but staff will only use pronouns and nicknames that match their biological sex at birth, a stance that echoes Walters’s position on gender identity issues. The state board passed a rule in October giving members final say over students’ requests to change sex or gender designations in school records. One transgender student is . The charter school will also enforce a dress code requiring clothing to “correspond to the student’s biological sex.”

Those rules “are strong grounds for blocking the planned operation and state funding of the school,” Luchenitser said. Their case, he added, reflects the views of taxpayers, parents and others “who will be harmed if St. Isidore is allowed to operate and receive state funds.”

No hearings have been held in that case, which is in state court, but last week, the defendants asked Judge Richard Ogden to dismiss it. 

St. Isidore’s student/parent suggests that students who don’t adapt well to online learning will be encouraged to return to their district schools. 

But Joy Stevens expects that her daughter, who has been homeschooled and attended another Oklahoma virtual charter school during the pandemic, will do well.

Like many students who prefer online school, Chloe has a hectic schedule. The 13-year-old is a competitive gymnast, spending several hours a week in training. She is learning to fly a plane and helps tend to her family’s farm animals and garden.

Her mother says the family would have used Oklahoma’s tax credit scholarship program to pay for private school tuition.

But “there’s just no option out here,” Stevens said. “If Chloe is accepted or chosen in the lottery, it is a sure sign of God’s will for her and our family.”