The opening of St. Isidore of Seville Catholic Virtual School, the first religious charter school in Oklahoma and in the country, has garnered backlash from the existing charter school movement, prompting the state’s supreme court to hear arguments on the legality and legitimacy of the school’s existence.

Under Oklahoma law, charter schools are considered to be public institutions and they must be “nonsectarian.”

“This cannot be consistent with the separation of church and state,” Republican Attorney General Gentner Drummond told the state’s supreme court while arguing against the opening of St. Isidore earlier this month.

The move to create St. Isidore is also highly opposed by the National Alliance for Public Charter Schools and the National Association of Charter School Authorizers. James Merriman, chief executive officer of the New York City Charter School Center, raised concern that removing restrictions on religious charter schools could invite charter opponents to attack charter schools for funding religious education.

However, those in support of the creation of St. Isidore, including Phil Sechler, an attorney with Alliance Defending Freedom, make the argument that charter schools are not public institutions nor government actors but instead are private contractors. He makes the argument that religious schools should be able to apply for a charter just as a secular group would. 

“Right now the law says any group can come — unless you’re religious,” Sechler told the Wall Street Journal.

Recent U.S. Supreme Court decisions have found that states cannot restrict religious private schools from receiving a benefit that a nonreligious school may get. If the decision is made on federal constitutional grounds it could find its way up to the Supreme Court.

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Charter schools use public dollars and are overseen by public agencies. However, they are run by private nonprofit organization boards. It’s garnered bipartisan support as a way to allow for school choice. Charter schools exist in 44 states and account for 7% of all publicly educated students. The creation of St. Isidore may start a domino effect that could lead to more funding going toward alternatives to traditional district-run public schools.

“It’s another step in the revolution of public education, but a small step,” said Andy Smarick, a senior fellow at the Manhattan Institute, a conservative think tank.