In a much-awaited case brought forth by Oklahoma Attorney General Gentner Drummond (Drummond v. Oklahoma Statewide Virtual Charter School Board), the Oklahoma State Supreme Court ruled 6-2 on June 25, 2024, that St. Isidore of Seville Catholic K-12 Virtual Charter School is unconstitutional and cannot open and enroll students in Fall 2024.
The online religious charter school is sectarian and not permitted to receive any public funding, said the court. Writing for the majority, Justice James Winchester said that, “the contract between the state board and St. Isidore violates the Oklahoma Constitution, the Oklahoma Charter Schools Act and the Establishment Clause of the U.S. Constitution.” He added that, “Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian. However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State.” Winchester also stated that, “What St. Isidore requests from this court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the free exercise clause. It is about the state’s creation and funding of a new religious institution violating the establishment clause.”
The Free Exercise Clause and the Establishment Clause make up the First Amendment to the U.S. Constitution. Justice Dustin P. Rowe dissented from much of the majority opinion while Justice Dana Kuehn dissented entirely with the majority.
Reuters stated that the religious online charter school would have siphoned about $26 million from public coffers in the first five years of operation. The real amount is likely higher. Charter schools across the country siphon billions of dollars a year from public schools, increase segregation, and fail and close regularly.
This unprecedented ruling blocks what would have been the first publicly funded religious charter school in the U.S. It invalidates the approval in October 2023 of St. Isidore by the Statewide Virtual Charter School Board, an entity comprised mostly of unelected private persons. Charter school authorizers around the country typically consist of many unelected individuals from the business sector. Such entities usually embrace capital-centered ideas and policies.
The sponsors of the deregulated virtual charter school, the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa, have openly stated that the religious virtual charter school would be open to students statewide, rely directly on Catholic teachings, and use public funds to operate. Catholic leaders have never concealed their mission to evangelize students at the online religious charter school. In fact, St. Isidore students would not only “be taught Catholic doctrine,” they would also be “required to attend mass,” reported Oklahoma Voice.
The Oklahoma Supreme Court ordered the termination of St. Isidore’s contract with the Oklahoma Statewide Virtual Charter School Board, which became the new Statewide Charter School Board on July 1, 2024. “The [nine-person] board will succeed the [five-person] Statewide Virtual Charter School Board, which oversaw only online charter schools in Oklahoma,” says The Oklahoman. The new entity will oversee all charter schools in the state and will be comprised mainly of unelected business people with greater responsibilities and powers.
For their part, the Catholic sponsors of the virtual charter school have pledged to appeal the Oklahoma Supreme Court ruling to the U.S. Supreme Court, and they plan to open the online religious charter school in the 2025-2026 school year. On July 5, attorneys for the online religious charter school asked the Oklahoma Supreme Court for a stay of its order to have its contract rescinded by the new Statewide Charter School Board until the U.S. Supreme Court considers the case. The new Statewide Charter School Board, which met for the first time on July 8, held off on terminating the virtual school’s contract. The new unelected board claims that it is waiting to see how legal proceedings play out in the coming weeks and months. On July 17, Drummond scolded the new board for not rescinding the contract for the Catholic virtual charter school. He told the new board, “You must know and accept that no state agency, board, or commission may willfully ignore an order from Oklahoma’s highest court.” Private religious forces are hoping that recent decisions by the U.S. Supreme Court that further abolish the distinction between public and private will work in their favor.
Such developments and contradictions arise in the context of neoliberal forces working for the last few decades to restructure the state in ways that change governance and administrative arrangements to expand privatization. Blurring the public-private distinction is central to neoliberal efforts to further privilege private interests while marginalizing the public interest. This is why today there is little distinction between the state and Wall Street. We live in a system of direct rule by the rich. Private monopoly interests, not the public, control the economy and the state. In the years ahead, major owners of capital will strive to further dominate the state so as to privatize more institutions, programs, enterprises, services, and governance itself.
“Public” and “private,” it should be stressed, are legal, political, philosophical, and sociological categories that mean the exact opposite of each other; they are antonyms. Confounding them is problematic, both conceptually and practically. It is self-serving, not just intellectually lazy, to mix up two sharply distinct categories like “public” and “private.” It is like saying hot and cold mean the same thing. In its essence, private property is the right to exclude others from use of said property; it is the power of exclusion; [1] It is not concerned with transparency, inclusion, the common good, or benefitting everyone.
State constitutions typically prohibit states from using public money to support or benefit religious institutions and entities. As a general rule, states cannot use public money to fund religious schools. Historically, there has been a powerful trend in U.S. society to keep religion and state separate (the so-called “wall of separation between church and state”). Modern conditions and requirements dictate that states must avoid sponsoring, promoting, funding, or privileging any religion. There can be no “religious liberty” when a state sponsors, funds, privileges, or entangles itself with any religion or sect. The state is supposed to represent the interests of all members of the polity, regardless of religion.
The Oklahoma Supreme Court argued that had St. Isidore of Seville Catholic Virtual Charter School opened as a regular nonsectarian “public” charter school instead of a religious charter school, it could have received public funds and operated normally.
In reasoning in this manner, the court correctly negated publicly-funded sectarian education arrangements but erroneously sanctioned the continued funneling of public funds from public schools to deregulated charter schools that are public only on paper. In other words, the highest court in Oklahoma saw no problem with charter schools siphoning public funds from public schools. The court overlooked the fact that charter schools in Oklahoma, like the rest of the country, are privately-operated and differ legally, philosophically, pedagogically, and organizationally from public schools.
The court thus blundered when it repeatedly referred to charter schools as public schools in its ruling. It uncritically repeated flawed and banal assertions about the “publicness” of charter schools. It incorrectly characterized charter schools as state actors even though private entities are typically the only entities that hold charter school contracts in the U.S.
It is generally recognized that how an entity is described on paper can often differ greatly from how it operates in reality. There can be a large chasm between the two. People understand that words and deeds are not always aligned. Indeed, there has always been a big gap between rhetoric and reality in the charter school sector. Charter school owners and promoters have long confused words on paper with empirical realities. They want people to believe that just because something is on paper, it is automatically true, valid, and unassailable. They have taken abstraction of certain ideas to incoherent and detached levels, while also merging legalese and lawfare to advance their agenda. For 32 years charter school owners and promoters have strived to create a legislative veneer of respectability, but lack of legitimacy remains a nagging problem in the charter school sector.
To be clear, all charter schools in the U.S. are privately-operated and governed by unelected private persons. Unlike public schools, charter schools are not run by publicly elected people. In fact, many charter schools are directly owned-operated by for-profit corporations that openly cash in on kids as their education model. For example, most charter schools in Michigan and a few other states are openly for-profit charter schools. But even so-called “non-profit” charter schools regularly engage in profiteering.
Legally, private operators of charter schools exist outside the public sphere, which makes them private actors, not state (public) actors. Charter school operators are not government entities or political subdivisions of the state. This is why most constitutional provisions apply to public schools, which are state actors, but do not apply to the operators of charter schools or the students, teachers, and parents involved with them. Charter schools teachers, for example, are legally considered “at-will” employees, the opposite of public school teachers. The rights of teachers, students, and parents in public schools are not the same as the rights of teachers, students, and parents in charter schools.
For these and other reasons, charter schools are deregulated independent schools. As private actors, they are not subject to the same requirements as traditional public schools. They do not operate in the same way as public schools. They are not “entangled” with the state in the same way that public schools are. Charter schools do not have the same relationship with the state as public schools. The state, put simply, does not coerce, compel, influence, or direct charter schools to act in the same way as public schools. The state does not play a significant role in charter school policies and actions, certainly not in the way that it does with traditional public schools. This means that the state cannot be held responsible for the actions and policies of private actors.
In the U.S., state laws explicitly permit charter schools to avoid most laws, rules, statutes, regulations, and policies governing public schools. Charter schools can essentially “do as they please” in the name of “autonomy,” “competition,” “accountability,” “choice,” “parental empowerment,” and “results.” It is no accident that charter school advocates boast every day that charter schools are “free market” schools, which means that they are based on the law of the jungle. President Bill Clinton, a long-time supporter of charter schools, once correctly called charter schools “schools with no rules.” Charter schools have long embraced social Darwinism and a fend-for-yourself ethos.
The “free market” ideologies of competition, individualism, and consumerism are therefore central to the creation, operation, and expansion of charter schools. Fending-for-yourself in the pursuit of education is seen as natural, normal, and healthy by charter school owners and promoters. There can supposedly be no better way to organize education and life according to charter school owners and promoters. Thus, when a charter school fails and closes, one is supposed to quickly and effortlessly find a new school, complain about nothing, move on, and nonchalantly accept that “this is just how life is.” In this outdated, disruptive, and unstable set-up, one is expected to be a “rugged individual” who embraces inequality and competition. Winning and losing is supposedly inevitable. Put simply, neoliberals and privatizers do not view education as a basic human right that must be guaranteed in practice. Commodity logic—the logic of buying and selling—guides their outlook and agenda.
Further, the notion, promoted by some, that charter schools are “public-private partnerships” is also flawed and dangerous because it implies that there is a public component to charter schools and that a fair, balanced, equal, meaningful, and mutually-beneficial relationship can exist between the public sector and the private sector. This neoliberal notion covers up the fact and principle that public funds belong only to the public and must not be wielded or controlled by the private sector at any time. If the private sector wants income and revenue, then it should generate income and revenue through its own activities and operations, without using the state to seize public funds that do not belong to it. Public funds must serve the public and not be claimed by private interests through new governance arrangements that harm the public. So-called public-private “partnerships” further concentrate accumulated social wealth in private hands and restrict democracy.
It is disinformation to claim that the public sector needs the private sector for government, society, institutions, infrastructure, and programs to exist and function at a high level. The public sector would be far healthier and more human-centered if a public authority worthy of the name kept all public funds in public hands at all times and used public funds only to advance the general interests of society. It should also be recalled that the private sector has been rife with fraud, failure, scandal, and corruption for generations. We see this in the news every day. Privatization does not guarantee efficiency, success, or excellence. Privatization invariably increases corruption and negates human rights.
Other differences between charter schools and public schools include the fact that, as privatized education arrangements, charter schools cannot levy taxes like public schools and do not accept or keep all students. Unlike public schools that accept all students at all times, charter schools, which are said to be “welcoming,” “free,” and “open to all,” routinely cherry-pick students. In addition, many charter schools are legally permitted to hire uncertified teachers.
Charter schools also frequently fail to uphold even the few public standards enshrined in state charter school laws (e.g., open-meeting laws, reporting laws, enrollment requirements, and audit laws). These are laws and requirements they are supposed to embrace but often violate. It has often been said that the charter school sector is not transparent or accountable, even though it seizes billions of dollars every year from the public, leaving the public worse off—and all under the veneer of high ideals. Dozens of other differences between public schools and charter schools can be found here.
Charter, by definition, means contract. Charter schools are contract schools. Contract law is part of private law in the U.S., not public law. Private law deals with relations between private citizens, whereas public law deals with relations between the state and individuals. Thus, the legal basis and profile of charter schools differs from the legal basis and profile of public schools, which is why, as noted earlier, charter school students, parents, and workers have different rights and protections than public school students, parents, and workers.
Charter schools in the U.S. are private entities that enter into contract with the state or entities approved by the state. The state does not actually create the charter school, it mainly delegates (not authorizes) a function to the private contractor of the school; it is outsourcing education; it is commodifying a social responsibility. This outsourcing of constitutional obligations to private interests does not automatically make said interests state actors.
A private actor does not automatically and magically become a public agency with public power just because it is delegated a duty by the state through a contract. Generally speaking, not a single charter school in the U.S. is owned-operated by a public entity or government unit. Unlike public schools, charter schools are usually created by private citizens, often business people, and often with extensive support from philanthrocapitalists. These private forces or entities do not suddenly become public entities just because they contract with the state or an entity approved by the state. Partnering with the government is not the same as being part of the government. And simply receiving public funds to carry out a function does not spontaneously transform a private entity into a public entity. It is well-known that thousands of private entities in the country receive some sort of public funding but they do not suddenly stop being private entities.
Nor can charter schools be deemed public just because they are called “public” 50 times a day. Repeating something endlessly does not instantly make something true. There would actually be no need to call charter schools “charter” schools if they were public schools proper. The word “charter” before the word “school” instantly sets charter schools apart from public schools. The word “charter” creates a demarcation. Similarly, there would be no need to call charter schools “schools of choice” if they were traditional public schools. “Free market” phrases such as this one also communicate a difference between charter schools and public schools. Today, ninety percent of the nation’s roughly 50 million students attend a public school in their zip code. Neoliberals have successfully starved many of these schools of public funds over the past 45 years.
It is also worth noting that the academic performance of cyber charter schools in the U.S. is notoriously abysmal (see here, here, and here). Equally ironic in this situation is that Epic Charter Schools in Oklahoma, a massive online charter school, has been charged by various government authorities with different crimes in recent years. The owners-operators of Epic Charter Schools have been charged with embezzlement, money laundering, computer crimes, and conspiracy to defraud the state. Such crimes have been widespread in the entire charter school sector for three decades. Equally noteworthy is the fact that under Oklahoma law charter school teachers do not have be certified to teach.
Currently, there are more than 60 privately-operated charter schools in Oklahoma. About 3.8 million students (7.4% of U.S. children) are currently enrolled in nearly 8,000 charter schools across the country.
The inescapable law of the falling rate of profit under capitalism, especially since the mid-1970s, continues to coerce capital-centered forces to privatize as much of the public sector and social programs as they can in order to maximize profits and avoid extinction. Capitalist economies everywhere are in deep trouble and are becoming more reckless in their narrow quest to maximize profits as fast as possible. Greed is at an all-time high.
Capital-centered forces will continue to restructure the state apparatus to advance their retrogressive agenda under the banner of high ideals. This includes raiding the public education sector and privatizing it in the name of “serving the kids,” “empowering parents,” “promoting competition,” and “increasing choice.” So far, “school-choice” schemes have made some individuals very rich while lowering the level of education and harming the public interest.
Charter schools represent the commodification of education, the privatization and marketization of a modern human responsibility in order to enrich a handful of private interests. The typical consequences of privatization in every sector include higher costs, less transparency, reduced quality of service, greater instability, more inefficiency, and loss of public voice. Whether it is vouchers, so-called “Education Savings Accounts,” or privately-operated charter schools, education privatization (“school-choice”) has not solved any problems, it has only multiplied them. [2]
Charter schools are not public schools. If privately-operated charter schools wish to exist and operate they must do so without public money. Public funds belong only to the public and must be used solely for public purposes. This means guaranteeing a range of services, programs, and institutions that continually raise living and working standards. It means serving the common good at the highest level and blocking any schemes that undermine this direction.
FOOTNOTES
[1] The right to exclude is “one of the most treasured” rights of property ownership.
[2] See The Privatization of Everything: How the Plunder of Public Goods Transformed America and How We Can Fight Back (2023).
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