Why is a Republican fighting against religious school choice at the Supreme Court?
Why is a Republican fighting against religious school choice at the Supreme Court?
T he Supreme Court will hear arguments Wednesday in Oklahoma Statewide Charter School Board v. Drummond (along with its companion case, St. Isidore of Seville Catholic Virtual School v. Drummond), a case testing whether the free exercise clause of the First Amendment requires Oklahoma to approve a Catholic charter school on the same terms as a secular charter school. The school, and the state charter school board of Oklahoma, argue that it does, under the principles of Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022).
The law is one story in this case; the politics are another. Conservatives and Republicans in Oklahoma should be asking themselves what on earth the state’s Republican attorney general, Gentner Drummond, is doing siding with legal progressives against the school. Without Drummond’s determined opposition, this case would never have gone this far.
How Oklahoma Got Drummond
Oklahoma’s previous attorney general, John O’Connor, was a real conservative. The George W. Bush administration short-listed him for a judicial nomination, and the first Trump administration nominated him for a district judgeship. O’Connor filed an amicus brief in Dobbs supporting the overturning of Roe v. Wade and fought for Oklahoma’s right to apply the death penalty. When asked to provide a legal opinion on approving a Catholic charter school, O’Connor gave it his blessing.
But O’Connor inherited a political mess. Oklahoma is effectively a one-party state. The good news is that the ruling party can afford to promote people, and to police its own, without losing offices. The bad part is that ambitious people aspiring to higher office become Republicans without really believing in the party’s ideas.
In 2017, when Scott Pruitt left the Oklahoma attorney generalship to head the EPA, Mike Hunter was appointed by then–Governor Mary Fallin to fill the job. Hunter was reelected in 2018, but only after beating Drummond in a primary runoff by 271 votes. Hunter resigned in 2021 amid a messy divorce and allegations of an extramarital affair on the job. Governor Kevin Stitt appointed O’Connor to take his place.
On the watch of Stitt and Hunter, the state lost a big Supreme Court case, McGirt v. Oklahoma, in which the Court declared that half of the state was under the jurisdiction of Native American tribes, throwing huge numbers of state criminal convictions into doubt. That’s just one of the reasons why there was pent-up frustration among Oklahoma voters at Stitt and at the state attorney general’s office. Indeed, some pundits and polls considered Stitt’s reelection in danger in 2022 (he trailed in six of the twelve public polls published after October 1, including the final two polls from SoonerPoll) — but the state’s Republican-leaning electorate and a good Republican environment ended up giving him a 14-point victory.
Unfortunately for O’Connor, he didn’t make it to the general election. Drummond, who comes from family wealth almost as old as his state (his extended family includes the popular lifestyle TV personality Ree Drummond, “The Pioneer Woman”), spent over $4.2 million of his own money in the 2018 and 2022 races. Over a million dollars in outside expenditures were dumped into ads against O’Connor, nearly two-thirds of the outside spending in the race’s final month, swamping controversial spending by Stitt that tried to prop him up. O’Connor had the endorsement of Stitt, pro-life groups, Second Amendment groups, and conservative groups. He also hit Drummond for a reported 2017 email calling support for Donald Trump “a non-starter,” a 2020 donation to Joe Biden that Drummond said had been made by his wife and refunded, and Bush-era donations by Drummond to Democratic House and Senate candidates in Oklahoma. Drummond, emphasizing his independence from Stitt and pledging a less confrontational legal stance with the tribes, had the endorsement of Oklahoma’s Fraternal Order of Police. He won the primary by less than two points.
Drummond’s Strange New Friends
Drummond had other ideas in the charter school fight, not only reversing course from O’Connor but actively litigating against his own state’s charter school board, which has continued to follow O’Connor’s legal guidance. Drummond won at the Oklahoma Supreme Court, which is not a very conservative court. The state follows the “Missouri plan” for judicial appointments, in which the governor’s choices for nominations are limited to those approved by gatekeepers in the state’s legal profession. The state court ruled, preposterously, that a private Catholic charter school had become a state actor by accepting taxpayer-funded vouchers.
Given who has filed amicus briefs in the charter school case, Drummond finds himself in some very strange company for a Republican attorney general. Those rallying to his side include a teachers’ union coalition including the National Education Association, the American Federation of Teachers, People For the American Way, the American Federation of State, County and Municipal Employees; the states of Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Washington, and the District of Columbia; American Atheists Inc.; and a bevy of liberal scholars, including one group whose brief was filed by Donald Verrilli, the former Obama solicitor general, and another that included Erwin Chemerinsky.
Among those lined up against him are Governor Stitt; the Trump administration; the states of Alabama, Arkansas, Louisiana, Montana, Nebraska, South Carolina, Texas, and Utah; Senators Ted Cruz, Josh Hawley, James Lankford, Ted Budd, and Kevin Cramer; O’Connor and Pruitt, as well as former Oklahoma Governor Frank Keating; the Manhattan Institute, the Buckeye Institute, and the Wisconsin Institute for Law and Liberty; the American Center for Law and Justice; the United States Conference of Catholic Bishops; National Religious Broadcasters, an association of Christian broadcasters; and an array of classical school groups, charter school groups, and Jewish groups.
Drummond has tried to cast his opposition to a Catholic charter school as a bulwark against taxpayer funding of more unpopular religious groups. In his statement on the Oklahoma Supreme Court’s ruling, he declared, “Now Oklahomans can be assured that our tax dollars will not fund the teachings of Sharia Law or even Satanism.” But government shouldn’t disfavor particular faiths for being weird or obscure, outside of the most extreme cases (e.g., teaching terrorism and the violent overthrow of the government) that would get your school closed by the state even if it was purely privately funded. Legalities aside, if your cultural argument is that we should be worried about the influence of radical Muslims and Satanists in our society, the best way to combat that is not to hyper-secularize our public spaces in a time of declining religious sentiment, but to give some breathing room for education in traditional Western faiths such as Christianity and Judaism to compete with the militantly secular public schools.
Drummond in Office
This isn’t the first time that Drummond has found himself in the liberal camp, even at the U.S. Supreme Court. In 2023, he delayed more than a dozen executions and appointed an independent investigation into the state’s long-running battle to execute Richard Glossip. Drummond ended up siding against his own state at the Supreme Court and urging that Glossip’s conviction be vacated, requiring the Court to appoint a representative of the victims’ families to argue on the side of upholding it. The Court, in a 5–3 decision written by Justice Sonia Sotomayor over dissents by Justices Clarence Thomas, Samuel Alito, and (in part) Amy Coney Barrett, granted Glossip a new trial.
True, the death penalty isn’t always a clean right-left issue; sometimes government lawyers have an obligation to seek justice when they believe that it has not been done. He broke with the governor by delaying enforcement of a new ban on transgender health care for minors while under an ACLU lawsuit, arguing that the law should await a court ruling. He invalidated new rules by the state schools superintendent over library books and transgenderism, contending that they were not authorized by enabling legislation. He dropped O’Connor’s lawsuit against a state Covid relief contractor, arguing that its waste of money was the fault of state officials, not the contractor. On the other hand, he has followed Stitt’s lead in suing to get federal family planning funding restored for the state after it was stripped due to Oklahoma’s strong abortion ban. Drummond has defended the ban in court while issuing guidance that set a high bar for prosecutions under the law and clarified (properly) that mothers cannot be prosecuted in Oklahoma for getting an abortion.
Drummond has pitched himself to the state press as an independent, nonpartisan figure. In a 2024 interview with the Oklahoman, which wrote that “Drummond emerged as a moderate voice,” Drummond acknowledged that “I think that a fair observer would comment that several of the positions that I’ve taken would injure me politically in the Republican Party.” The piece quoted him insisting that “the right thing is not always the Republican thing.” But even if some of his other fights with fellow Republicans could arguably be defended as stances for the law rather than on policy grounds, his position in the charter school case is indefensible for a Republican.
With Stitt term-limited, Drummond now has his sights set on the governorship. In what promises to be a crowded field, his money and his pitch to moderates could make him formidable. But the primary is closed to non-Republicans, and it uses a runoff system. As a result, sooner or later, Drummond will need to defend his record to conservative voters. He’ll have a lot of explaining to do.