OKPOLICY.ORG
One of the interesting things about living in these times is the re-litigation of matters long thought to be settled. Who would have thought that public school teachers could be required by the state to teach from Bibles that were purchased and delivered to schools with state tax dollars?
But a lawsuit by more than 30 public school parents, their minor children, teachers, and clergy has been filed challenging a memorandum from State Superintendent Ryan Walters to Oklahoma school superintendents mandating that “all Oklahoma schools are required to incorporate the Bible, which includes the Ten Commandments, as an instructional support into the curriculum across specified grade levels, e.g., grades 5 through 12.”
The memorandum was followed by “Oklahoma State Department of Education Instructional Support Guidelines for Teachers” that requires “the memorandum and the included standards must be provided to every teacher as well as providing a physical copy of the Bible, the United States constitution, the Declaration of Independence, and the Ten Commandments as resources in every classroom in the school district.”
The lawsuit alleges the “mandate interferes with the parents’ ability to direct the religious and moral upbringing of their children. The children themselves face coercive instruction on religion in their public schools that is contrary to their own beliefs. The teachers must present to their students religious doctrines to which the teachers and many students do not subscribe, or face losing their teaching licenses. And the spending of state funds to purchase Bibles diverts the tax payments of all the adult petitioners from proper uses to the support of a single religious tradition.”
One might assume such a mandate is patently unconstitutional. Article II, Section 5 of the Oklahoma Constitution, adopted in 1907, provides that “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” But the last few years have produced both pushbacks and creative avoidance of the constitutional provision.
The legislature in 2016 submitted State Question 790 to a vote of the people to repeal Article II, Section 5, but the effort failed by a vote of 57.1 percent to 42.9 percent. The state question was placed on the ballot by the legislature in response to the state Supreme Court’s 2015 ruling that a Ten Commandments monument at the state Capitol violated the Article II Section 5 prohibition of using state property for religious purposes.
However, in another 2016 case, the Oklahoma Supreme Court weakened Article II Section 5 by upholding the “Lindsey Nicole Henry Scholarships” that use public money to provide scholarships for students with disabilities to attend private schools, including religious schools. The court found that because scholarship money is distributed to parents who then make an independent decision on which school to use it for, this program does not violate Article II, Section 5.
But the lawsuit filed against Walters, the State Board of Education, and others doesn’t rely totally on the state Constitution. It alleges that Walters and the board failed to comply with the Oklahoma Administrative Procedures Act (OAPA), which requires detailed procedures to be followed to issue a rule, including notice and a comment period. Walters made no effort to follow these procedures.
In addition, the lawsuit alleges the mandate violates the OAPA because it is substantively unlawful. Under 70 O.S. ยง 11-103.6a(F), individual school districts have the authority to select the instructional materials that they will use. The planned $3 million in spending on Bibles would unlawfully support the invalid rule because the authority of Walters, the State Department of Education, and the State Board of Education is limited to providing state funds to individual school districts that the districts can then spend on texts of their own choice.
And finally, the lawsuit alleges the religious freedom provisions of Oklahoma’s Constitution – specifically Article II Section 5 and Article I Section 2 – prohibit spending state funds on the Bibles because they are religious items, and the spending would support one particular religious tradition.
The parents, children, teachers, and clergy who filed the lawsuit have asked the Supreme Court to assume original jurisdiction and rule in the case. With the effort by some to malign the current Supreme Court justices who are on the ballot, I’d be surprised to see anything happen before the election.
