Despite the threat of lawsuits, an Oklahoma educational board on Monday approved the nation’s first application for public tax dollars for a religiously affiliated virtual charter school.

The Statewide Virtual Charter School Board voted 3-2 to approve a revised application by St. Isidore of Seville Catholic Virtual School. The decision is certain to set up lawsuits that could go before the U.S. Supreme Court in a key test of the separation of church and state. At a minimum, the approval may run afoul of Oklahoma’s Blaine Amendment, which forbids state money for the direct or indirect benefit of any religion or religious institution.

The Catholic virtual charter school will be run by the Archdiocese of Oklahoma City and the Diocese of Tulsa. Pending approval of a contract with the state, it expects to be able to take students by the fall of 2024. The virtual school would teach religious tenets similar to those found in traditional private Catholic schools.

The 3-2 vote came after the board heard an update from school officials. Among those voting in favor was new board member Brian Bobek, an Oklahoma City businessman who previously served on the State Board of Education. Oklahoma House Speaker Charles McCall appointed Bobek on Friday. Bobek signed his oath of office just before the vote on the Catholic virtual charter school.

Bobek’s vote in favor came despite an appeal by board Chairman Robert Franklin at the start of the meeting that Bobek abstain. Bobek did not comment after the meeting. Franklin was joined by William Pearson in voting against the application. Board members Scott Strawn and Nellie Sanders voted to approve.

Brett Farley, executive director of the Catholic Conference of Oklahoma, said his group was excited by the vote. He said they’d be ready for any possible lawsuits.

“We think this is just an extension of what we’ve been doing in Oklahoma, which is providing more opportunities for education for kids that need it,” Farley said.

In an interview with reporters after the meeting, Franklin said he was disappointed in the vote and disheartened by the contention that the board was just playing a role in the inevitable next step at court. Apart from the discussion on the constitutionality of the application, Franklin said it continued to fall short on how the Catholic virtual school would help children who need special education.

“I’ve watched schools and I’ve watched families and I’ve watched teachers who sometimes have a difficult time meeting all of the needs that are presented. It’s a difficult, hard process,” Franklin said. “I just don’t think that they (the virtual school) felt that was going to be onerous.”

The approval came just two months after the Statewide Virtual Charter School Board unanimously rejected an earlier version of the school’s application. That rejection came amid threats of possible lawsuits, including an assertion by Oklahoma Attorney General Gentner Drummond that his office could not represent board members who went against their oath of office.

On Monday, June 5, Drummond again reiterated his position that the vote was unconstitutional.

“The approval of any publicly funded religious school is contrary to Oklahoma law and not in the best interest of taxpayers,” Drummond said in a statement. “It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the State to potential legal action that could be costly.”

Drummond’s position stands in contrast to his predecessor, John O’Connor, who he defeated in the Republican primary last year. O’Connor issued a nonbinding opinion in December saying the state was within its rights to approve a religiously affiliated charter school. He based that opinion on several recent U.S. Supreme Court rulings dealing with public money and religious education.

Oklahoma Gov. Kevin Stitt, meanwhile, applauded the board’s courage.

“This is a win for religious liberty and education freedom in our great state, and I am encouraged by these efforts to give parents more options when it comes to their child’s education,” Stitt said in a statement. “Oklahomans support religious liberty for all and support an increasingly innovative educational system that expands choice. Today, with the nation watching, our state showed that we will not stand for religious discrimination.”

Separately, Stitt on Monday signed Senate Bill 516, which would dissolve the Statewide Virtual Charter School Board and consolidate its functions into a new board with oversight of virtual and brick-and-mortar charter schools. That law takes effect July 1.

At the conclusion of Monday’s meeting, Franklin, the board chairman, said he would be resigning from the virtual board when the new law takes effect.