Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma

No. 24-394 Vide No. 24-396

In the Supreme Court of the United States

__________

OKLAHOMA STATEWIDE CHARTER SCHOOL BD., ET AL.,

v.

Petitioners,

GETNER DRUMMOND, ATTORNEY GENERAL FOR THE

STATE OF OKLAHOMA, EX REL. STATE OF OKLAHOMA,

Respondent.

__________

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

v.

Petitioner,

GETNER DRUMMOND, ATTORNEY GENERAL FOR THE

STATE OF OKLAHOMA, EX REL. STATE OF OKLAHOMA,

Respondent.

__________

On Petitions for Writs of Certiorari to the

Oklahoma Supreme Court

__________

BRIEF OF THE MANHATTAN INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONERS

__________

October 31, 2024

Ilya Shapiro

Counsel of Record

Tim Rosenberger

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

i

QUESTIONS PRESENTED

1. Whether the academic and pedagogical choices

of a privately owned and run school constitute state

action simply because it contracts with the state to offer a free educational option for interested students.

2. Whether a state violates the Free Exercise

Clause by excluding privately run religious schools

from the state’s charter school program solely because

the schools are religious, or whether a state can justify

such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause

requires.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT........................................................... 1

ARGUMENT ................................................................ 4

I. THE OKLAHOMA SUPREME COURT’S

MISGUIDED STATE-ACTION

ANALYSIS SWEEPS IN A LOT OF

PRIVATE CONDUCT ....................................... 4

A. Private entities regularly help states

fulfill important onligations ........................ 6

B. A vast array of private conduct

receives government funding. ..................... 9

C. Labeling private conduct “public” does

not transform it into state action. ............. 13

II. THE OKLAHOMA SUPREME COURT’S

RULING POSES SPECIAL THREATS

TO FAITH-BASED CHARITIES THAT

PROVIDE CRITICAL PUBLIC

SERVICES ...................................................... 14

III.THE OKLAHOMA SUPREME COURT’S

RULING UNDERMINES THIS COURT’S

RECENT JURISPRUDENCE ON THE

FREE EXERCISE CLAUSE ........................... 19

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Apao v. Bank of New York,

324 F. 3d 1091(9th Cir. 2003) ................................ 6

Bd. of Cnty. Comm’rs v. Umbehr,

518 U.S. 668 (1996) .............................................. 13

Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) ........... 14

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)............. 5

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288 (2001) ..................... 2,4

Carson v. Makin, 142 S. Ct. 1987 (2022) ........3, 13, 20

City of Detroit v. Murray Corp. of Am.,

355 U.S. 489 (1958) .............................................. 13

Drummond ex rel. State v. Okla. Statewide Virtual

Charter Sch. Bd., No. 121,694

2024 WL 3155937 (Okla., June 25, 2024) .......... 5, 8

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2261 (2020) .................................... 19–20

Flagg Bros. v. Brooks, 436 U.S. 149, 158 (1978) .... 6, 7

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .......................3, 4, 14, 15, 21

Gilmore v. Salt Lake Cmty. Action Program,

710 F.2d 632 (10th Cir. 1983) .............................. 12

Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952 (2022) ............................................ 14

Grogan v. Blooming Grove Volunteer Ambulance

Corps, 768 F.3d 259 (2d Cir. 2014) ...................... 12

iv

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) ...................................... 5, 6, 13

Lansing v. City of Memphis,

202 F.3d 821 (6th Cir. 2000) ................................ 12

Luria Bros. & Co., Inc. v. Allen,

672 F. 2d 347 (3d Cir. 1982) ................................... 6

Logiodice v. Trs. of Maine Cent. Inst.,

296 F.3d 22, 29 (1st Cir. 2002) ............................. 13

Mildfelt v. Circuit Court of Jackson County,

827 F.2d 343 (8th Cir.1987) ................................... 6

Musso v. Suriano, 586 F.2d 59 (7th Cir. 1978) ........ 12

NFIB v. Sebelius, 567 U.S. 519 (2012) ..................... 13

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020) ....................................... 3,14

Polk County v. Dodson, 454 U.S. 312 (1981) .......... 13

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ...........................1,4, 6, 7, 9–10

Robert S. v. Stetson Sch., Inc.,

256 F.3d 159 (3d Cir. 2001) .................................. 12

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ................................................ 7

Trinity Lutheran Church of Columbia v. Comer,

137 S. Ct. 2012 (2017) .......................................... 19

West v. Atkins, 487 U.S. 42, 55 (1988) ...................... 7

Statutory Provisions

Col. Rev. State § 26-5 (2023) ....................................... 9

Mass. Gen. Laws Ch. 23B, § 30 (2015) ....................... 8

v

Mont. Const. art II, § 3 ................................................ 9

Okla. Const. art. XIII, § 1 ............................................ 6

Okla. Stat. tit. 70, § 3-130 (1999) ................................ 5

Seattle, Wash., Ordinance 124509 (June 30, 2014) ... 8

Wy. Const. art. III, § 20 ............................................... 9

Washington, D.C., Code § 38-273.01 (2022) ............... 9

Other Authorities

Byron Johnson et al., Assessing the Faith-Based

Response to Homelessness in America: Findings

from Eleven Cities (2017) .................................... 16

Cong. Rsch Serv., Child Welfare: Purposes, Federal

Programs, and Funding (Oct. 7, 2022) ................ 12

Child Welfare Info. Gateway,

State Laws on Child Welfare .................................. 8

Dan Kosten, The President’s Budget Request for

Refugee and Asylum Services: Fiscal Year 2021,

Nat’l Immigr. F. (Mar. 3, 2020) ........................... 12

David L. Archer, Essay, Will Catholic Hospitals

Survive Without Government Reimbursements?,

84 Linacre Q. 23 (2017) ....................................... 17

Educ. Comm’n of the States, 50-State Review:

Constitutional Obligations for Public Education

(Mar. 2016) ............................................................ 8

Elizabeth Leonard, State Constitutionalism and

the Right to Health Care,

12 U. Pa. J. Const. L. 1325 (2010) ........................ 8

Emily Parker et al., How States Fund Pre-K:

A Primer for Policymakers 4 (2018) .............. 16, 17

vi

EWG’s Farm Subsidy Database ................................ 11

Emilie Kao, Religious Discrimination Makes

Children Pay the Price,

Heritage Found. (Nov. 16, 2020) ......................... 15

Ga. Dep’t of Early Care and Learning,

25 Year Anniversary ............................................. 9

Good Jobs First, Subsidy Tracker ....................... 10–11

History, Trinity Health .............................................. 18

HHS, Off. of Child Care,

Resources for Child Care Providers ..................... 12

HUD Renews Funding for Thousands of Local

Homeless Programs (Jan. 29, 2021) .................... 12

Jessica Eby et al., The Faith Community’s Role in

Refugee Resettlement in the United States,

24 J. Refugee Stud. 586 (2011) ............................ 19

Joseph Robert Fuchs, Patient Perspectives on

Religiously Affiliated Care in Rural and Urban

Colorado, 12 J. Primary Care & Cmty. Health

(Jan.–Dec. 2021) .................................................. 18

Mary Bryna Sanger, When the Private Sector

Competes: Providing Services to the Poor in the

Wake of Welfare Reform,

Brookings Inst. (Oct. 1, 2001) ................................ 9

Maryam Guiahi et al., Patient Views on Religious

Institutional Health Care,

JAMA Network Open 2 (Dec. 2019) .................... 18

Met Council, Virtual Listening Session on Food

Insecurity in Kosher- and Halal-Observant

Communities (2022) ............................................. 17

vii

Michael W. McConnell, Scalia and the Secret

History of School Choice, in Scalia’s Constitution

(Peterson & McConnell eds., 2018) ........................ 7

Multnomah Cnty. Dep’t of County Human Servs.,

Preschool for All...................................................... 8

Nat’l Ass’n of Cmty. Health Ctrs,

Federal Grant Funding ........................................ 12

Nat’l All. to End Homelessness, Faith-Based

Organizations: Fundamental Partners in

Ending Homelessness (2017) ............................... 16

Natalie Goodnow, The Role of Faith-Based

Agencies in Child Welfare,

Heritage Found. (May 22, 2018) .......................... 15

Our History, Bon Secours Mercy Health .................. 18

Natalie D. Riediger et al.,

A Descriptive Analysis of Food Pantries in

Twelve American States (2022) ............................ 17

R&P Affiliate Directory,

Refugee Processing Center ............................ 18–19

Role of Faith-Based Child Care,

Bipartisan Policy Center (May 2021) ................. 16

Stephanie J. Nawyn, Faithfully Providing Refuge:

The Role of Religious Organizations in Refugee

Assistance and Advocacy (April 2005) ................ 18

Suzann Morris & Linda K. Smith, Examining the

Role of Faith-Based Child Care,

Bipartisan Policy Center (May 2021) ................. 16

Tess Solomon et al., Bigger and Bigger:

The Growth of Catholic Health Systems,

Community Catalyst (2020) ................................. 18

viii

The Callahan Legacy: Callahan v. Carey and the

Legal Right to Shelter,

Coalition for the Homeless ..................................... 8

USDA, Fact Sheet: USDA Support for Food Banks

and the Emergency Food System ......................... 12

1

INTEREST OF AMICUS CURIAE1

The Manhattan Institute for Policy Research (“MI”)

is a nonpartisan public policy research foundation

whose mission is to develop and disseminate ideas that

foster greater economic choice and individual responsibility. To that end, it has historically sponsored

scholarship and filed briefs supporting constitutionally protected liberties and educational opportunities

and opposing governmental overreach.

This case interests amicus because MI works to

promote educational freedom, including in the context

of the fundamental right to religious liberty.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Oklahoma Supreme Court’s gross misapplication of state-action doctrine contradicts decades of

precedent and expands the doctrine beyond its breaking point. If not corrected, that analysis would also endanger many vital public services provided by religious charitable groups and undermine this Court’s recent free-exercise jurisprudence.

1. It is “fundamental” that the Constitution “applies to acts of the [government], not to acts of private

persons or entities.” Rendell-Baker v. Kohn, 457 U.S.

830, 837–38 (1982). Acts of a private entity may be

subject to constitutional constraint “if, though only if,

there is such a close nexus between the State and the

challenged action that [it] may be fairly treated as that

1 Rule 37 statement: No party’s counsel authored any part of

this brief; no person other than amicus or its members made a

monetary contribution to fund its preparation or submission. All

parties received timely notice of amicus’s intent to file this brief.

2

of the State itself.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quotation omitted). State-action analysis thus asks: Who

is “responsible for the specific conduct of which the

plaintiff complains”? Id.

The answer here is simple: the state had no role in

designing or administering the charter school program

challenged here, and, thus, the program was not the

result of “state action.” But the Oklahoma Supreme

Court held the opposite. In doing so, that court ignored

the central question and, instead, focused on artificial

indicia of state action. Such artificial indicia included

that the school generally helps the state fulfill an important obligation, that the school is supported by

state funding, and that the school has been given the

label “public.”

These factors have no place in state-action analysis, and they have been rejected by this Court and most

circuit courts that have considered the issue. Worse,

the decision below knows few bounds. If left to stand,

the opinion would sweep well beyond this case and

would designate as “state action” an array of quintessentially private conduct. Governments partner with

nearly countless private groups to serve important

public goals—often with the state’s extensive financial

support. But that does not turn private charities into

arms of the state. Nor is the problem alleviated by inviting states to pick and choose how constitutional doctrine applies by attaching the label “public” to private

groups when it wishes.

2. The Oklahoma Supreme Court’s capacious stateaction analysis creates especially grave consequences

for the many religious organizations that partner with

3

the government to serve the public. For a religious entity, a state-actor designation poses an existential

threat. Because the government must exercise its authority in a way that is religiously neutral, declaring

the programs of a religious group to be “state action”

forces that group to choose between secularizing those

programs or ceasing to participate in state initiatives

that support and fund them. In many cases, that

means either denying the religious identity of their

charitable programs or ending them. Many faith-based

organizations will choose the latter, rather than attempt to divorce their beliefs—“the very reason for

[their] existence”—from the ways in which they serve.

Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140

S. Ct. 2049, 2055 (2020). That would be devastating—

both for the groups that close and for the public. Communities across the country depend on a multitude of

faith-based groups to provide vital services related to

child welfare, healthcare, shelter, and much more. If

religious organizations are required to retreat from

public service, these resources will be lost to those who

need them most.

3. Finally, the decision below is also at odds with

this Court’s recent decisions. The Court has repeatedly

made clear that the Free Exercise Clause forbids the

government from “exclud[ing] some members of the

community” from a public benefit program because of

“their anticipated religious use of the benefits.” Carson

v. Makin, 142 S. Ct. 1987, 1998, 2002 (2022). Nor may

“the government . . . discriminate against religion

when acting in its managerial role” or overseeing a

government contractor. Fulton v. City of Philadelphia,

141 S. Ct. 1868, 1878 (2021).

4

But the Oklahoma Supreme Court’s expansive

state-action analysis reopens the door to such discrimination. Any state could exclude religious groups from

a program that subsidizes private activity by simply

designing a model contract so that it bears the same

superficial signs of state action that the court found

relevant here. And because those signs do not require

states actually to exert any control over the entity in

question, a state that is hostile to religious organizations need not assume any greater management of its

public-benefit programs to do so.

This Court has gone to great lengths to ensure that

governments do not force religious believers to either

“[g]ive up [their] sincerely held religious beliefs or give

up serving” their communities or participating in public life. Fulton, 141 S. Ct. at 1930 (Gorsuch, J., concurring). The Court should grant certiorari to ensure that

states may not do indirectly what the Constitution prevents them from doing explicitly.

ARGUMENT

I. THE OKLAHOMA SUPREME COURT’S

MISGUIDED STATE-ACTION ANALYSIS

SWEEPS IN A LOT OF PRIVATE CONDUCT

It is “fundamental” that the Constitution generally

“applies to acts of the [government], not to acts of private persons.” Rendell-Baker, 457 U.S. at 837–38. As

this Court has explained, “state action [by a private

entity] may be found if, though only if, there is such a

close nexus between the State and the challenged action that seemingly private behavior may be fairly

treated as that of the State itself.” Brentwood Acad.,

531 U.S. at 296 (quotation omitted). The government

must be “responsible for the specific conduct of which

5

the plaintiff complains.” Id. (quotation omitted). Normally, this means that the state “has exercised coercive power or provided such significant encouragement

. . . that the choice must in law be deemed to be that of

the State.” Blum v. Yaretsky, 457 U.S. 991, 1004

(1982). Or, if such direct control cannot be shown, the

Court has sometimes found state action where a private entity exercises powers that are “traditionally exclusively reserved to the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).

The Oklahoma Supreme Court ignored these bedrocks of state-action analysis to focus instead on circumstances that say little about whether the challenged conduct is actually the state’s. Here, Oklahoma

did not direct, coerce, or influence St. Isidore’s educational programming. Indeed, the state’s charter-school

system is explicitly designed to expand educational

choice by providing “additional academic choices,” and

the State does not design or approve school budgeting

decisions, curriculum, or operating policies and procedures. Okla. Stat. tit. 70, § 3-130 (1999). Also, educating children is hardly the exclusive domain of the government. Yet the Oklahoma Supreme Court found

that the school was nonetheless a state actor because:

(1) it is the state’s exclusive “public function” to provide free education; (2) St. Isidore would receive direct

state funding; (3) St. Isidore would receive state “sponsorship”; and (4) the State’s charter school program labels such schools “public.” See generally Drummond ex

rel. State v. Okla. Statewide Virtual Charter Sch. Bd.,

No. 121,694 2024 WL 3155937 (Okla., June 25, 2024)

(unreported decision).

These factors have no place in state-action analysis. Indeed, this Court and federal circuits across the

6

country have rejected similar factors in other cases.

See, e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 158

(1978) (state delegation of the sale of repossessed

goods does not turn private conduct into state action);

Rendell-Baker, 457 U.S. at 840–41 (school's receipt of

public funds does not transform its discharge decisions

into state actions); Jackson, 419 U.S. at 353-54; Luria

Bros. & Co., Inc. v. Allen, 672 F. 2d 347 (3rd Cir. 1982)

(where no exclusive state function is delegated, there

is an absence of state action); Apao v. Bank of New

York, 324 F. 3d 1091(9th Cir. 2003) (state regulation of

the mortgage industry does not convert acts of individual lenders into state action); Mildfelt v. Circuit Court

of Jackson County, 827 F.2d 343, 346 (8th Cir.1987)

(no state action where power of sale was conferred by

contract and merely recognized by statute). The Oklahoma Supreme Court’s analysis knows few bounds. It

sweeps in far more than charter schools and threatens

to designate as “public” a vast array of quintessentially

private conduct.

A. Private entities regularly help states fulfill important obligations.

The Oklahoma Supreme Court grounded its stateaction analysis in an observation that is entirely beside the point: that the Oklahoma Constitution places

an affirmative duty on the state to provide free public

education. Okla. Const. art. XIII, § 1; Drummond ex

rel. State at ¶ 26, ¶ 30. The simple fact that the state

has an obligation to ensure access to education says

nothing about whether the state is responsible for the

policies and operations of any particular school. Indeed, here the state surely is not.

7

The Oklahoma Supreme Court seems to have confused the situation in which a state is obliged to provide some service generally with the question of

whether that service is exclusively the prerogative of

the State. See Rendell-Baker, 457 U.S. at 842 (“legislative policy choice in no way makes these services the

exclusive province of the State”). To be sure, the state’s

delegation of a function that is solely the government’s

to perform can signal state action. See, e.g., West v. Atkins, 487 U.S. 42, 55 (1988) (doctor hired to provide

constitutionally required medical care to state prisoners); Flagg Bros., 436 U.S. at 158 (discussing administration of elections). But the appropriate question is

not whether a private actor performs a service that is

“aimed at a proper public objective” or that “confer[s]

a public benefit”—it is whether that service “was exclusively and traditionally public.” Brentwood, 531

U.S. at 302–03. And “very few [functions] have been

exclusively reserved” to the government. Flagg Bros.,

436 U.S. at 158 (quotation omitted).

Although the Oklahoma Constitution makes clear

that education is important to the state, educating

children is far from the exclusive domain of the government.2 Thus, when a state partners with private organizations to expand educational options, the state is

2 This point is laid bare by the many thousands of private K12 schools that have operated across the country for centuries.

Indeed, well into the nineteenth century, “American education

was almost without exception under private sponsorship and supervision.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,

238 n.7 (1963) (Brennan, J., concurring); see also Michael W.

McConnell, Scalia and the Secret History of School Choice, in

Scalia’s Constitution 72–73 (Peterson & McConnell eds., 2018)

(discussing the history of education in America).

8

not delegating power over an area of exclusive state

control. The fact that a privately run school—which no

children are compelled to attend—helps accomplish

the state’s goals does not mean its actions should be

treated as the state’s.

The Oklahoma Supreme Court’s transformation of

a general state duty into an exclusive state prerogative

would sweep well beyond this case. Governments bear

legal obligations to provide a tremendous variety of

services for their citizens. Every state constitution includes an educational provision similar to Oklahoma’s.

See Educ. Comm’n of the States, 50-State Review: Constitutional Obligations for Public Education (Mar.

2016), https://bit.ly/3rYVHIN. At least a dozen include

a duty to provide healthcare. See Elizabeth Leonard,

State Constitutionalism and the Right to Health Care,

12 U. Pa. J. Const. L. 1325, 1402–06 (2010) (14 state

constitutions list healthcare as a right or a “public concern”). States and cities bear obligations to provide

shelter,3 foster care,4 universal pre-K,5 or even a “clean

The state supreme court sidestepped this point by concluding

that operating “free public schools” is an exclusively public function. Drummond, 2024 WL 3155937 at *7. But that begs the question; the entire inquiry is designed to assess whether St. Isidore

meaningfully operates as a “public school” in the first place.

3 See, e.g., Mass. Gen. Laws Ch. 23B, § 30 (2015); The Callahan Legacy: Callahan v. Carey and the Legal Right to Shelter,

Coalition for the Homeless, https://bit.ly/3UrrP4P (last visited

Oct. 16, 2024) (discussing New York right to shelter).

4 See generally Child Welfare Info. Gateway, State Laws on

Child Welfare, https://bit.ly/3SUllKA (last visited Oct. 16, 2024).

5 See, e.g., Seattle, Wash., Ordinance 124509 (June 30, 2014);

Washington, D.C., Code § 38-273.01 (2022) (“Expansion to Universal Pre-K”); Multnomah Cnty. Dep’t of County Human Servs.,

Preschool for All, https://bit.ly/3g8Hx4W (last visited Oct. 16,

9

and healthful environment.”6 The state of Wyoming

has the even broader obligation to protect the “health

and morality of the people.” Wy. Const. art. III, § 20.

Countless private organizations provide services

toward these important ends—often with the state’s

encouragement and financial support. See, e.g., Mary

Bryna Sanger, When the Private Sector Competes:

Providing Services to the Poor in the Wake of Welfare

Reform, Brookings Institution (Oct. 1, 2001),

https://brook.gs/3MjHeQR (discussing shift toward

“private firms and nonprofit agencies . . . delivering

more and more of the nation’s public services, especially in programs designed to help families and children living in poverty”). Indeed, a vast network of private hospitals, clinics, daycares, homeless shelters,

halfway houses, foster care agencies, environmental

groups, and many other organizations partner with

governments to serve critical public goals and further

states’ affirmative obligations. But that does not transform these many groups into arms of the government.

B. A vast array of private conduct receives

government funding.

The Oklahoma Supreme Court’s observation that

St. Isidore receives direct public funding is equally unremarkable and should receive equally little attention

in state-action analysis. This Court long ago determined that whether the government funds an action

says little about whether that action is the state’s.

Rendell-Baker, 457 U.S. at 840-41. Indeed, in RendellBaker, the Court held that “dependen[ce] on the State

2024); Ga. Dep’t of Early Care and Learning, 25 Year Anniversary, https://bit.ly/3SUg2dF; Col. Rev. State § 26-5 (2023).

6 Mont. Const. art II, § 3.

10

for funds” does not demonstrate state action and concluded that even a school which received 99% of its

funding from the state was not a public actor. 457 U.S.

at 840–41, 843. The unmistakable lesson here is that

state funding—even significant state funding—carries

little weight in state-action analysis.

And for good reason. Focusing on state funding is

not only wrong under Rendell-Baker, but it makes no

sense in light of the way governments spend their

money. Governments subsidize numerous aspects of

private enterprise today. Indeed, governments lack

the capacity to perform every function that furthers

the public interest. Therefore, a state may reasonably

conclude that private organizations are better situated

to do so in many areas. Accordingly, governments regularly fund entities that never have been—and never

should be—considered state actors.

Consider, for example, the vast sums of public

money that facilitate private, for-profit industry, including funding given to: oil and gas companies like

Valero Energy and Phillips 66;7 financial services providers like JPMorgan Chase, Wells Fargo, and PNC;8

automotive manufacturers like Ford, General Motors,

7 Good Jobs First’s Subsidy Tracker tracks public subsidies

received by private industry from 2000 until the present. For example, Valero Energy received $1.05 billion, and Phillips 66 received $5.3 million in state, local, and federal subsidies. See Good

Jobs First, Subsidy Tracker, https://tinyurl.com/ku5zt7uy (accessed Oct. 19, 2024); https://tinyurl.com/28ym2z3a (accessed

Oct. 19, 2024).

8 The federal government awarded the following in loans/loan

guarantees, and bailouts: JPMorgan Chase received $1.3 trillion,

Wells Fargo received $3.4 trillion, and PNC received $51 billion.

See id.

11

and Volvo;9 retailers like Amazon, Walmart, and

Macy’s;10 healthcare providers like Centene and Mayo

Clinic;11 information technology companies like IBM,

Google, and Facebook;12 airlines like United and

American;13 agribusinesses like Archer Daniels Midland, Deere, Cargill, and countless individual farmers

and ranchers;14 and nearly every other imaginable

area of commerce.

Governments also provide substantial and critical

funding to non-profit groups that help perform important public services. Governments supply needed

Ford received $1,325,230,761, General Motors received

$169,881,943, and Volvo received $87,469,425. See id.

9

10 Amazon.com received $22,880,000 from various states,

Walmart received 3,000,000 from Kentucky, and Macy’s received

$1,855,000 from Ohio. See id.

11 Centene received $450,000,000 from North Carolina, and

Mayo Clinic received $2,110,431 the federal government. See id

12 IBM received $49,276,525, Google received $54,335,376,

and Facebook received an undisclosed amount from the State of

Oregon. See id.

13 United Airlines received $32,267,444, and American Air-

lines received $25,855,237. See id.

14 In 2021, Archer Daniels Midland received $417,705,586. In

2020, Deere received $12,821,163 from Iowa, and Cargill received

$11,660,318. See id.; see also EWG, EWG’s Farm Subsidy Database, https://bit.ly/3fFNtCn (last visited Oct. 16, 2024).

12

funding to groups like homeless shelters,15 refugee assistance organizations,16 childcare providers,17 medical facilities,18 foster-care agencies,19 food pantries,20

and many other social welfare organizations.

In short, governments heavily subsidize all manner

of private activity, and the fact of such funding is neither remarkable nor entitled to any weight in stateaction analysis. Most courts of appeals have come to

this same conclusion.21 The law in Oklahoma should

be brought into line, as well.

15 See HUD, HUD Renews Funding for Thousands of Local

Homeless Programs (Jan. 29, 2021), https://bit.ly/3TdMN5O.

16 See Dan Kosten, The President’s Budget Request for Refugee

and Asylum Services: Fiscal Year (FY) 2021, Nat’l Immigr. F.

(Mar. 3, 2020), https://bit.ly/3EtHVoZ.

17 See HHS, Off. of Child Care, Resources for Child Care Pro-

viders, (updated May 19, 2022), https://bit.ly/3MmgfUO; HHS,

Off. of Child Care, Federal and State Funding for Child Care and

Early Learning, (Dec. 2014), https://bit.ly/3EuUpg9.

18 See Nat’l Ass’n of Cmty. Health Ctrs, Federal Grant Funding, https://bit.ly/3TawTcj (last visited Oct. 16, 2024).

19 See Cong. Rsch Serv., Child Welfare: Purposes, Federal Pro-

grams, and Funding (Oct. 7, 2022).

20 See USDA, Fact Sheet: USDA Support for Food Banks and

the Emergency Food System, https://bit.ly/3eoLq5y (last visited

Oct. 16, 2024).

21 See, e.g., Logiodice v. Trs. of Maine Cent. Inst., 296 F.3d 22,

29 (1st Cir. 2002); Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 268–69 (2d Cir. 2014); Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 166 (3d Cir. 2001) (Alito, J.); Lansing

v. City of Memphis, 202 F.3d 821, 830 (6th Cir. 2000); Musso v.

Suriano, 586 F.2d 59, 61 n.4 (7th Cir. 1978); Gilmore v. Salt Lake

Cmty. Action Program, 710 F.2d 632, 637 (10th Cir. 1983).

13

C. Labeling private conduct “public” does

not transform it into state action.

Finally, the Oklahoma Supreme Court’s observation that St. Isidore was nominally a “public” school

does nothing to rectify or constrain its analysis.

Just two years ago, this Court reiterated that the

substance of constitutional law does not turn “on the

presence or absence of magical words.” Carson, 142 S.

Ct. at 2000. Indeed, the Court has rejected the importance of labels in a variety of constitutional areas.

See, e.g., NFIB v. Sebelius, 567 U.S. 519, 564 (2012)

(statutory label “penalty” does not “determine whether

the payment may be viewed as an exercise of Congress’s taxing power”); Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 679 (1996) (observing that constitutional claims do not depend on “state law labels” and

collecting cases); City of Detroit v. Murray Corp. of

Am., 355 U.S. 489, 492 (1958) (“[I]n determining . . .

constitutional immunity we must look . . . behind labels to substance.”). And the Court has specifically rejected the notion that the label “public” should control

whether an entity performs state action. See Jackson,

419 U.S. at 353–54 (public utility); Polk County v. Dodson, 454 U.S. 312 (1981) (public defender).

As this Court has cautioned, deference to such labels would be ripe for abuse, as it would allow a state

to simply pick and choose how constitutional doctrines

apply based on the names it attaches to its actions. See

Carson, 142 S. Ct. at 2000; Umbehr, 518 U.S. at 679.

The Court must again make clear that critical constitutional underpinnings—such as the requirement of

state-action for constitutional torts—cannot be so easily manipulated.

14

II. THE OKLAHOMA SUPREME COURT’S

RULING POSES SPECIAL THREATS TO

FAITH-BASED CHARITIES THAT PROVIDE

CRITICAL PUBLIC SERVICES

The Oklahoma Supreme Court’s expansive stateaction analysis presents especially grave consequences

for the many thousands of religious organizations that

serve the public. For a religious entity, a state-actor

designation does not simply open up new possibilities

for tort liability; it poses an existential threat. The government, this Court has held, must exercise its “civil

power . . . in a manner neutral to religion.” Bd. of Educ.

v. Grumet, 512 U.S. 687, 704 (1994). Thus, declaring

the programs of a religious organization to be “state

action” forces it to choose between stripping those programs of their religious character or ceasing to participate in state initiatives that support and fund them.

In many cases, that will mean choosing between denying the religious identity of their charitable programs

or ending them. See, e.g., Fulton, 141 S. Ct. at 1876.

But this is really no choice at all. For many faithbased social-service groups, their religious convictions

are “the very reason for [their] existence.” Our Lady of

Guadalupe, 140 S. Ct. at 2055. Many such organizations therefore cannot divorce their religious beliefs

from the ways in which they serve. See id.; see also,

e.g., Fulton 141 S. Ct. at 1884–85 (Alito, J., concurring)

(discussing religious missions to care for orphaned and

abandoned children); Gordon Coll. v. DeWeese-Boyd,

142 S. Ct. 952, 954 (2022) (Alito, J., concurring in denial of cert.) (discussing integration of religion into education at some religious colleges). If religious organizations like these are stripped of that core reason for

their work, many might cease to perform it.

15

The consequences of the Oklahoma Supreme

Court’s misguided state-action analysis for faith-based

social service providers are therefore immense. And

they are for the general public, as well. If religious organizations are required to retreat from public service,

critical resources will be lost in places and for people

who depend on their partnership in public-service programs. These, to name only a few, include:

Adoption and Foster Care Agencies: Since the

20th century, “an influx of federal money spurred

states and local governments to take a more active

role” in funding or licensing the centuries-old work of

private organizations who care for children in need of

homes. Fulton, 141 S. Ct. at 1885 (Alito, J., concurring). States regularly rely on religious organizations

in particular to perform this critical work. See id. (discussing long history of “care of orphaned and abandoned children” by religious organizations). According

to one count, there are more than 8,000 faith-based

foster care and adoption agencies in the United

States,22 which in some states are responsible for facilitating more than 25 percent of foster care adoptions.23

Childcare and Early Learning Centers: Faithbased organizations also serve families by caring for

and educating young children. Indeed, one recent poll

found that, of the 31 percent of working-parent households who depend on center-based childcare, more

than half send their children to one that is affiliated

22 Emilie Kao, Religious Discrimination Makes Children Pay

the

Price,

Heritage

Found.

(Nov.

16,

2020),

https://herit.ag/3rImZ5Q.

Natalie Goodnow, The Role of Faith-Based Agencies in

Child

Welfare,

Heritage

Found.

(May

22,

2018),

https://herit.ag/3RKcPwg.

23

16

with a faith-based organization.24 Many states specifically fund and rely on these providers to serve at-risk

or underprivileged children.25 And across the country,

states are increasingly partnering with private and religiously affiliated schools to establish a universal preK network that will provide all children with access to

early learning resources.26

Emergency Shelters: Faith-based organizations

also “serve as the backbone of the emergency shelter

system in this country.”27 Faith-based groups are estimated to operate between 30 and 60 percent of emergency shelter beds in the United States—what one report describes as the “safety net of all safety nets for

the homeless.”28 In some cities, like Omaha, Nebraska,

faith-based groups provide as many as 90 percent of

beds.29 As in other areas of service, the government

provides millions of dollars in funding to support these

organizations—which ultimately results, according to

one study, in an estimated $9.42 in taxpayer savings

for every dollar of government spending.30

24 Suzann Morris & Linda K. Smith, Examining the Role of

Faith-Based Child Care, Bipartisan Policy Center 3 (May 2021).

25 See id.; Emily Parker et al., How States Fund Pre-K: A Pri-

mer for Policymakers 4 (2018); see also Goodnow, supra n.23.

26 See generally Parker, supra n.25.

Nat’l All. to End Homelessness, Faith-Based Organizations: Fundamental Partners in Ending Homelessness 1 (2017).

27

28 Byron Johnson et al., Assessing the Faith-Based Response

to Homelessness in America: Findings from Eleven Cities 20

(2017) (estimating nearly 60%); see also Nat’l All. to End Homelessness, supra n.27, at 1 (estimating 30%).

29 Johnson, supra n.28, at 20.

30 Johnson, supra n.28, at 25.

17

Food Pantries: Governments regularly subsidize

and rely on private organizations—and especially religious organizations—to provide food to those in need.

Indeed, a recent study of food pantries across twelve

states found that nearly two-thirds of them are operated by faith-based organizations, a number that the

authors cautioned might be an underestimate.31 The

study further found that “volunteerism in food banks

and pantries is often motivated by faith and has an

important role in building community.”32 And faithbased food pantries may be particularly important for

food security in religious communities that must observe strict dietary guidelines, such as those pantries

that provide kosher or halal certified meals.33

Healthcare Providers: Governments at all levels

rely overwhelmingly on the work of private medical facilities to provide much-needed access to healthcare.

According to one recent report, the average U.S. hospital receives nearly half of its funding from the government.34 And a significant portion of those facilities

is faith-based. Nearly one in five hospitals in the

United States is religiously affiliated, and in many rural states or in geographically isolated communities,

the reliance on religious healthcare providers is even

31 Natalie D. Riediger et al., A Descriptive Analysis of Food

Pantries in Twelve American States 6-8 (2022).

32 Id. at 7.

See generally Met Council, Virtual Listening Session on

Food Insecurity in Kosher- and Halal-Observant Communities

(2022), https://bit.ly/3CpzOqL.

33

34 See David L. Archer, Essay, Will Catholic Hospitals Survive

Without Government Reimbursements?, 84 Linacre Q. 23 (2017).

18

greater.35 Indeed, because they view their service as a

religious ministry rather than a profit-seeking venture, religious doctors and healthcare organizations

are often motivated to serve in areas where for-profit

facilities find little financial incentive.36

Refugee Assistance Organizations: The State

Department relies on and provides significant funding

to support private organizations that serve and help

resettle new refugees in the country, including by

providing housing, food, clothing, medical services,

training in English or job skills, and connections with

refugees or others in the local community. Religious

communities have, for centuries, led this vital cause to

welcome and support refugees, and today the majority

of these organizations are religiously affiliated.37 According to one report, faith-based organizations have

35 Maryam Guiahi et al., Patient Views on Religious Institutional Health Care, JAMA Network Open 2 (Dec. 2019). In five

states (each with large rural populations) more than 40% of acute

care hospital beds are religiously affiliated and in another five

states, more than 30% are. See Joseph Robert Fuchs, Patient Perspectives on Religiously Affiliated Care in Rural and Urban Colorado, 12 J. Primary Care & Cmty. Health (Jan.–Dec. 2021). Further, the Centers for Medicare and Medicaid Services has identified 52 Catholic hospitals as the “sole community hospital” for

their regions. Tess Solomon et al., Bigger and Bigger: The Growth

of Catholic Health Systems, Community Catalyst 16 (2020).

36 See, e.g., History, Trinity Health, https://bit.ly/3EHmMb2

(last visited Oct. 16, 2024) (describing Catholic health system’s

historical commitment to serving poor and disadvantaged communities); Our History, Bon Secours Mercy Health,

https://bit.ly/3RZNn5V (last visited Oct. 16, 2024) (same).

37 See Stephanie J. Nawyn, Faithfully Providing Refuge: The

Role of Religious Organizations in Refugee Assistance and Advocacy (April 2005), https://bit.ly/3exnP2o; R&P Affiliate Directory,

19

been instrumental in resettling 70% of all refugees arriving in the United States today, including individuals from all geographic, ethnic, and religious backgrounds.38

Governments at all levels—and people in all communities—depend on the charitable work of these and

many other faith-based organizations. It is not simply

religious believers who would suffer if such groups

were driven away from public service. This Court

should ensure that the Oklahoma court’s unbound

state-action analysis does not compel such a retreat.

III. THE OKLAHOMA SUPREME COURT’S

RULING UNDERMINES THIS COURT’S

RECENT JURISPRUDENCE ON THE FREE

EXERCISE CLAUSE

Finally, the Oklahoma Supreme Court’s decision

not only conflicts with settled state-action doctrine but

it is also at odds with this Court’s recent decisions interpreting the Free Exercise Clause.

In recent years, the Court has made clear that the

Free Exercise Clause forbids the government from requiring religious entities to “choose between their religious beliefs and receiving a government benefit.”

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2023 (2017) (quotation omitted). Once

a state elects to fund private activity, “it cannot disqualify some [organizations] solely because they are

religious.” Espinoza v. Montana Dep’t of Revenue, 140

Refugee Processing Center, https://bit.ly/3EhWtHZ (last visited

Oct. 16, 2024).

38 See Jessica Eby et al., The Faith Community’s Role in Refugee Resettlement in the United States, 24 J. Refugee Stud. 586

(2011).

20

S. Ct. 2246, 2261 (2020). In short, a state cannot “exclude some members of the community” from a public

benefit program “because of their religious exercise” or

because of “their anticipated religious use of the benefits.” Carson, 142 S. Ct. at 1998, 2002.

Nor may the government discriminate against organizations that contract to perform important public

services merely because they are religious. Just three

years ago, the Court unanimously rejected the argument that “the government may discriminate against

religion when acting in its managerial role.” Fulton,

141 S. Ct. at 1878. It made clear that the government

has no more ability to discriminate on the basis of religious exercise when overseeing a contractor than

when distributing government benefits. Id.

But the Oklahoma Supreme Court’s expansive

state-action analysis reopens the door to exactly that

kind of discrimination. As described above, many programs through which states partner with private

groups may already require secularization under the

Oklahoma court’s theory—whether the state wishes to

do so or not. And, certainly, any state that did wish to

exclude religious organizations from a program that

subsidizes private activity could do so by simply designing the program so that it bears the same superficial signs of state action that the Oklahoma court

found relevant here. Because those signs do not require the state to exert any control over the entity in

question, a state that is hostile to religious organizations need not assume any greater management of its

public-benefit programs to engage in discrimination.

In recent years, this Court has gone to great

lengths to ensure that governments do not force religious believers to either “give up [their] sincerely held

21

religious beliefs or give up serving” their communities

or participating in public life. Fulton, 141 S. Ct. at

1930 (Gorsuch, J., concurring in the judgment). It

should grant certiorari here to ensure that states do

not now do indirectly what the Constitution prevents

them from doing explicitly.

CONCLUSION

For the foregoing reasons, and those stated in the

petition, the Court should grant certiorari and reverse.

Respectfully submitted,

Ilya Shapiro

Counsel of Record

Tim Rosenberger

MANHATTAN INSTITUTE

52 Vanderbilt Ave.

New York, NY 10017

(212) 599-7000

ishapiro@manhattan.institute

October 31, 2024