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

No. 24-394

IN THE

Supreme Court of the United States

OKLAHOMA STATEWIDE

CHARTER SCHOOL BOARD, et al.,

Petitioners,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL

OF OKLAHOMA, ex rel. OKLAHOMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OKLAHOMA

BRIEF OF OKLAHOMA GOVERNOR

J. KEVIN STITT AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

TREVOR S. PEMBERTON

Counsel of Record

Special Counsel

AUDREY A. WEAVER

Deputy General Counsel

OFFICE OF OKLAHOMA GOVERNOR

J. KEVIN STITT

2300 North Lincoln Boulevard,

Suite 212

Oklahoma City, OK 73105

(405) 521-2342

trevor.pemberton@gov.ok.gov

Counsel for Amicus Curiae

120106

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

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

INTERESTS OF AMICUS . . . . . . . . . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

I.

EXCLUDING RELIGIOUS ENTITIES FROM SCHOOL

CHARTERS UNDERMINES THE STATE’S INTERESTS

IN EDUCATION AND PARENTAL CHOICE . . . . . . . . . . . .5

II. THE OKLAHOMA SUPREME COURT’S EXCLUSION

OF ST. ISIDORE FROM THE PUBLIC BENEFIT OF A

SCHOOL CHARTER VIOLATES THE FREE EXERCISE

C LAUSE A ND CA NNOT W ITHSTA ND STRICT

SCRUTINY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

A. Strict scrutiny applies to the Oklahoma

Supreme Court’s exclusion of St.

Isidore from the generally available

benefit of a school charter solely

because of its religious character . . . . . . . .11

B. State law cannot harbor the Oklahoma

Supreme Court’s infringement of

free exercise of religion . . . . . . . . . . . . . . . .12

ii

Table of Contents

Page

C. The Ok lahoma Supreme Cour t’s

relig ious discr imination against

St. Isidore is not justified by the

Establishment Clause. . . . . . . . . . . . . . . . . .15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Bd. of Ed. for Indep. Sch. Dist. No. 52 v. Antone,

1963 OK 165, 384 P.2d 911. . . . . . . . . . . . . . . . . . . . . .15

Brown v.

Bd. of Ed. of Topeka, Shawnee Cnty., Kan.,

347 U.S. 483 (1954). . . . . . . . . . . . . . . . . . . . . . . . . .5, 14

Carson as next friend of O. C. v. Makin,

596 U.S. 767 (2022). . . . . . . . . . . . . 10, 13, 17, 18, 19, 20

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

355 U.S. 489 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020). . . . 3, 4, 5, 10, 11, 12, 13, 14, 21, 22

Everson v. Bd. of Ed. of Ewing Twp.,

330 U.S. 1 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Kennedy v. Bremerton Sch. Dist.,

4 F.4th 910 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . .19

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022). . . . . . . . . . . . . . . . . . . 15, 16, 17, 19

Larson v. Valente,

456 U.S. 228 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

iv

Cited Authorities

Page

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Locke v. Davey,

540 U.S. 712 (2004). . . . . . . . . . . . . . . . . . . . . . . . . .3, 20

Logiodice v. Trustees of Maine Cent. Inst.,

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

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) . . . . . . . . . . . . . . . . . . . . . . . . .18, 20

Meyer v. Nebraska,

262 U.S. 390 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Mitchell v. Helms,

530 U.S. 793 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Polk County v. Dodson,

454 U.S. 312 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Prescott v. Okla. Capitol Preservation Comm’n,

2015 OK 54, 373 P.3d 1032. . . . . . . . . . . . . . . . . . . . . .15

Rendell-Baker v. Kohn,

457 U.S. 830 (1982). . . . . . . . . . . . . . . . . . . . . .18, 21, 22

v

Cited Authorities

Page

Shurtleff v. City of Bos., Mass.,

596 U.S. 243 (2022). . . . . . . . . . . . . . . . . . . 15, 17, 19, 20

Town of Greece v. Galloway,

572 U.S. 565 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . .15

West v. Atkins,

487 U.S. 42 (1988). . . . . . . . . . . . . . . . . . . . . . . . . .18, 21

Zelman v. Simmons-Harris,

536 U.S. 639 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17

Constitutional Provisions

U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

U.S. CONST. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . .13

U.S. CONST. art. VI, cl.2 . . . . . . . . . . . . . . . . . . . . . . . . . .13

OKLA. CONST. art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . .1, 13

OKLA. CONST. art. I, § 5 . . . . . . . . . . . . . . . . . . . . . . 7, 13, 14

vi

Cited Authorities

Page

OKLA. CONST. art. II, § 5 . . . . . . . . . . . . . . . . . . . . . . .13, 15

OKLA. CONST. art. VI, §§ 2, 8. . . . . . . . . . . . . . . . . . . . . . . .1

Statutes, Rules and Regulations

70 O.S. §§ 3-130 et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

70 O.S. § 3-132.2(C)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

70 O.S. § 3-134(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

70 O.S. § 3-136(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

70 O.S. § 3-136(A)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

70 O.S. § 3-136(A)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

70 O.S. § 3-136(A)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

70 O.S. § 3-136(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

70 O.S. § 3-140(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

70 O.S. § 3-140(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

OKLA. A DMIN. CODE 777:10-3-4(b). . . . . . . . . . . . . . . . . . .20

Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . .1

vii

Cited Authorities

Page

Other Authorities

Atto r ney General Dr umm o n d co mm ents

o n St . Is i d o r e f i l i n g (O c t . 7, 2 0 2 4),

https://tinyurl.com/pp5h28pp . . . . . . . . . . . . . . . . . . . .3

BECKET FUND FOR RELIGIOUS LIBERTY, Religious

Freed o m In d ex 8 (5t h ed. Ja n. 2 0 2 4),

https://tinyurl.com/yc5ndb5b . . . . . . . . . . . . . . . . . . . .9

D r u m m o n d a s k s U. S . S u p r e m e C o u r t

to protect parental rights (Jul. 23, 2024),

https://tinyurl.com/2t3usdwf . . . . . . . . . . . . . . . . . . . .3

Drummond files brief in support of religious

liberty before U.S. Supreme Court (Jul. 8, 2024),

https://tinyurl.com/4ecp5m27 . . . . . . . . . . . . . . . . . . . .3

Drummond remarks on actions of Oklahoma

Ch ar t er Sch ool Boar d (Ju l. 10, 2 0 2 4),

https://tinyurl.com/2wa7nuwy . . . . . . . . . . . . . . . . . . .3

Gaston Litton, History of Oklahoma at the Golden

Anniversary of Statehood Vol. II 241– 52

(Lewis Historical Publishing Co., Inc. 1957),

https://tinyurl.com/4a6ue2cc. . . . . . . . . . . . . . .6, 21, 22

Gov’r Charles Haskell, 1909 State of the State

Address (Jan. 5, 1909), https://tinyurl.com/

5cpmbkjc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

viii

Cited Authorities

Page

Gov’r Frank Keating, 1998 State of the State

Address (Feb. 2, 1998), https://tinyurl.com/

24r6cer7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Gov’r Henry Bellmon, 1989 State of the State

Address (Jan. 3, 1989), https://tinyurl.com/

3837u922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Gov’r Kevin Stitt, 2023 State of the State

Address (Feb. 6, 2023), https://tinyurl.com/

2rbcu75j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Gov’r Kevin Stitt, 2024 State of the State

Address (Feb. 5, 2024), https://tinyurl.com/

bdcfmw3t. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Governor Stitt Celebrates Final Passage of

Transformative School Choice Bill (May 2, 2023),

https://tinyurl.com/mu4j8axc . . . . . . . . . . . . . . . . . . . .1

L.W. Baxter, Sixth Biennial Repor t of the

Territorial Superintendent of Public Instruction

(Dec. 1, 1902), https://tinyurl.com/awy4tt8w . . . . . . .7

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part

i: Establishment of Religion, 44 Wm. &

Mary L. Rev. 2105 (2003) . . . . . . . . . . . . . . . . . . .21, 22

OKLA. HIST. SOC’Y, Oklahoma Education, https://

www.okhistory.org/learn/education. . . . . . . . . . . . . . .6

ix

Cited Authorities

Page

OKLA. STATE DEP’T OF EDUC., Oklahoma Charter

School Repor t 2023, https://tinyurl.com /

4ydnjwmj . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 9

OKLA. STATE DEP’T OF EDUC., Oklahoma Public

Schools Fast Facts 2021-22 (updated Jan. 2022),

https://tinyurl.com/47n5a49u . . . . . . . . . . . . . . . . . . . .8

OKLA. STATE LEG., Bill Information for S.B. 368 (2021),

https://tinyurl.com/48byj568. . . . . . . . . . . . . . . . . . . . .1

Paul E. Peterson & M. Danish Shakeel, The Nation’s

Charter Report Card, EDUC . NEXT (2024),

https://tinyurl.com/288cvhfh . . . . . . . . . . . . . . . . . . . .9

PRIVATE SCH. REV., Best Oklahoma Religiously

Af f i li a t e d Pr iv a t e Sch o ol s (2 0 2 4- 25),

https://tinyurl.com/k3xvnjtk. . . . . . . . . . . . . . . . . . . . .6

P U BLIC S CH . R E V., Top 10 Best Oklahoma

C h a r t e r P u b l i c S c h o o l s ( 2 0 2 4 - 2 5),

https://tinyurl.com/3hs2m7d5 . . . . . . . . . . . . . . . . . . . .8

P U BLIC S CH . R E V., Top 10 Best Oklahoma

Public Schools (2024-25), https://tinyurl.com/

t96v7vfd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 8

S J R 18 , St at e Q uest ion 52 6 , Leg islat ive

Referendum 220 (Nov. 7, 1978), https://www.sos.

ok.gov/documents/questions/526.pdf . . . . . . . . . . . . .14

x

Cited Authorities

Page

Thomas Elton Brown, Bible Belt Catholicism:

A History of the Roman Catholic Church

in Oklahoma, 1905-1945 (1977). . . . . . . . . . . . . . . . . .14

U.S. D EP ’T OF EDUC., ED409-621, A Study of

Charter Schools, First-Year Report Executive

Summary (May 1997) . . . . . . . . . . . . . . . . . . . . . . . . . .8

U.S. DEP’T OF EDUC., Preserving a Critical National

Asset: America’s Disadvantaged Students

and the Crisis in Faith-based Urban Schools

(Sept. 2008), https://tinyurl.com/mtpfvsjv. . . . . . . . . .6

W i l l i a m H . Jey n e s , R e l i g i o n , A Me t a Analysis on the Effects and Contributions

of Public, Public Charter, and Religious

Schools on Student Outcomes, 87.3 Peabody

J. of Educ. 305 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . .7

1

INTERESTS OF AMICUS

Amicus J. Kevin Stitt is the Governor of the State of

Oklahoma.1 As Oklahoma’s “Chief Magistrate” vested with

“[t]he Supreme Executive power[,]” Governor Stitt has a

sworn duty to “cause the laws of the State to be faithfully

executed” and uphold “the supreme law of the land”—the

U.S. Constitution. OKLA. CONST. art. VI, §§ 2, 8; OKLA.

CONST. art. I, § 1. Governor Stitt has a duty to protect the

rights of all Oklahomans, and to advocate for the interests

of Oklahomans. Having served as Oklahoma’s Governor

IRU RYHU ÀYH \HDUV *RYHUQRU 6WLWW·V XQLTXH H[SHULHQFH

renders him acutely attuned to those interests.

The State of Oklahoma is steadfast in her support

of religious liberty for all and an innovative educational

system that expands choice for all. 2 For over 30 years,

Oklahoma Governors have supported parental school

choice. 3 The reason is simple: Oklahoma’s “greatest asset

1. As required by Supreme Court Rule 37, Amicus states that

no counsel for a party authored this brief in whole or in part, no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief, no person other

than Amicus or his counsel made such a monetary contribution,

DQGFRXQVHORIUHFRUGUHFHLYHGWLPHO\QRWLFHRILQWHQWWRÀOHWKLV

brief.

2. See, e.g., OKLA . STATE LEG., Bill Information for S.B.

368 (2021), https://tinyurl.com/48byj568 (passing the Oklahoma

Religious Freedom Act with a supermajority vote); Governor Stitt

Celebrates Final Passage of Transformative School Choice Bill

(May 2, 2023), https://tinyurl.com/mu4j8axc.

3. See, e.g., Gov’r Kevin Stitt, 2023 State of the State Address

(Feb. 6, 2023), https://tinyurl.com/2rbcu75j; Gov’r Henry Bellmon,

1989 State of the State Address (Jan. 3, 1989), https://tinyurl.

com/3837u922 (“We are proposing that parents be given greater

2

isn’t our oil and gas—It’s not our football teams—It’s not

the aerospace and defense industry. It’s our kids.” Gov’r

Kevin Stitt, 2023 State of the State Address (Feb. 6, 2023),

https://tinyurl.com/2rbcu75j. And Oklahomans know that

“[t]he child is not the mere creature of the State; those

who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.” Pierce v. Soc’y of Sisters,

268 U.S. 510, 535 (1925); see also Gov’r Kevin Stitt, 2024

State of the State Address (Feb. 5, 2024), https://tinyurl.

com/bdcfmw3t (“[W]e know God gave kids to parents,

not to the government.”). Accordingly, Governor Stitt

is committed to ensuring that all Oklahoma parents,

UHJDUGOHVVRIUHOLJLRXVDIÀOLDWLRQKDYHDFFHVVWRDGLYHUVH

array of high-quality schooling options that allow them

to make choices based on what is best for their children.

Today, Governor Stitt adds his voice in support of

Petitioners, the Oklahoma Statewide Charter School

Board (“Board”), and those urging this Court to correct

the decision below that excluded St. Isidore from a school

charter solely because it is a religious, Catholic institution.

The decision below violates the Free Exercise Clause

of the First Amendment and sanctions open religious

discrimination in the distribution of an otherwise equally

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ÁH[LELOLW\WRGHWHUPLQHZKLFKVFKRROVWKHLUFKLOGUHQZLOODWWHQG

thus providing access to educational excellence by allowing more

parental choice.”); Gov’r Frank Keating, 1998 State of the State

Address (Feb. 2, 1998), https://tinyurl.com/24r6cer7 (“Parents

and students are the ultimate consumers of education. Why do we

continue to deny them free choice? This year, let’s pass a workable

school choice bill and give the green light to charter schools.”).

3

Governor Stitt is compelled to speak on behalf of

Oklahomans through this Brief because the Oklahoma

Attorney General (“OAG”) has deprived them of a true

advocate by launching this attack against their religious

liberty and educational freedom. Revealingly, the OAG

KDVUHSHDWHGO\MXVWLÀHGWKHGLVFULPLQDWRU\H[FOXVLRQRI

D&DWKROLFLQVWLWXWLRQIURPWKHEHQHÀWRIDVFKRROFKDUWHU

with intolerance and open hostility toward other religions.4

All while urging this Court to grant other petitions for

certiorari “to stand up for the fundamental rights of

parents to care and protect their children”5 and to correct

WKHGHQLDORIDSXEOLFEHQHÀWWR´D-HZLVKV\QDJRJXH> @ . . .

simply because it is religious[.]”6

The OAG’s open hostility against religion proves that

a “trendy disdain for deep religious conviction” lives on

amongst some that appear before this Court. Espinoza v.

Mont. Dep’t of Revenue, 591 U.S. 464, 495 (2020) (Thomas,

J., concurring) (quoting Locke v. Davey, 540 U.S. 712,

733 (2004) (Scalia, J., dissenting)). The OAG was not the

4. See, e.g., Attorney General Drummond comments on St.

,VLGRUHÀOLQJ (Oct. 7, 2024), https://tinyurl.com/pp5h28pp (warning

WKDW6W,VLGRUH·VVFKRROFKDUWHUZRXOG´RSHQWKHÁRRGJDWHVDQG

force taxpayers to fund all manner of religious indoctrination,

including radical Islam or even the Church of Satan.”); Drummond

remarks on actions of Oklahoma Charter School Board (Jul. 10,

2024), https://tinyurl.com/2wa7nuwy (characterizing the Board

as “recklessly committed to using our tax dollars to fund radical

religious teachings like Sharia law.”).

5. Drummond asks U.S. Supreme Court to protect parental

rights (Jul. 23, 2024), https://tinyurl.com/2t3usdwf.

6. 'UXPPRQGÀOHVEULHILQVXSSRUWRIUHOLJLRXVOLEHUW\EHIRUH

U.S. Supreme Court (Jul. 8, 2024), https://tinyurl.com/4ecp5m27.

4

ÀUVW WR SHUSHWXDWH WKLV RSHQ KRVWLOLW\ WRZDUG UHOLJLRQ

and likely will not be the last. But granting certiorari

in this case will go a long way toward eliminating the

unfortunate disdain for religion that still plagues this

great Nation, cloaked by its exponents under the cover of

the Establishment Clause. Until then, and “[s]o long as this

hostility remains, fostered by [a] distorted understanding

of the Establishment Clause, free exercise rights will

continue to suffer.” Id. at 496.

SUMMARY OF ARGUMENT

I. Excluding religious entities from school charters

undermines the State’s interests in education and parental

school choice. Religious charter schools will provide an

LQYDOXDEOHSXEOLFEHQHÀWWR2NODKRPDVWXGHQWVSDUHQWV

and educators. Charter schools combine the best elements

of the existing educational systems: the public funding

and equal opportunity of the traditional public school

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These characteristics allow charter schools the unique

ability to innovate, motivating both the public and private

systems to improve. At the same time, faith-based schools

consistently out-perform their counterparts in academic

achievement, contribute to moral development, and allow

parents to pass down important religious and cultural

traditions. Allowing religious institutions the generally

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educational opportunities, educational diversity, and

parental school choice.

II. The Oklahoma Supreme Court’s discriminatory

exclusion of St. Isidore from a school charter based solely

on its religious status violates the Free Exercise Clause

5

and cannot withstand strict scrutiny. State law neither

FRPSHOVQRUMXVWLÀHVWKLVLQIULQJHPHQWRIIUHHH[HUFLVH

When the Oklahoma Attorney General invited the court

“to apply a state law no-aid provision to exclude religious

schools from the program, it was obligated by the Federal

Constitution to reject the invitation.” Espinoza v. Mont.

Dep’t of Revenue, 591 U.S. 464, 487–88 (2020). Nor does

the Establishment Clause provide a compelling interest

WKDWVDWLVÀHVVWULFWVFUXWLQ\+DGWKH2NODKRPD6XSUHPH

Court properly applied this Court’s precedents, it would

have correctly concluded that granting St. Isidore a

school charter does not bear any of the hallmark traits

of establishments of religion.

ARGUMENT

I.

EXCLUDING RELIGIOUS ENTITIES FROM SCHOOL CHARTERS

UNDERMINES THE STATE’S INTERESTS IN EDUCATION AND

PARENTAL CHOICE.

In 1954, this Court recognized in its landmark Brown

v. Board of Education decision that education “is the

very foundation of good citizenship[,]” and the “principal

instrument in awakening the child to cultural values,

in preparing him for later professional training, and in

helping him to adjust normally to his environment.” 347

U.S. 483, 493 (1954). Denying a child the opportunity of

an education denies that child any reasonable expectation

of success in life. Id.; see also Meyer v. Nebraska, 262

U.S. 390, 400 (1923) (“The American people have always

regarded education and acquisition of knowledge as

matters of supreme importance”). Aware of the invaluable

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to foster an array of K-12 educational choices for parents.

6

One educational choice with the deepest roots is the

religious school. Long before the introduction and ubiquity

of the common (or “public”) school system in the State of

Oklahoma, faith-based mission schools served a critical

role in educating the children of the Twin Territories.7

By the mid-to-late 1800s, the Presbyterians, Baptists,

Methodists, and Catholics all operated Christian mission

schools in the Indian Territory. 8 Today, religious schools

educate approximately 35,000 Oklahoma students a year,

representing 4.83% of all K-12 enrollment.9

Faith-based schools “are part of our Nation’s proud

story of religious freedom and tolerance, community

development, immigration and assimilation, academic

achievement, upward mobility, and more.”10 Faith-based

schools “enable parents to pass down religious and cultural

traditions important to their families and communities.”11

In addition, scholars and Justices have long observed

7. See Gaston Litton, History of Oklahoma at the Golden

Anniversary of Statehood Vol. II 241–52 (Lewis Historical

Publishing Co., Inc. 1957), https://tinyurl.com/4a6ue2cc; OKLA .

HIST. SOC ’Y, Oklahoma Education, https://www.okhistory.org/

learn/education.

8. Id.

9. PRIVATE SCH. REV., %HVW2NODKRPD5HOLJLRXVO\$IÀOLDWHG

Private Schools (2024-25), https://tinyurl.com/k3xvnjtk; PUBLIC

SCH. REV., Top 10 Best Oklahoma Public Schools (2024-25), https://

tinyurl.com/t96v7vfd.

10. U.S. DEP ’T OF EDUC., Preserving a Critical National

Asset: America’s Disadvantaged Students and the Crisis in Faithbased Urban Schools 1 (Sept. 2008), https://tinyurl.com/mtpfvsjv.

11. Id. at 6.

7

a positive correlation between faith-based schools and

educational outcomes.12

Public schools, too, have long been a critical educational

option for Oklahoma families. Before Statehood, the

superintendent of the Oklahoma Territory recognized:

The public school is the university of the

masses; upon it depends the education of the

future man, the citizen. That our people realize

its immense importance is plainly demonstrated

by their generous financial support and

personal interest in this institution. . . . The

school is not merely a preparation for life; “it

is life itself.” It develops the intellect, inspires

higher ideals, greater ambitions, and loftier

conceptions of life, thus building character and

ÀWWLQJLQGLYLGXDOVIRUFRPSOHWHOLYLQJ13

Upon statehood, Oklahoma’s founders turned that

belief into a promise of free public education for all

children. See O KLA . C ONST. art. I, § 5 (1907). From

12. See id. at 7–8; William H. Jeynes, Religion, A MetaAnalysis on the Effects and Contributions of Public, Public

Charter, and Religious Schools on Student Outcomes, 87.3

Peabody J. of Educ. 305, 324 (2012) (“students who attend religious

schools perform better than their counterparts who are in public

schools. They achieve better both in terms of academic and

behavioral outcomes.”); Zelman v. Simmons-Harris, 536 U.S.

639, 681 (2002) (Thomas, J., concurring) (“Religious schools, like

other private schools, achieve far better educational results than

their public counterparts.”).

13. L.W. Baxter, Sixth Biennial Report of the Territorial

Superintendent of Public Instruction 12-13 (Dec. 1, 1902), https://

tinyurl.com/awy4tt8w.

8

there, Oklahoma’s common school system was born.14

Today, Oklahoma’s public school system educates over

700,000 students a year, representing 94% of total K-12

enrollment.15 Approximately 56% of those students come

from economically disadvantaged households.16

In the early 1990s, an alternative educational choice to

private and public schools rose to prominence in the United

States: charter schools. Charter schools seek to combine

the best elements of each educational system—the public

funding and equal opportunity of the public school and

WKHÁH[LELOLW\DQGDXWRQRP\RIWKHSULYDWHVFKRRO17 These

unique characteristics allow charter schools the freedom

to innovate, “creat[ing] pressure on local and state public

education systems to operate differently” and “acting as a

catalyst for changing public education across the nation.”18

Oklahoma cleared the way for charter schools in 1999

with the passage of the Oklahoma Charter Schools Act

(“Act”). See +%26/ FRGLÀHGDW26

§§ 3-130 et al.). Today, charter schools serve over 50,000

students, representing 7.2% of total K-12 enrollment.19

14. See Gov’r Charles Haskell, 1909 State of the State Address

(Jan. 5, 1909), https://tinyurl.com/5cpmbkjc.

15. See PUBLIC SCH. REV., supra n.9; OKLA . STATE DEP’T OF

EDUC., Oklahoma Public Schools Fast Facts 2021-22 10 (updated

Jan. 2022), https://tinyurl.com/47n5a49u.

16. Oklahoma Public Schools Fast Facts, supra n.15 at 30.

17. U.S. DEP ’T OF EDUC., ED409-621, A Study of Charter

Schools, First-Year Report Executive Summary 1 (May 1997).

18. Id.

19. PUBLIC SCH. REV., Top 10 Best Oklahoma Charter Public

Schools (2024-25), https://tinyurl.com/3hs2m7d5; OKLA . STATE

9

Oklahoma charter schools lead the Nation in academic

excellence. 20

Combining the moral grounding, community ethic, and

academic rigor of a faith-based school with the innovation,

ÁH[LELOLW\DQGSXEOLFDFFHVVRIDFKDUWHUVFKRROZLOOH[SDQG

educational opportunities and strengthen educational

outcomes. The availability of religious charter schools

will allow students and teachers to thrive in educational

environments that support their unique needs and

SUHIHUHQFHV,WZLOODOVRDOORZFRPPXQLWLHVWRSURÀWIURP

increased stability and social engagement, and the State

to strengthen accountability and spark positive change

among all educational systems. Perhaps more importantly,

the availability of religious charter schools will help

alleviate wide-spread parental concern over school content

WKH\ÀQGPRUDOO\REMHFWLRQDEOH³DOOZLWKRXWWKHFULSSOLQJ

ÀQDQFLDOEXUGHQRIWXLWLRQ 21 On the other hand, excluding

religious entities, and only religious entities, from school

charters will leave appreciable damage to the State’s

interest in education and parental school choice.

DEP’T OF EDUC., Oklahoma Charter School Report 2023 10, https://

tinyurl.com/4ydnjwmj.

20. Paul E. Peterson & M. Danish Shakeel, The Nation’s

Charter Report Card, EDUC. NEXT 26–28 (2024), https://tinyurl.

com/288cvhfh.

21. See BECKET F UND FOR R ELIGIOUS LIBERTY, Religious

Freedom Index 8 (5th ed. Jan. 2024), https://tinyurl.com/yc5ndb5b

(“67% of Americans agreed that parents should be able to opt

their children out of school content that parents found morally

objectionable . . . and 74% agreed with curriculum opt outs for

reasons of faith or age-appropriateness concerns.”).

10

II. THE OKLAHOMA SUPREME COURT’S EXCLUSION OF ST.

ISIDORE FROM THE PUBLIC BENEFIT OF A SCHOOL CHARTER

VIOLATES THE F REE EXERCISE C LAUSE AND CANNOT

WITHSTAND STRICT SCRUTINY.

This Court has repeatedly instructed that “an interest

LQ VHSDUDWLQJ FKXUFK DQG VWDWH PRUH ÀHUFHO\ WKDQ WKH

Federal Constitution . . . cannot qualify as compelling in

the face of the infringement of free exercise.” Carson as

next friend of O. C. v. Makin, 596 U.S. 767, 781 (2022)

(cleaned up). In Trinity Lutheran Church of Columbia,

Inc. v. Comer, 582 U.S. 449, 466 (2017), this Court explained

that a State interest in “skating as far as possible from

UHOLJLRXV HVWDEOLVKPHQW FRQFHUQVµ ZDV QRW VXIÀFLHQWO\

compelling “[i]n the face of the clear infringement on

free exercise[.]” In Espinoza v. Montana Department of

Revenue, 591 U.S. 464, 485 (2020), this Court reiterated

that ““[a] State’s interest ‘in achieving greater separation

of church and State than is already ensured under the

Establishment Clause . . . is limited by the Free Exercise

Clause.’” (citation omitted). And in Carson, this Court

stressed that “[a] State’s antiestablishment interest does

not justify enactments that exclude some members of the

community from an otherwise generally available public

EHQHÀWEHFDXVHRIWKHLUUHOLJLRXVH[HUFLVHµ86DW

Those instructions continue to be ignored. In the

decision below, the Oklahoma Supreme Court treads

the same worn path as the Missouri Department of

Natural Resources (Trinity Lutheran), the Montana

Supreme Court (Espinoza), and the Maine Department of

Education (Carson) by invoking the Establishment Clause

to exclude yet another religious entity from yet another

JHQHUDOO\ DYDLODEOH SXEOLF EHQHÀW solely because of its

11

religious character. This Court should grant certiorari

to cure this blatant constitutional error.

A.

Strict scrutiny applies to the Oklahoma

Supreme Court’s exclusion of St. Isidore

from the generally available benefit of a

school charter solely because of its religious

character.

Excluding an organization from “a generally available

EHQHÀWVROHO\RQDFFRXQWRIUHOLJLRXVLGHQWLW\LPSRVHVD

SHQDOW\RQWKHIUHHH[HUFLVHRIUHOLJLRQWKDWFDQEHMXVWLÀHG

only by a state interest ‘of the highest order.’” Trinity

Lutheran, 582 U.S. at 458 (citation omitted); see also id. at

462. As it was with the scholarship program in Espinoza

and the tuition assistance program in Carson, the charter

school exclusion here “bars religious schools from public

EHQHÀWVVROHO\EHFDXVHRIWKHUHOLJLRXVFKDUDFWHURIWKH

schools.” Espinoza, 591 U.S. at 476.

The Oklahoma Supreme Court made no secret it

denied St. Isidore a school charter because St. Isidore

is a “religious school” or “Catholic School.” App.5a, 9a,

17a, 25a–27a. The court explained St. Isidore would

“establish and operate the school as a Catholic school[,]”

“is an instrument of the Catholic church, operated by the

Catholic church, and will further the evangelizing mission

of the Catholic church in its educational programs.”

App.9a, 13a. It repeatedly emphasized that “St. Isidore

. . . is a religious institution” with a mission “[t]o create,

establish, and operate’ the school as a Catholic school.”

App.7a; see also App.9a (“St. Isidore warrants that it is

DIÀOLDWHG ZLWK D QRQSXEOLF VHFWDULDQ VFKRRO RU UHOLJLRXV

institution.”); App.15a (“There is no question that

12

St. Isidore is a sectarian institution and will be sectarian

in its programs and operations.”). Like the Montana

Supreme Court in Espinoza, Oklahoma relied on state

constitutional provisions “which prohibit the State from

using public money for the establishment of a religious

institution.” Compare App.9a with Espinoza, 591 U.S. at

476; see also App.13a (“The expenditure of state funds for

St. Isidore’s operations constitutes the use of state funds

IRU WKH EHQHÀW DQG VXSSRUW RI WKH &DWKROLF FKXUFKµ  22

7KXV 6W ,VLGRUH ZDV H[FOXGHG IURP WKH SXEOLF EHQHÀW

solely because of its religious status, and strict scrutiny

applies. 23

B. State law cannot harbor the Oklahoma

Supreme Court’s infringement of free exercise

of religion.

The Oklahoma Supreme Court defended its religious

discrimination in part by concluding it was compelled

by state law. App.9a–15a. The court relied on two

constitutional provisions prohibiting the use of public

money to support sectarian institutions and the sectarian

22. The fact that the Oklahoma Supreme Court “expressly

discriminated ‘based on religious identity’ . . . [is] enough to

invalidate the state policy without addressing how government

funds were used.” Espinoza, 591 U.S. at 476 (quoting Trinity

Lutheran, 582 U.S. at 465 n.3).

23. The Oklahoma Supreme Court hardly contested its

decision discriminated against religion. Instead, it summarily

concluded “[t]he Free Exercise Trilogy cases do not apply” because

“St. Isidore is a state-created school . . . [u]nlike the private entities

in the Free Exercise Trilogy cases[.]” App.27a. It also concluded

“[c]ompliance with the Establishment Clause in this case is a

FRPSHOOLQJLQWHUHVWWKDWVDWLVÀHVVWULFWVFUXWLQ\>@µ$SSD

13

control of schools, as well as a provision of the Act

SURKLELWLQJVHFWDULDQDIÀOLDWLRQId.; OKLA. CONST. art. I,

§ 5; OKLA. CONST. art. II, § 5; 70 O.S. § 3-136(A)(2).

But state law is no defense to a violation of the Free

Exercise Clause. The Supremacy Clauses of both the

U.S. and Oklahoma constitutions prevent state action

WKDW FRQÁLFWV ZLWK WKH )UHH ([HUFLVH &ODXVH ZKLFK LV

incorporated against the States by virtue of the Fourteenth

Amendment. See Espinoza, 591 U.S. at 475, 487 (citing

U.S. CONST. art. VI, cl.2); OKLA. CONST. art. I, § 1. Again,

this Court has “repeatedly held that a State violates the

Free Exercise Clause when it excludes religious observers

IURP RWKHUZLVH DYDLODEOH SXEOLF EHQHÀWVµ Carson, 596

U.S. at 778. And “[i]t is too late in the day to doubt that

the liberties of religion and expression may be infringed

E\WKHGHQLDORIRUSODFLQJRIFRQGLWLRQVXSRQDEHQHÀWRU

privilege.” Id. (citation omitted).

In Espinoza, the Montana Supreme Court, like the

Oklahoma Supreme Court, relied on the state “no-aid

provision to bar religious schools from the scholarship

program.” 591 U.S. at 474. This Court explained that when

that court “was called upon to apply a state law no-aid

provision to exclude religious schools from the program,

it was obligated by the Federal Constitution to reject the

invitation.” Id. at 487–88. Accordingly, and “[b]ecause

WKHHOLPLQDWLRQRIWKHSURJUDPÁRZHGGLUHFWO\IURPWKH

Montana Supreme Court’s failure to follow the dictates

of federal law,” the decision could not “be defended as a

neutral policy decision, or as resting on adequate and

independent state law grounds.” Id. at 488.

So too here, this Court’s precedents obliged the

Oklahoma Supreme Court to reject the OAG’s invitation to

14

violate the Free Exercise Clause by excluding St. Isidore

IURPWKHSXEOLFEHQHÀWRIDVFKRROFKDUWHU7KHUHIXVDOWR

follow the U.S. Constitution cannot be defended on state

law grounds.

Moreover, the Oklahoma Supreme Court’s undue

reliance on these state constitutional provisions was

always perilous. Starting with Oklahoma’s “no-aid”

provision, the anti-religious origins of these “little Blaine

Amendments” is notorious. See Espinoza, 591 U.S. at 482;

id. at 499–507 (Alito, J., concurring). The court brushed

aside those concerns by suggesting our framers were not

motivated by religious bigotry and never mentioned the

Blaine Amendment. App.10a–12a. But the seedy origins

of the amendment Oklahoma adopted cannot be severed

by mere suggestion of acquiescence. 24 What’s more, this

provision originally required not only a system of public

schools “free from sectarian control[,]” but also “the

establishment and maintenance of separate schools for

white and colored children.” OKLA. CONST. art. I, § 5 (1907).

The latter requirement rightfully crumbled under the

weight of time and reason. 25 It is past time for the former

requirement to follow suit.

24. In addition, Oklahoma’s history on this front is not as

virtuous as its high court imagines. See, e.g., Thomas Elton Brown,

Bible Belt Catholicism: A History of the Roman Catholic Church

in Oklahoma, 1905-1945 46 (1977) (“Paralleling this national t[r]

end, Oklahoma experienced its own anti-Catholicism in the years

immediately following statehood and witnessed its spread across

the state by the advent of World War I.”).

25. See Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan.,

347 U.S. 483, 495 (1954); SJR 18, State Question 526, Legislative

Referendum 220 (Nov. 7, 1978), https://www.sos.ok.gov/documents/

questions/526.pdf.

15

And reliance on Article II Section 5 often lands

the Oklahoma Supreme Court on the wrong side of this

Court’s Establishment Clause cases—from the public

transportation debate 26 to the Ten Commandments

debate. 27 No doubt these outcomes have been steered by

the court’s belief that the Oklahoma framers intended “a

complete separation of church and state.” App.11a–12a;

but see Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,

535 (2022) (explaining that the Establishment Clause does

not “‘compel the government to purge from the public

sphere’ anything an objective observer could reasonably

infer endorses or ‘partakes of the religious.’”) (citation

omitted). The Oklahoma Supreme Court’s track record

OHDYHVOLWWOHFRQÀGHQFHLQWKHFRXUW·VDELOLW\WRDFFXUDWHO\

draw the line between what the Free Exercise Clause

protects and what the Establishment Clause prohibits.

C.

The Oklahoma Supreme Court’s religious

discrimination against St. Isidore is not

MXVWLÀHGE\WKH(VWDEOLVKPHQW&ODXVH

Resolving Establishment Clause disputes requires

a return to “the Constitution’s original meaning[,]” “by

reference to historical practices and understandings.”

Shurtleff v. City of Bos., Mass., 596 U.S. 243, 277 (2022)

(Gorsuch, J., concurring); Town of Greece v. Galloway,

572 U.S. 565, 576 (2014); see also Kennedy, 597 U.S. at 536

26. Compare Bd. of Ed. for Indep. Sch. Dist. No. 52 v. Antone,

1963 OK 165, ¶ 0, 384 P.2d 911, 911 with Everson v. Bd. of Ed. of

Ewing Twp., 330 U.S. 1, 17 (1947).

27. Compare Prescott v. Okla. Capitol Preservation Comm’n,

2015 OK 54, ¶ 7, 373 P.3d 1032, 1034 with Van Orden v. Perry, 545

U.S. 677, 690 (2005).

16

(“An analysis focused on original meaning and history, this

Court has stressed, has long represented the rule rather

than some “‘exception’” within the ‘Court’s Establishment

Clause jurisprudence.’”) (citation omitted). Courts must

look to the “hallmarks of religious establishments the

framers sought to prohibit when they adopted the First

Amendment.” Kennedy, 597 U.S. at 537. 28

The Oklahoma Supreme Court failed to apply this

historical framework. Instead, the court focused “on

whether religious activity involves a ‘state actor’ or

constitutes ‘state action’” and fixated on labels like

“public school,” “state actor[,]” and “governmental entity.”

App.17a, 20a, 24a–26a. To apply those labels, the court

imported the “state actor” test found in the civil rights

FRQWH[W³OD\LQJ RXW ÀYH RI WKRVH WHVWV DV D EXIIHW IURP

which the court could pick and choose. App.20a–21a.

Had the court applied the proper historical framework,

however, it would have correctly concluded that granting

St. Isidore a school charter does not bear any of the

hallmark traits of establishment of religion.

The Oklahoma Supreme Court should have focused its

analysis on the foremost historical hallmark of religious

establishments: impermissible government coercion of

religious activities, especially when accompanied by threat

of force of law and penalties. See Kennedy, 597 U.S. at 537

(“Government may not coerce anyone to attend church, . . .

nor may it force citizens to engage in a formal religious

exercise”) (cleaned up); see also Lee v. Weisman, 505 U.S.

28. At least six hallmarks of religious establishments can be

extrapolated from the discussion in Kennedy or the authorities

citied therein. See Kennedy, 597 U.S. at 537, n.5.

17

577, 640–41 (1992) (Scalia, J., dissenting). Consistent with

the same, government coercion (or mandate) of church

attendance and participation in formal religious exercises

has long been impermissible. See Kennedy, 597 U.S. at

537; Shurtleff, 596 U.S. at 286 (Gorsuch, J., concurring).

The grant of St. Isidore a school charter does not

resemble government coercion of religious exercise by

threat of force of law or penalty. Distracted analogizing

charter schools and traditional public schools, the

Oklahoma Supreme Court missed this unique feature:

the absence of compelled enrollment. While a charter

school must be “as equally free and open to all students as

traditional public school[,]” 70 O.S. § 3-136(A)(9), nothing

in Oklahoma law requires students to enroll and attend a

charter school. See 70 O.S. § 3-140(A) (requiring students

to “submit a timely application” to enroll in charter school).

Unlike traditional public schools, charter schools can cap

enrollment capacity. See 70 O.S. § 3-140(A), (E). Thus,

the State does not compel attendance or participation in

a religious charter school. Instead, it is the “genuine and

independent choices” of parents and students that dictate

attendance. Zelman v. Simmons-Harris, 536 U.S. 639,

649 (2002). This principle of private choice distinguishes

charter schools from traditional public schools, placing

this case well within the scope of the Free Exercise

Trilogy. See Carson, 596 U.S. at 781.

To reach the opposite conclusion, the Oklahoma

Supreme Court leaned heavily into the fact that “the

Charter School Board will provide oversight of the

operation for St. Isidore, monitor its performance and

legal compliance, and decide whether to renew or revoke

St. Isidore’s charter.” App.21a. But this Court has already

18

made clear that “receiv[ing] state funding” and “being

regulated by the State does not make one a state actor.”

West v. Atkins, 487 U.S. 42, 52 n.10 (1988); Manhattan

Cmty. Access Corp. v. Halleck, 587 U.S. 802, 816 (2019).

And under any applicable standard, the general oversight

provided by the Board falls woefully short of establishing

the type of pervasive entwinement or sham arrangement

that would render St. Isidore a state actor, much less

offend the Establishment Clause. See Rendell-Baker

v. Kohn, 457 U.S. 830, 841 (1982) (“Acts of such private

contractors do not become acts of the government by

UHDVRQ RI WKHLU VLJQLÀFDQW RU HYHQ WRWDO HQJDJHPHQW LQ

performing public contracts.”).

The court also relied heavily on the language in

WKH $FW GHÀQLQJ D FKDUWHU VFKRRO DV D ´¶SXEOLF VFKRRO·

established by contract” to distinguish charter schools

IURP WKH SXEOLF EHQHÀWV DW LVVXH LQ WKH )UHH ([HUFLVH

Trilogy. App.17a (quoting 70 O.S. § 3-132.2(C)(1)); see

also $SSD²D%XWWKHVXEVWDQFHRIWKHSXEOLFEHQHÀW

directs the First Amendment inquiry, not statutory

labeling or “the presence or absence of magic words.”

Carson, 596 U.S. at 785. That maxim holds up in nearly

every constitutional context, including in state action

cases. See, e.g., 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.”);

Polk County v. Dodson, 454 U.S. 312, 317–19 (1981)

(concluding a public defender was not a state actor after

DQDO\]LQJWKHIXQFWLRQVDQGREOLJDWLRQVRIWKHRIÀFH 7KXV

the legislative label of “public school” is of no import to

the Establishment Clause analysis.

Another hallmark of religious establishments the

Oklahoma Supreme Court should have considered is

19

´ÀQDQFLDOVXSSRUWIRUWKHHVWDEOLVKHGFKXUFKRIWHQLQD

way that preferred the established denomination over

other churches.” Shurtleff, 596 U.S. at 286 (Gorsuch,

J., concurring). This hallmark sounds familiar because

denominational neutrality is a common feature of this

Court’s religion clause jurisprudence. See, e.g., Carson, 596

86DW GHVFULELQJWKDWD´QHXWUDOEHQHÀWSURJUDPLQ

ZKLFKSXEOLFIXQGVÁRZWRUHOLJLRXVRUJDQL]DWLRQVWKURXJK

WKHLQGHSHQGHQWFKRLFHVRISULYDWHEHQHÀWUHFLSLHQWVGRHV

not offend the Establishment Clause.”); Larson v. Valente,

456 U.S. 228, 246 (1982) (“[T]his Court has adhered to

the principle, clearly manifested in the history and logic

of the Establishment Clause, that no State can ‘pass laws

which aid one religion’ or that ‘prefer one religion over

another.’”) (citation omitted).

Again, nothing in the record suggests the availability

of a school charter is anything but neutral. Indeed, it was

this very neutrality that inspired the Oklahoma Attorney

General to prophesy doom by arguing a grant of St.

Isidore’s charter would force the State to “fund all manner

of religious indoctrination, including radical Islam or even

the Church of Satan” and “radical religious teachings like

Sharia law.” Supra n.4. Luckily for Oklahoma believers

of any faith or no faith, “nothing in the Establishment

Clause requires the exclusion of pervasively sectarian

schools from otherwise permissible aid programs, and

other doctrines of this Court bar it.” Mitchell v. Helms,

530 U.S. 793, 829 (2000). As this Court emphasized over

twenty years ago: “[t]his doctrine, born of bigotry, should

be buried now.” Id.; see also Kennedy v. Bremerton

Sch. Dist., 4 F.4th 910, 945 (9th Cir. 2021) (Nelson, J.,

dissenting) (“The way to stop hostility to religion is to

stop being hostile to religion.”).

20

Another missing hallmark of religious establishments

is “government exerted control over the doctrine and

personnel of the established church.” Shurtleff, 596

U.S. at 286 (Gorsuch, J., concurring). Accepting that the

religious character of St. Isidore renders it analogous to

an established church, the State exercises very limited,

if any, control over the internal operations of St. Isidore.

St. Isidore is a privately owned and operated entity that

contracts with the State to provide education under a

statewide charter school sponsorship. See PA057, 310,

314; 70 O.S. § 3-134(C). Under the Act, charter schools are

exempted “from all statutes and rules relating to schools”

XQOHVVVSHFLÀFDOO\SURYLGHGEXW´PD\RIIHUDFXUULFXOXP

ZKLFKHPSKDVL]HVDVSHFLÀFOHDUQLQJSKLORVRSK\RUVW\OH

or certain subject area.” 70 O.S. § 3-136(A). While the

Board may “provide ongoing oversight of the charter

schools[,]” the charter school’s own board controls the

school’s “policies and operational decisions.” OKLA. A DMIN.

CODE 777:10-3-4(b); 70 O.S. § 3-136(A)(8). Like the private

school in Carson, “the curriculum taught at participating

[charter schools] need not even resemble that taught in

the [Oklahoma] public schools” and “[p]articipating schools

need not hire state-certified teachers.” Carson, 596

U.S. at 783; 70 O.S. § 3-136(B) (allowing charter schools

ÁH[LELOLW\LQ´SHUVRQQHOSROLFLHVSHUVRQQHOTXDOLÀFDWLRQV

and method of school governance”).

2QHÀQDODEVHQWKDOOPDUNRIUHOLJLRXVHVWDEOLVKPHQWV

is the use of “the established church to carry out certain

civil functions, often by giving the established church a

PRQRSRO\RYHUDVSHFLÀFIXQFWLRQµShurtleff, 596 U.S. at

286 (Gorsuch, J., concurring); but see Halleck, 587 U.S. at

814 (“[T]he fact that the government licenses, contracts

with, or grants a monopoly to a private entity does not

convert the private entity into a state actor—unless the

21

private entity is performing a traditional, exclusive public

function.”). Here, nothing in the record suggests Oklahoma

has given St. Isidore (or any charter school) a monopoly

over the civil function of education—whether categorized

as “public” or not. Oklahoma has not abandoned its public

school system and left students no choice but to submit

to a religious charter school. Cf. West v. Atkins, 487 U.S.

42, 55 (1988) (involving a complete abdication of a state’s

constitutional obligation to provide medical care to

inmates by contracting with a single physician to provide

those services). The overwhelming majority of Oklahoma

students still receive a traditional public education. See

supra p. 8. Giving Oklahoma parents and students another

alternative to the traditional public school setting does not

equate to a total delegation of any independent obligation

to provide free, public education.

Moreover, “it is clear that there is no ‘historic and

substantial’ tradition against aiding such [religious]

schools comparable to the tradition against statesupported clergy invoked by Locke.” Espinoza, 591 U.S.

at 483; see also Halleck, 587 U.S. at 809 (observing that

“‘very few’ functions fall into this category” of “powers

traditionally exclusively reserved to the State.” (citations

omitted)). Even the Oklahoma Supreme Court conceded

that “[t]he provision of education may not be a traditionally

exclusive public function[.]” App.21a; see also RendellBaker, 457 U.S. at 842. Indeed, religious institutions

carried out the civil function of education long before the

common school movement. 29

2 9. See M ichael W. McConnell, Establishm ent an d

Disestablishment at the Founding, Part i: Establishment of

Religion, 44 Wm. & Mary L. Rev. 2105, 2171 (2003); Litton, supra

n.7 at 241–52.

22

The Oklahoma Supreme Court evaded this wellestablished history by positing that “free public education

is exclusively a public function” and declaring that St.

,VLGRUHÀWWKDWDUWLÀFLDOFULWHULRQ$SSD6HWWLQJDVLGH

the court’s flimsy circular reasoning, this Court has

already held that “to provide services for such students

at public expense . . . in no way makes these services the

exclusive province of the State.” Rendell-Baker, 457 U.S.

at 842. The educational function that St. Isidore provides

controls the inquiry—not whether the State pays for that

function. See, e.g., Logiodice v. Trustees of Maine Cent.

Inst., 296 F.3d 22, 27 (1st Cir. 2002) (“There is no indication

that the Supreme Court had this kind of tailoring by

adjectives in mind when it spoke of functions ‘exclusively’

provided by government.”). Additionally, providing a

free, publicly-funded education is not traditionally and

exclusively a government function. Instead, religious

schools have a well-documented history of offering free

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See Espinoza, 591 U.S. at 480 (“In the founding era and the

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to private schools, including denominational ones.”);

McConnell, supra n.29 at 2174 (observing that religious

schools in the colonial period offered “free or subsidized

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support for education”); Litton, supra n.7 at 243, 250–52,

262, 274 (describing the operation of mission schools in

Indian Territory through contracts or funding from tribal

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required tuition).

In sum, granting St. Isidore a school charter lacks

any of the hallmark traits of establishment of religion and

does not implicate the Establishment Clause. Accordingly,

23

the Oklahoma Supreme Court’s interest in complying with

the Establishment Clause fails to justify the religious

discrimination against St. Isidore. The decision below

cannot withstand strict scrutiny. And this Court ought

to rectify the discrimination instigated by the Oklahoma

Attorney General and condoned by the Oklahoma Supreme

Court.

CONCLUSION

For the reasons stated, Amicus Oklahoma Governor

J. Kevin Stitt respectfully requests that this Court grant

Petitioners the writ of certiorari.

Respectfully submitted,

TREVOR S. PEMBERTON

Counsel of Record

Special Counsel

AUDREY A. WEAVER

Deputy General Counsel

OFFICE OF OKLAHOMA GOVERNOR

J. KEVIN STITT

2300 North Lincoln Boulevard,

Suite 212

Oklahoma City, OK 73105

(405) 521-2342

trevor.pemberton@gov.ok.gov

Counsel for Amicus Curiae

November 8, 2024