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

Supreme Court briefMar 11, 2025

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Nos. 24-394, 24-396

IN THE

Supreme Court of the United States

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL

Petitioner,

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. STATE OF OKLAHOMA,

Respondent.

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, ET

AL.

Petitioners,

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. STATE OF OKLAHOMA,

Respondent.

On Writ of Certiorari to the

Oklahoma Supreme Court

Brief of National Religious Broadcasters

as Amicus Curiae in support of Petitioners

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street, Seventh Floor

Washington D.C. 20001

(202)341-4783

mfarris@nrb.org

Counsel for Amicus Curiae

Table of Contents

Table of Contents ........................................................ i

Table of Authorities ................................................... ii

Interest of Amicus ...................................................... 1

Summary of the Argument ........................................ 2

Argument.................................................................... 3

I. The Holding of the Supreme Court of Oklahoma

that the Contract with St. Isadore School Violates

the Federal Establishment Clause cannot

Withstand Scrutiny ................................................ 3

Conclusion .................................................................. 8

Table of Authorities

Cases

Carson as next friend of O. C. v. Makin, 596 U.S. 767

(2022). ...................................................................... 7

Drummond ex rel. State v. Oklahoma Statewide

Virtual Charter Sch. Bd., 2024 OK 53, ¶ 40, 558

P.3d 1 (2024) ....................................................... 3, 4

Espinoza v. Montana Dep't of Revenue, 591 U.S. 464

(2020) ....................................................................... 7

Good News Club v. Milford Cent. Sch., 533 U.S. 98

(2001) ....................................................................... 7

Kennedy v. Bremerton School District, 597 U.S. 507

(2022) ....................................................................... 3

Lee v. Weisman, 505 U.S. 577 (1992)......................... 3

Locke v. Davey, 540 U.S. 712 (2004) .............. 4, 5, 6, 7

Mueller v. Allen, 463 U.S. 388 (1983) ............ 4, 5, 6, 7

Santa Fe Independent School District v. Doe, 530

U.S. 290 (2000) ........................................................ 3

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374

U.S. 203 (1963) ........................................................ 4

Wallace v. Jaffree, 472 U.S. 38 (1985) ....................... 4

Witters v. Washington Dept. of Servs. for Blind, 474

U.S. 481 (1986) ............................................ 4, 5, 6, 7

Zelman v. Simmons–Harris, 536 U.S. 639

(2002)……........................................................ 4, 5, 7

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1

(1993) ............................................................... 4, 5, 7

Zorach v. Clauson, 343 U.S. 306 (1952) .................... 3

Statutes

Okla. Stat. tit. 70, § 3-142(A), (B)(2) (2023) (§ 3142(A), (C) (2024))………………………………………..5

Interest of Amicus

National Religious Broadcasters (NRB) is a

non-partisan association of Christian broadcasters

united by their shared purpose of proclaiming

Christian teaching and promoting biblical truths.

NRB’s 1,487 members reach a weekly audience of

approximately 141 million American listeners,

viewers, and readers through radio, television, the

Internet, and other media.

Since its founding in 1944, NRB has worked to

foster excellence, integrity, and accountability in its

membership. NRB also works to promote its

members’ use of all forms of communication to ensure

that they may broadcast their messages of hope

through First Amendment guarantees. NRB believes

that religious liberty and freedom of speech together

form the cornerstone of a free society.

Broadcasters regularly must deal with

government agencies. A correct understanding of the

law ensures that religious organizations are not

treated unequally under the guise of a desire to

comply with the Establishment Clause.1

1 Pursuant to Supreme Court Rule 37.6, counsel for your amicus

certifies that no counsel for any party authored this brief in

whole or in part. No person or entity other than NRB furnished

any monetary contribution for the preparation of this brief.

Summary of the Argument

This brief addresses only one issue decided by

the Oklahoma Supreme Court. That court held that

the federal Establishment Clause prohibits a

religious school from contracting with the state’s

charter school agency.

The Oklahoma court’s analysis of the

Establishment Clause is deeply flawed. Claiming to

rely on this Court’s rule that there is “play in the

joints” between the Establishment Clause and the

Free Exercise Clause, it held the exact opposite of

what this Court means by that phrase.

This Court has said that not everything

permissible under the Establishment Clause is

mandated by the Free Exercise Clause—most

notably, state government support for theological

education for ministers and the like. The Oklahoma

Supreme Court turned that rule inside out holding

that actions permissible under the Free Exercise may

be banned by the Establishment Clause.

Most importantly, the Oklahoma court

absolutely failed to address the many holdings of this

Court that have confirmed that the inclusion of

religious people or institutions in broad neutral

programs do not violate the Establishment Clause.

Argument

I. The Holding of the Supreme Court of

Oklahoma that the Contract with St. Isadore

School Violates the Federal Establishment

Clause cannot Withstand Scrutiny

The decision below proclaims: “The Establishment

Clause cases from the U.S. Supreme Court have not

dealt with the creation of a religious public school.

Rather, the cases have revolved around religious acts

in public schools.” Drummond ex rel. State v.

Oklahoma Statewide Virtual Charter Sch. Bd., 2024

OK 53, ¶ 40, 558 P.3d 1, 13 (2024). The lower court

follows this description with citations to Kennedy v.

Bremerton School District, 597 U.S. 507, 541-42

(2022) (prayer by a public school football coach)

Zorach v. Clauson, 343 U.S. 306 (1952) (released time

program); Lee v. Weisman, 505 U.S. 577 (1992),

(graduation prayers); and Santa Fe Independent

School District v. Doe, 530 U.S. 290 (2000) (public

broadcasting of prayer over school sound system).

The Oklahoma court then summarized the

lesson it claims to have derived from this line of cases.

“These cases demonstrate the Establishment Clause

prohibits public schools (state actors) from requiring

or expecting students to participate in religious

activities.” 558 P.3d at 13.

While the rule that public schools are

prohibited from requiring or expecting students to

participate in religious activities is true enough, the

use of Kennedy and Zorach for this purpose seems a

bit odd since both cases affirm religious activities that

were connected to public schools. Wallace v. Jaffree,

472 U.S. 38 (1985) or Sch. Dist. of Abington Twp., Pa.

v. Schempp, 374 U.S. 203 (1963) might have been

better choices for the point the Oklahoma court was

trying to make.

But the more serious error arises from the

lower court’s essential failure to address the branch

of Establishment Clause cases which have arisen in

the context of educational choice programs. See, e.g.,

Zelman v. Simmons–Harris, 536 U.S. 639, 652 (2002);

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1,

13–14 (1993); Witters v. Washington Dept. of Servs. for

Blind, 474 U.S. 481, 487 (1986); Mueller v. Allen, 463

U.S. 388, 399–400 (1983).

The only case the lower court cites from the

school choice arena is Locke v. Davey, 540 U.S. 712

(2004), and it mishandles Locke—badly. What the

Oklahoma decision says about Locke’s rule is

erroneous, and what it omits from Locke is both

material and contrary to the conclusion reached

regarding the federal Establishment Clause.

The Oklahoma decision cites Locke for the

principle that “there is a play in the joints between

what the Establishment Clause permits, and the Free

Exercise Clause compels.” 558 P.3d at 13 (cleaned up.)

But as Inigo Montoya said to Vizzini in The Princess

Bride, “I do not think it means what you think it

means.”

Locke, itself, explains the precise meaning of

“play in the joints.” “[T]here are some state actions

permitted by the Establishment Clause but not

required by the Free Exercise Clause.” 540 U.S. at

719. The Oklahoma court stands Locke’s “play in the

joints” concept on its head by its conclusion that the

Establishment Clause prohibits the government from

doing what the Free Exercise Clause permits.

There are two lessons from Locke that should

have been apparent to the lower court. First, citing

Witters, 474 U.S. at 489, this Court held: “there is no

doubt that the State could, consistent with the

Federal Constitution, permit Promise Scholars to

pursue a degree in devotional theology.” Locke, supra

at 719. Since St. Isidore is not offering theological

degrees for ministerial students, Locke’s ultimate

holding does not support the Oklahoma court’s

conclusion. Second, the Oklahoma court should have

at least addressed Locke’s summation of the rule

arising from Zelman, Zobrest, Witters, and Mueller.

“[T]he link between government funds and religious

training is broken by the independent and private

choice of recipients.” Id. This principle is applicable

here since St. Isidore’s funding depends on student

enrollment. Pet.App.157a (24-396); Okla. Stat. tit. 70,

§ 3-142(A), (B)(2) (2023) (§ 3-142(A), (C) (2024)).

In some sense, this Court’s unanimous decision

in Witters gives the ultimate “green light” for the rule

that programs or students may not be excluded under

the Establishment Clause on the ground that they are

too religious. Larry Witters attended Inland Empire

School of the Bible to be trained as “a pastor,

missionary, or youth director.” 474 U.S. at 489.

Witters clarified that the Establishment Clause

is not violated when any aid “that ultimately flows to

religious institutions does so only as a result of the

genuinely independent and private choices of aid

recipients.” 474 U.S. at 488. Thus, the Establishment

Clause is not offended by St. Isidore’s participation.

The Oklahoma court made the same error that

the Washington Supreme Court made in Witters.

Establishment Clause violations are to be found in

the program as a whole not in the fact that religious

individuals are permitted to participate in a broad

program of educational choice.

In effect, the court analyzed the case as if the

Washington Legislature had passed a private

bill that awarded respondent free tuition to

pursue religious studies. Such an analysis

conflicts with both common sense and

established precedent.4 Nowhere in Mueller did

we analyze the effect of Minnesota's tax

deduction on the parents who were parties to

the case; rather, we looked to the nature and

consequences of the program viewed as a

whole. Mueller, supra 463 U.S., at 397–400.

Witters, supra, 474 U.S. 492 (Powell, concurring).

Locke barely survives as good law today—but it

is strictly limited to its facts. Like Witters, Locke

involved a student who was studying theology at a

religious college. This Court held that even though

this form of theological education could be funded

consistently with the Establishment Clause, the

several states are permitted to have a stricter “no

establishment” rule but only vis-à-vis formal

theological education to train pastors and similar

religious vocational positions. This narrowing of

Locke was announced first in Espinoza v. Montana

Dep't of Revenue, 591 U.S. 464, 479 (2020) and was

dramatically reinforced by Carson as next friend of O.

C. v. Makin, 596 U.S. 767, 788 (2022).

This Court’s observation concerning the Second

Circuit’s total failure to discuss relevant precedent in

Good News Club v. Milford Cent. Sch., 533 U.S. 98,

109 (fn.3) (2001) (“We find it remarkable that the

Court of Appeals majority did not cite Lamb's Chapel,

despite its obvious relevance to the case”) seems

applicable here. Misusing Locke, while failing to

discuss or follow Mueller, Witters, Zobrest, Zelman,

Espinoza, and Carson, is indeed remarkable. If the

lower court wanted to distinguish these cases on some

factual or legal ground, that would be a different

matter. But the failure to address these cases in their

discussion of the Establishment Clause is telling.

This Court has firmly shut the door on the idea

that discrimination against religious individuals or

organizations may be justified by pointing to the

Establishment Clause. That door should remain

tightly closed.

Conclusion

For the foregoing reasons, this Court should

reverse the holding of the Oklahoma Supreme Court

that the First Amendment’s Establishment Clause

requires the exclusion of religious schools from its

charter school program.

Respectfully submitted,