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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NO. 24-394, 24-396

IN THE

Supreme Court of the United States

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, et al.,

Petitioners,

GENTNER DRUMMOND, Attorney General of

Oklahoma, ex rel. OKLAHOMA,

Respondents

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

GENTNER DRUMMOND, Attorney General of

Oklahoma, ex rel. OKLAHOMA,

Respondents.

On Writs of Certiorari to the

Supreme Court of Oklahoma

___________________________________

BRIEF OF WORLD FAITH FOUNDATION AND

NC VALUES INSTITUTE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

TAMI FITZGERALD

NC VALUES INSTITUTE

9650 Strickland Rd.

Suite 103-226

Raleigh, NC 27615

DEBORAH J. DEWART

111 Magnolia Lane

Hubert, NC 28539

JAMES L. HIRSEN

Counsel of Record

505 S. Villa Real

Suite 101

Anaheim, CA 92807

(714) 283-8880

james@jameshirsen.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

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

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

INTRODUCTION AND SUMMARY OF

THE ARGUMENT....................................................... 2

ARGUMENT ............................................................... 2

ST. ISIDORE IS NOT A STATE ACTOR ..…..2

A. Statutory labels do not control. ................ 4

B. State action is not established by

government funding, regulations, or

contract. ..................................................... 5

II.

OKLAHOMA HAS NOT DELEGATED AN

EXCLUSIVELY PUBLIC FUNCTION..……...9

A. Education is not an exclusively public

function. ..................................................... 9

B. The very purpose of charter schools is

to enhance available educational

choices. Public and private educational

alternatives remain widely available. .... 12

III.

OKLAHOMA’S

ACCOMMODATION

RELIGIOUS CHARTER SCHOOLS DOES

NOT

EVADE

THE

STATE’S

CONSTITUTIONAL DUTIES BUT RATHER

FACILITIES

THE

EXERCISE

CONSTITUTIONAL RIGHTS..………………14

A. Oklahoma has not improperly delegated

any of its constitutional duties. .............. 14

B. Oklahoma has not evaded any of its

constitutional duties. ............................... 18

C. Accommodation of religious charter

schools aligns with this Court’s trend

toward nondiscrimination principles in

Establishment Clauses cases. .................. 24

CONCLUSION ......................................................... 34

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abington School District v. Schempp,

374 U.S. 203 (1963) ............................................. 18

Agostini v. Felton,

521 U.S. 203 (1997) ............................................. 32

Am. Legion v. Am. Humanist Ass'n,

588 U.S. 19 (2019) ............................................... 24

Americans United for Separation of Church & State v.

Prison Fellowship Ministries, Inc.,

509 F.3d 406 (8th Cir. 2007) ................................. 7

Barghout v. Bureau of Kosher Meat & Food Control,

66 F.3d 1337 (4th Cir. 1995) ................... 15, 16, 17

Bd. of Educ. of Kiryas Joel Village School District v.

Grumet,

512 U.S. 687 (1994) ..................... 13, 14, 15, 16, 17

Bowen v. Kendrick,

487 U.S. 589 (1988) ............................................. 16

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass'n,

531 U.S. 288 (2001) ....................................... 2, 4, 5

Blum v. Yaretsky,

457 U.S. 991 (1982) ................. 3, 5, 6, 8, 10, 11, 29

Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) ................................. 18, 19, 23

Carson v. Makin,

596 U.S. 767 (2022) ........................... 25, 31, 32, 33

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ............................................. 31

Commack Self-Service Kosher Meats, Inc. v. Weiss,

294 F.3d 415 (2d Cir. 2002) .................... 15, 16, 17

Committee for Public Education and Religious Liberty

v. Nyquist,

413 U.S. 756 (1973) ................................. 19, 21, 25

Cooper v. U.S. Postal Service,

577 F.3d 479 (2d Cir. 2009) ................................ 18

Corp. of the Presiding Bishop v. Amos,

483 U.S. 327 (1987) ............................................. 30

Drummond ex rel. State of Okla. v. Okla. Statewide

Virtual Charter Sch. Bd.,

558 P.3d 1 (Okla. 2024)... 3-7, 10, 22-23, 29, 33-34

Edwards v. Aguillard,

482 U.S. 578 (1987) ............................................. 28

Engel v. Vitale,

370 U.S. 421 (1962) ............................................. 28

Epperson v. Arkansas,

393 U.S. 97 (1968) ............................................... 28

Espinoza v. Mont. Dep't of Revenue,

591 U.S. 464 (2020) ............... 21, 25, 31, 32, 33, 34

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) ..................................... 21, 25, 31

Flagg Brothers, Inc. v. Brooks,

436 U.S. 149 (1978) ............................................. 11

Griffin v. County School Board,

377 U.S. 218 (1964) ............................................. 20

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ................. 3, 5, 7, 8, 10-12, 21,

23, 24, 29

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) ............................................. 34

Larkin v. Grendel's Den, Inc.,

459 U.S. 116 (1982) ........................... 14, 15, 17, 18

Lee v. Weisman,

505 U.S. 577 (1992) ....................................... 24, 28

Logiodice v. Trustees of Maine Cent. Inst.,

296 F.3d 22 (1st Cir. 2002) ................................... 9

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ............................................... 3

Lynch v. Donnelly,

465 U.S. 668 (1984) ....................................... 16, 25

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ..................... 2, 3, 7, 10, 11, 23

Marsh v. Alabama,

326 U.S. 501 (1946) ............................................. 11

Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights

Comm'n,

584 U.S. 617 (2018) ............................................. 34

Mitchell v. Helms,

530 U.S. 793 (2000) ................................. 27, 31, 32

Mueller v. Allen,

463 U.S. 388 (1983) ................................... 9, 13, 32

Peltier v. Charter Day School, Inc.,

37 F.4th 104 (4th Cir. 2022),

cert. denied, 143 S. Ct. 2657 (2023) ......... 2, 3, 4, 9,

10, 12, 13, 14, 19, 22, 23

People ex rel. Vollmar v. Stanley,

255 P. 610 (Colo. 1864) ....................................... 28

Perkins v. Londonderry Basketball Club,

196 F.3d 13 (1st Cir. 1999) ................. 5, 11, 18, 29

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ....................................... 14, 20

Polk County v. Dodson,

454 U.S. 312 (1981) ............................................... 4

vii

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) .................... 5, 6, 8, 10, 11, 12,

21, 23, 30

Roemer v. Bd. of Pub. Works of Md.,

426 U.S. 736 (1976) ............................................. 28

Santa Fe. Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ............................................. 16

Santiago v. Puerto Rico,

655 F.3d 61 (1st Cir. 2011) ................................. 28

Stone v. Graham,

449 U.S. 39 (1980) ............................................... 28

Terry v. Adams,

345 U.S. 461 (1953) ............................................. 11

Thomas v. Review Bd.,

450 U.S. 707 (1981) ............................................. 31

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

582 U.S. 449 (2017) ................................. 25, 31, 32

Trustees of Dartmouth Coll. v. Woodward,

17 U.S. (4 Wheat.) 518 (1819)............................. 10

Van Orden v. Perry,

545 U.S. 677 (2005) ............................................. 26

Walz v. Tax Comm’n of New York,

397 U.S. 664 (1970) ............................................. 24

viii

West v. Atkins,

487 U.S. 42 (1988) ....................................... 7, 8, 22

Widmar v. Vincent,

454 U.S. 263 (1981) ............................................. 25

Witters v. Wash. Dep’t of Servs. for the Blind,

474 U.S. 481 (1986) ................................. 13, 25, 32

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ....................................... 14, 28

Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993) ........................................... 13, 32

Zorach v. Clauson,

343 U.S. 306 (1952) ................................. 16, 26, 27

Statutes

N.C.G.S. § 115C-218.90(a)(4) ...................................... 4

N.C.G.S. § 115C-218(a)(5) ......................................... 13

N.C.G.S. § 115C-218.45(a)-(b) ................................... 13

70 O.S. 2021, § 3-131(A) ............................................ 12

70 O.S. 2021, § 3-135(A)(12), (14), (15) ....................... 5

70 O.S. Supp. 2022, § 3-132 ...................................... 26

70 O.S. Supp. 2022, § 3-132(D) ............................... 4, 7

Constitutional Provisions

Okla. Const. art. 1, § 5 .............................................. 33

Okla. Const. art. 13, § 1 ............................................ 22

Article I, Section 8 ..................................................... 18

Other Authorities

William W. Bassett, Changing Perceptions of Private

Religious Schools: Public Money and Public Trust in

the Education of Children,

2008 BYU L. Rev. 243 (2008) ............................. 27

Jonathan D. Boyer, Education Tax Credits: School

Choice Initiatives Capable of Surmounting Blaine

Amendments,

43 Colum. J.L. & Soc. Probs. 117 (2009) ............ 20

Ryan A. Doringo, Comment: Revival: Toward a

Formal

Neutrality

Approach

Economic

Development Transfers to Religious Institutions,

46 Akron L. Rev. 763 (2013) ............................... 28

Developments in the Law: State Action and the

Public/Private Distinction: The State Action Doctrine

and the Establishment Clause,

123 Harv. L. Rev. 1278 (2010) ............................ 24

Douglas Laycock, Why the Supreme Court Changed Its

Mind About Government Aid to Religious Institutions:

It's a Lot More than Just Republican Appointments,

2008 BYU L. Rev. 275 (2008) ............................. 20

Douglas Laycock, Comment, Theology Scholarships,

The Pledge of Allegiance, and Religious Liberty:

Avoiding the Extremes but Missing the Liberty,

118 Harv. L. Rev. 155 (2004) ........................ 25, 30

INTEREST OF AMICI CURIAE1

Amici curiae respectfully urge this Court to

reverse the Oklahoma Supreme Court ruling.

World Faith Foundation (“WFF”) is a California

religious non-profit corporation established to

preserve and defend the customs, beliefs, values, and

practices of religious faith and speech, as guaranteed

by the First Amendment, through education, legal

advocacy, and other means. James L. Hirsen, WFF’s

founder, has served as professor of law at Trinity Law

School and Biola University in Southern California

and is the author of New York Times bestseller, Tales

from the Left Coast, and Hollywood Nation. Mr.

Hirsen is a frequent media commentator who has

taught law school courses on constitutional law. WFF

has made numerous appearances in this Court as

amicus curiae.

NC Values Institute, formerly known as the

Institute for Faith and Family, is a North Carolina

nonprofit corporation that works in various arenas of

public policy to protect faith, family, and freedom,

including the right to school choice. See

https://ncvi.org.

1 Amici curiae certify that no counsel for a party authored this

brief in whole or in part and no person or entity, other than

amici, their members, or their counsel, has made a monetary

contribution to its preparation or submission.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Charter schools expand educational choices and

facilitate the exercise of constitutional rights without

evading the State’s constitutional duties. Many

parents are dissatisfied with traditional public schools

and prefer to enroll their children in schools that align

with their religious faith and values. But Oklahoma

uses a nonsectarian mandate to exclude schools many

would otherwise choose. The State uses statutory

labels to warp the state action doctrine and exploits

flawed, outdated Establishment Clause principles to

obscure the reality of its charter school program and

sharply curtail available school choices.

ARGUMENT

ST. ISIDORE IS NOT A STATE ACTOR.

The state-action doctrine “protects a robust

sphere of individual liberty” by distinguishing and

enforcing the boundary between government and

private conduct. Manhattan Cmty. Access Corp. v.

Halleck, 587 U.S. 802, 808 (2019); see Brentwood

Academy v. Tennessee Secondary Sch. Ath. Ass'n, 531

U.S. 288, 295-296 (2001). There is no “bright-line rule”

for this “highly fact-specific” inquiry. Peltier v.

Charter Day School, Inc., 37 F.4th 104, 116 (4th Cir.

2022). Even this Court’s precedent “lacks a neat

analytical structure.” Id. at 141 (Quattlebaum, J.,

dissenting). There is “no one fact [that] can function

as a necessary condition across the board” nor is “any

set of circumstances absolutely sufficient.” Brentwood

Academy, 531 U.S. at 295-296. State action is not

established by extensive funding, regulations, or the

existence of a government contract.

This Court has identified three major tests: (1)

“exclusive public function,” Jackson v. Metropolitan

Edison Co., 419 U.S. 345, 352-354 (1974); (2)

government coercion, Blum v. Yaretsky, 457 U.S. 991,

1004-1005 (1982); (3) joint participation between

government and a private entity, Lugar v.

Edmondson Oil Co., 457 U.S. 922, 941-942 (1982).

Manhattan, 587 U.S. at 809. The Oklahoma Supreme

Court

discerned

five

tests

–

“significant

encouragement,” “willful participant in joint activity,”

“government control,” “entwinement,” and “public

function.” Drummond ex rel. State of Okla. v. Okla.

Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 28

(Okla. 2024).

Until recently, when the Fourth Circuit found a

North Carolina charter school to be a state actor for

purposes of an alleged equal protection violation,

“neither [this] Court nor any federal appellate court

had concluded that a publicly funded private or

charter school is a state actor under § 1983.” Peltier,

37 F.4th at 137 (Quattlebaum, J., dissenting). The

Oklahoma Supreme Court relied heavily on Peltier to

disqualify St. Isidore, raising the added complications

of the Religion Clauses because of the school’s

religious character.

None of these tests render St. Isidore a state actor.

Education is not an exclusively public function.

Oklahoma has not improperly delegated its own

constitutional duties to a private charter school.

Oklahoma and St. Isidore do not have an

interdependent, entwined relationship. The Charter

Board’s accommodation of St. Isidore's religious

convictions does not constitute the coercion or

substantial encouragement required for state action,

nor does it enable Oklahoma to evade its

constitutional duties. The charter school statutory

scheme, applied equally to secular and religious

schools, enhances choice and facilitates the exercise of

parental and religious freedom rights.

A. Statutory labels do not control.

This Court has already clarified that “statutory

designations do not make a private actor's conduct

state action.” Peltier, 37 F.4th at 145 (Quattlebaum,

J., dissenting), citing Jackson, 419 U.S. at 350 n.7

(utility company); Polk County v. Dodson, 454 U.S.

312, 324 (1981) (public defender). The reverse is also

true—the “nominally private character” of an entity

may be “overborne by the pervasive entwinement of

public institutions and public officials in its

composition and workings.” Brentwood, 531 U.S. at

298. Labeling “charter schools” as “public schools”

established by contract (70 O.S. Supp. 2022, § 3132(D)) is insufficient. The Fourth Circuit played the

same word games in Peltier—"charter schools are

public schools” and their employees are “public school

employees." N.C.G.S. § 115C-218.90(a)(4) (emphasis

added). Peltier, 37 F.4th at 117. The reality is that

Oklahoma has extended “an invitation for private

entities to contract to provide educational choices.”

Drummond, 558 P.3d at 17 (Kuehn, J., dissenting).

B. State action is not established by

government funding, regulations, or

contract.

A private entity's conduct may be state action "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, 531 U.S. at 295 (emphasis

added); Jackson, 419 U.S. at 351; Perkins v.

Londonderry Basketball Club, 196 F.3d 13, 19 (1st

Cir. 1999). This "close nexus" must exist between the

state and the alleged violation, not merely between

the government and a private actor. This is "[t]he one

unyielding requirement." Brentwood, 531 U.S. at 295.

Neither funding, nor regulation, nor the mere

existence of a contract is sufficient. "That programs

undertaken by the State result in substantial funding

of the activities of a private entity is no more

persuasive than the fact of regulation of such an entity

in demonstrating that the State is responsible for

decisions made by the entity in the course of its

business." Blum, 457 U.S. at 1011.

Funding. Oklahoma charter schools receive funds

according to “statutory requirements and guidelines

for existing public schools," and employees receive

benefits comparable to public school employees.

Drummond, 558 P.3d. at 10; 70 O.S. Supp. 2021, § 3135(A)(12), (14), (15). But even substantial

government funding does not establish the required

“close nexus.” See Rendell-Baker v. Kohn, 457 U.S.

830, 80 (1982) ("[W]e conclude that the school's receipt

of public funds does not make the discharge decisions

acts of the State.").

Even where a private entity receives virtually all

its funding from the government, this Court has

rejected the argument that there is an interdependent

relationship giving rise to state action. See, e.g., Blum,

457 U.S. at 1027-1028 (Brennan, J., dissenting) ("The

State subsidizes practically all of the operating and

capital costs of the facility, and pays the medical

expenses of more than 90% of its residents."); RendellBaker, 457 U.S. at 847 (Marshall, J., dissenting) ("The

New Perspectives School receives virtually all of its

funds from state sources."). This Court found an

absence of state action and therefore rejected an

employee’s free speech challenge where a private

school received 99% of its funding from the

government. Rendell-Baker, 457 U.S. at 836-837.

Private schools do not morph into state actors no

matter how much state funding flowed to them. "A

private party cannot be transformed into a state actor

simply because it is paid with government funds for

providing a service." Santiago v. Puerto Rico, 655 F.3d

61, 72 (1st Cir. 2011).

Regulation. The Charter School Board “exercises

significant ongoing oversight and evaluation of all

sponsored virtual charter schools” and may remedy

deficiencies or even close a school. Drummond, 558

P.3d. at 10. But extensive regulation per se is

insufficient. Blum, 457 U.S. at 1004-05; RendellBaker, 457 U.S. at 840-841. In a leading case on point,

the “fact that a business is subject to state regulation

does not by itself convert its action into that of the

State.” Manhattan, 815, quoting Jackson, 419 U.S. at

350. Even “a heavily regulated, privately owned

utility, enjoying at least a partial monopoly in the

providing of electrical service within its territory,” is

not a state actor. Id. at 358. The “mere existence” of a

“regulatory scheme”—even if “extensive and

detailed”—did not render the utility a state

actor. Id. at 350 and n. 7.

The presence of state action may hinge on the

availability of other options. A physician retained by

the state to treat inmates was deemed a state actor

because incarceration restricts the prisoners' ability

to seek medical care elsewhere. West v. Atkins, 487

U.S. 42, 55 (1988); see also Americans United for

Separation of Church & State v. Prison Fellowship

Ministries, Inc., 509 F.3d 406, 425-426 (8th Cir. 2007)

(prisoners had no alternatives to the religious

rehabilitation program contracted by the state). But

where a student enjoys a statutory right to

transportation to and from school—yet has other

options available—the actions of a private

transportation company are not attributed to the

state. Santiago, 655 F.3d at 70. Here, no student is

coerced into attending a particular school. Many

choices are available—the very purpose of creating

charter schools.

Contract. Charter schools are “established by

contract with a school district or other governmental

entity. See 70 O.S. Supp. 2022, § 3-132(D).”

Drummond, 558 P.3d. at 10. These schools are among

the “[n]umerous private entities in America [that]

obtain . . . government contracts.” Manhattan, 587

U.S. at 814. “[I]f th[at] fact[] sufficed to transform a

private entity into a state actor, a large swath of

private entities in America would suddenly be turned

into state actors . . . subject to a variety of

constitutional constraints,” but “that is not the law.”

Id. at 814-815. St. Isidore and other charter schools

are private corporations that contract with Oklahoma

to provide education to its citizens.

An instructive line of government contract cases

addresses state action. See, e.g., Rendell-Baker, 457

U.S. at 838 (private school teacher terminated for her

speech); Blum, 457 U.S. at 993 (nursing home

transferred Medicaid patients); Jackson, 419 U.S. at

351 (private utility terminated services for nonpayment); West v. Atkins, 487 U.S. at 54 (contract

physician treated state inmates). The contractual

relationship may generate litigation alleging that the

private contractor's conduct should be attributed to

the government. The common thread is the existence

of a contract between the government and a private

entity, raising the issue of whether the private

contractor's conduct can be imputed to the state for

constitutional purposes. To establish state action, the

private party's conduct must be "fairly attributable to

the state." The challenged actions in Rendell-Baker

involved personnel decisions at a private institution,

matters beyond the state's regulation and thus not

“fairly attributable to the State.” 457 U.S. at 841-42.

"Acts of such private contractors do not become acts of

the government by reason of their significant or even

total engagement in performing" contractual services

for government entities. Id. at 840-41.

II. OKLAHOMA HAS NOT DELEGATED AN

EXCLUSIVELY PUBLIC FUNCTION.

St. Isisdore cannot be classified as a “state actor”

under this Court’s precedents unless the State has

delegated an exclusively public function to it.

A. Education is not an exclusively public

function.

Education existed in America long before the

advent of public schools. "Education is not and never

has been a function reserved to the state." Logiodice

v. Trustees of Maine Cent. Inst., 296 F.3d 22, 26-27 (1st

Cir. 2002). This Court should affirm its own abundant

precedent. “Supreme Court precedent is not like the

green vegetables on a buffet line that we can simply

pass by for more dessert.” Peltier, 37 F.4th at 148

(Quattlebaum, J., dissenting). Very few functions

meet the demanding test for exclusivity, and

education is not among them.

Private entities may cooperate with government

in providing education and receive funding without

being deemed state actors. The encouragement of

private schools is constitutional and furthers the goal

of making quality education widely accessible. “An

educated populace is essential to the political and

economic health of any community,” and accordingly,

assisting families with the cost helps “ensur[e] that

the State's citizenry is well educated.” Mueller v.

Allen, 463 U.S. 388, 395 (1983).

The Oklahoma Supreme Court admits that

education “may not be a traditionally exclusive public

function,” but the court plays word games—“the

Oklahoma Constitutional provision for free public

education is exclusively a public function.”

Drummond, 558 P.3d at 12. The court fell down the

slippery slope of the Fourth Circuit, which found a

charter school, “operating a school that is part of the

North Carolina public school system,” was

“perform[ing] a function traditionally and exclusively

reserved to the state.” Peltier, 37 F.4th at 119. This

circular characterization “assum[es] the answer to the

very question asked.” Id. at 154 (Wilkinson, J.,

dissenting); see Trustees of Dartmouth Coll. v.

Woodward, 17 U.S. (4 Wheat.) 518, 638 (1819) ("From

the fact, then, that a charter of incorporation has been

granted, nothing can be inferred, which changes the

character of the institution, or transfers to the

government any new power over it.")

Exclusivity is the critical qualifier. The “public

function” test requires showing "the private entity

performs a traditional, exclusive public function."

Manhattan, 587 U.S. at 809 (emphasis added). The

fact “that a private entity performs a function which

serves the public . . . does not make its acts state

action.” Rendell-Baker, 457 U.S. at 842 (educating

maladjusted students). The function must have

traditionally been "the exclusive prerogative of the

State." Ibid., citing Jackson, 419 U.S. at 353; quoted

in Blum, 457 U.S. at 1011 (emphasis added).

Exclusivity is a high bar that “very few” functions

meet. Manhattan, 587 U.S. at 809. "While many

functions have been traditionally performed by

governments, very few have been exclusively reserved

to the State." Flagg Brothers, Inc. v. Brooks, 436 U.S.

149, 158 (1978) (internal quotation marks omitted)

(emphasis added). Running elections is one.

Terry v. Adams, 345 U.S. 461, 468-470 (1953).

Operating

company

town

another.

Marsh v. Alabama, 326 U.S. 501, 505-509 (1946). But

many functions fail—sports associations, insurance

payments, nursing homes, special education, criminal

defense (indigents), private dispute resolution,

electricity. Manhattan, 587 U.S. at 810 (collecting

cases).

The absence of exclusivity precludes state action:

Rendell-Baker, 457 U.S. at 842 (education of

maladjusted students); Jackson, 419 U.S. at 353

(regulated utilities); Blum, 457 U.S. at 1011 (nursing

homes); Santiago, 655 F.3d at 70 (student

transportation); Perkins, 196 F.3d at 19 (amateur

sports program).

Even utilities, admittedly an “essential public

service,” are not the exclusive province of the state.

Jackson, 419 U.S. at 352. Justice Douglas argued in

dissent that the actions of a "monopolist providing an

essential

public

service"

were

"sufficiently

intertwined with those of the State" to find state

action." Id. at 362 (Douglas, J., dissenting). Justice

Marshall asserted that the private utility company

"supplie[d] an essential public service that is in many

communities supplied by the government." Id. at 371

(Marshall, J., dissenting). But the majority insisted

state action requires that a private entity exercise

"powers traditionally exclusively reserved to the

State." Id. at 352 (emphasis added). If the essential

public services in Rendell-Baker (education) and

Jackson (utilities) are not exclusively public functions,

then surely the same is true of Oklahoma’s charter

schools.

B. The very purpose of charter schools is to

enhance available educational choices.

Public

and

private

educational

alternatives remain widely available.

Exclusivity, by definition, implies the absence of

alternatives. Even a cursory look at the Oklahoma

Charter Schools Act reveals that creating alternatives

is at the core of its purposes—“increase learning

opportunities,” “encourage the use of different and

innovative teaching methods,” “provide additional

academic choices for parents and students,” and other

similar goals. 70 O.S. Supp. 2021, § 3-131(A). Charter

schools are not alternatives to public schools if they

are public schools. Both religious and independent

private schools “by their very nature provide diverse

alternative curriculums and methods.” Peltier, 37

F.4th at 144 (Quattlebaum, J., dissenting). The

Oklahoma Supreme Court and Fourth Circuit rulings

threaten to “transform[] all charter schools . . . into

state actors.” Id. at 137 (Quattlebaum, J., dissenting).

That would squelch “innovative alternatives to

traditional public education,” limiting choices

available to parents—not only in one or two states but

across the nation. Ibid. Such an expansive view of

state action would “drape a pall of orthodoxy over

charter schools and shift educational choice and

diversity into reverse.” Id. at 150 (Wilkinson, J.,

dissenting).

The goal of charter schools is to "[p]rovide parents

and students with expanded choices in the types of

educational opportunities that are available within

the public school system." Peltier, 37 F.4th at 138

(Quattlebaum, J., dissenting), citing N.C.G.S. § 115C218(a)(5). In Peltier, any child eligible for public school

had the option to select a charter school, “but no one

had to attend one.” Id. § 115C-218.45(a)-(b) (emphasis

added). The same is true in Oklahoma. Private

nonprofit corporations, not local public school boards,

operate charter schools according to each school’s

charter—the contract between the school and the

state, incorporating federal and state constitutional

protections.

This Court once stated that "[a]uthority over

public schools belongs to the State." Bd. of Educ. of

Kiryas Joel Village School District v. Grumet, 512 U.S.

687, 698 (1994). But the special school district in

Grumet subjected all families in the district to a

religiously controlled public school system. Oklahoma

families have a wide spectrum of choices with no

coercion on the horizon. The uncoordinated choices of

parents are hardly tantamount to exclusive

government authority over public education.

This case is consistent with cases involving

religious schools. In Mueller, 463 U.S. 388, Witters v.

Wash. Dep’t of Servs. for the Blind, 474 U.S. 481

(1986), and Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993) "[t]he incidental advancement of a

religious mission, or the perceived endorsement of a

religious message, [was] reasonably attributable to

the individual recipient, not to the government, whose

role ends with the disbursement of benefits." Zelman

v. Simmons-Harris, 536 U.S. 639, 652 (2002).

Oklahoma authorizes the creation of charter schools,

thereby enabling parental choices—but then takes its

hands off the wheel.

This case is analogous to Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925), where the choice was between

public and private (or parochial) schools. Pierce,

Peltier, and this case all “stand for the baseline

proposition that parents have some right ‘to choose

how and in what manner to educate their children.’"

Peltier, 37 F.4th at 154 (Wilkinson, J., dissenting),

quoting Zelman, 536 U.S. at 680 n.5 (Thomas, J.,

concurring). Oklahoma offers families many choices.

III. OKLAHOMA’S

ACCOMMODATION

RELIGIOUS CHARTER

SCHOOLS DOES

NOT

EVADE

THE

STATE’S

CONSTITUTIONAL DUTIES BUT RATHER

FACILITIES

THE

EXERCISE

CONSTITUTIONAL RIGHTS.

A. Oklahoma has not improperly delegated

any of its constitutional duties.

"[A] State may not delegate its civic authority to a

group chosen according to a religious criterion."

Grumet, 512 U.S. at 698, quoting Larkin v. Grendel's

Den, Inc., 459 U.S. 116, 126 (1982). This thread runs

consistently throughout relevant federal case law.

The delegation cases involve more than "mere

acquiescence" or accommodation. Each one implicates

a legal mandate that some exclusively public function

be delegated to an organization or person on the basis

of religious identity: Grumet, 512 U.S. at 690 (state

statute); Larkin, 459 U.S. at 122 (state statute);

Barghout v. Bureau of Kosher Meat & Food Control,

66 F.3d 1337, 1338-39 (4th Cir. 1995) (city ordinance);

Commack Self-Service Kosher Meats, Inc. v. Weiss,

294 F.3d 415, 418 (2d Cir. 2002) (state statutory

scheme). This case involves no comparable mandate.

In Grumet, the government intentionally drew

village boundaries to exclude all but the religious

enclave of Satmar Hasidim, thus carving out a special

school district to serve solely this religious

community. 512 U.S. at 690. This Court found that

action "tantamount to an allocation of political power

on a religious criterion." Ibid. The government had

"delegat[ed] the State's discretionary authority over

public schools to a group defined by its character as a

religious community." Id. at 696.

In Larkin, a statute expressly delegated zoning

powers to churches by granting them absolute veto

power over liquor license applications. 459 U.S. at

125. The zoning function, including the "power to veto

certain liquor license applications,” is “a power

ordinarily vested in agencies of government.” Id. at

121-122.

In Barghout, "investigative, interpretive, and

enforcement power" was vested "in a group of

individuals [ordained Orthodox Rabbis] based on their

membership in a specific religious sect." Barghout, 66

F.3d at 1342 (bureau created to enforce prohibition on

fraudulent sale of kosher food).

In Commack, a New York statute prohibited the

fraudulent sale of kosher food, tying its definition to

religious doctrine—"prepared in accordance with the

orthodox Hebrew religious requirements." Commack,

294 F.3d at 418.

Oklahoma’s case is not like these or other cases

where civic authority is delegated to an organization

because of its religious identity, creating a "fusion" of

church and state that violates the Establishment

Clause. There is no “fusion of church and state” in

Oklahoma’s charter school scheme—“the difference

lies in the distinction between a government's

purposeful delegation on the basis of religion and a

delegation on principles neutral to religion, to

individuals whose religious identities are incidental to

their receipt of civic authority.” Grumet, 512 U.S. at

699 (emphasis added).

Religious organizations may serve the public and

even use government funds to do so. They need not be

quarantined or disabled from participating in

government-financed programs, including education.

Bowen v. Kendrick, 487 U.S. 589, 609 (1988); Roemer

v. Bd. of Pub. Works of Md., 426 U.S. 736, 746 (1976)

("[T]he State may send a cleric . . . to perform a wholly

secular task."). On the contrary, exclusion sends a

message of "callous indifference" never intended by

the Establishment Clause. Lynch v. Donnelly, 465

U.S. 668, 673 (1984), citing Zorach v. Clauson, 343

U.S. 306, 314 (1952). The Constitution "affirmatively

mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any." Ibid.

It is only when a private religious entity performs

an exclusively public function that its conduct may

morph into state action and risk violating the

Establishment Clause. State action is easily identified

in Grumet, Larkin, Barghout, and Commack, where

an exclusively public function is delegated to a group

defined by religious criteria. St. Isidore was not

granted its charter because of its religious affiliation;

the critical exclusivity factor is absent. The public

function test ensures that government does not avoid

its constitutional duties. Accommodation of a religious

organization’s doctrine does not obstruct that purpose

but rather facilitates First Amendment principles.

Religious accommodation stands in stark contrast

to a state’s avoidance of its constitutional duties. The

Charter Board negotiated terms with St. Isidore

based on its ability to effectively administer the

charter school program—not its religious identity.

Although the act of awarding the contract and

granting the accommodation are state actions, the

private conduct being accommodated is not thereby

imputed to the government. The contract merely

allows St. Isidore to perform in a manner consistent

with its religious doctrine. This static position departs

from the ongoing exercise of discretion that doomed

the laws at issue in Grumet, Larkin, Barghout, and

Commack. Treating St. Isidore differently because of

its religious status would spark hostility the

Establishment Clause was never meant to create.

In some government contract cases, Establishment

Clause violations have occurred because of express

religious content. Cooper v. U.S. Postal Service

involved a religious display in a contract postal unit.

577 F.3d 479 (2d Cir. 2009). "Article I, Section 8 of the

Constitution provides that Congress shall have power

. . . [t]o establish Post Offices and post Roads" (id. at

485) and "Congress granted to the USPS the exclusive

duty to create and operate Post Offices. . ." (id. at 492).

Prison Fellowship Ministries implicated a Christian

rehabilitation program operated inside a state prison.

"[T]he state effectively gave InnerChange its 24-hour

power to incarcerate, treat, and discipline inmates."

509 F.3d at 423. In both cases, a private entity

performed an exclusively government function.

Unlike these cases, St. Isidore’s relationship with

the State is contractual—not the prohibited "fusion of

governmental and religious functions" that forms the

"core rationale underlying the Establishment Clause."

Larkin, 459 U.S. at 126-127, quoting Abington School

District v. Schempp, 374 U.S. 203, 222 (1963). Such a

contract does not "enmesh churches in the exercise of

substantial governmental powers. . . ." Larkin, 459

U.S. at 126.

B. Oklahoma has not evaded any of its

constitutional duties.

“The public function analysis is designed to flush

out a State's attempt to evade its responsibilities by

delegating them to private entities.” Perkins, 196 F.3d

at 18-19. Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961) is a template for such evasion. The

government tried to evade its constitutional

responsibilities by leasing a restaurant to a private

entity rather than operating it directly. The

restaurant's racial discrimination was attributed to

the government. "[N]o State may effectively abdicate

its responsibilities by either ignoring them or by

merely failing to discharge them whatever the motive

may be . . . ." Burton, 365 U.S. at 725. The government

may not "accommodate" racial discrimination. Here,

Oklahoma's accommodation of religion facilitates the

exercise of constitutional rights, including religious

liberty and parental rights to direct the education of

their children. Oklahoma did not evade its

responsibility for education because it “never stopped

providing a public school system free to all. . . .

Providing an option of charter schools does not mean

that [Oklahoma] delegated its obligation to provide a

public education system.” Peltier, 37 F.4th at 146-147

(Quattlebaum, J., dissenting) (emphasis added).

Unlike past cases that facilitated practices like

racial segregation—in defiance of the Constitution—

Oklahoma accommodates religious freedom and

parental rights. The broad array of choices permitted

to families serves the Establishment Clause goal of

protecting against coerced financial support of

religion. "[W]here the state law is genuinely directed

at enhancing a recognized freedom of individuals . . .

such as the right of parents to send their children to

private school . . . the Establishment Clause no longer

has a prohibitive effect." Committee for Public

Education and Religious Liberty v. Nyquist, 413 U.S.

756, 802 (1973) (Burger, C.J., dissenting) (emphasis

added).

Oklahoma’s charter school scheme facilitates the

exercise of parental and religious rights, not the denial

of rights like equal protection and freedom from

discrimination. Decades ago, "[t]he prospect of

subsidized private schools threatened to aggravate

the difficulties of desegregation by expanding the

avenues for white flight." Douglas Laycock, Why the

Supreme Court Changed Its Mind About Government

Aid to Religious Institutions: It's a Lot More than Just

Republican Appointments, 2008 BYU L. Rev. 275, 285

(2008). This Court rightly struck down schemes to

deny equal protection and access to public education

by diverting public funds to racially discriminatory

private schools. Griffin v. County School Board, 377

U.S. 218, 233 (1964) (injunction against tuition grants

and tax credits to such schools). In Griffin, tax credits

enabled denial of rights to public education and equal

protection. In Oklahoma, the broad range of charter

schools enables the exercise of parental and religious

rights without trampling any other rights.

Education is compulsory for school-aged children,

but "[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, 268

U.S. at 535. Many families cannot afford the tuition

for an education compatible with their beliefs.

Oklahoma's program is a permissible accommodation

that opens doors for such families. Ever since the

initiation of public schooling and compulsory

education laws, it has been desirable to facilitate

choices. Jonathan D. Boyer, Education Tax Credits:

School Choice Initiatives Capable of Surmounting

Blaine Amendments, 43 Colum. J.L. & Soc. Probs. 117,

119 (2009). Justices in both Everson and Nyquist

expressed sympathy for the double burden borne by

parents who place children in private schools while

supporting public schools with their taxes. Everson v.

Bd. of Educ., 330 U.S. 1, 18 (1947) (Jackson, J.,

dissenting); see Nyquist, 413 U.S. at 788-789. "[I]t is

no more than simple equity to grant partial relief to

parents who support the public schools they do not

use." Nyquist, 413 U.S. at 803 (Burger, J., concurring

in part and dissenting in part). It is true today that

“many parents of many different faiths still

believe that their local schools inculcate a worldview

that is antithetical to what they teach at home.”

Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464, 508

(2020) (Alito, J., concurring). Charter schools and

other innovative options “help[] parents of modest

means do what more affluent parents can do: send

their children to a school of their choice.” Ibid.

Contrary to this Court’s precedent, the Oklahoma

Supreme Court insists that approval of St. Isidore’s

charter would improperly delegate the state’s

constitutional duty to provide free public education—

in other words, evade the State’s constitutional duties.

That position is more consistent with dissenting

opinions in Rendell-Baker and Jackson than the

Court’s affirmative rulings. The Rendell-Baker

dissent argued that "[t]he State ha[d] delegated . . . its

statutory duty to educate children." Rendell-Baker,

457 U.S. at 844 (Marshall, J., dissenting). The

majority was not persuaded, even though "the State is

required to provide a free education to all children,

including those with special needs." Id. at 848

(Marshall, J., dissenting). The Oklahoma Supreme

Court tracks these dissents—“the Oklahoma

Legislature has a constitutional duty to establish a

system of free public schools.” Drummond, 558 P.3d at

3; Okla. Const. art. 13, § 1. “St. Isidore will implement

a religious curriculum and activities that directly

impact the school's core education function.”

Drummond, 558 P.3d at 13. Characterizing St. Isidore

as a “surrogate of the State,” the court branded the

school as “a governmental entity and state actor.” Id.

at 11.

The Fourth Circuit reached similar conclusions in

a case heavily relied on in Drummond. “The state

bears ‘an affirmative obligation’ under the state

constitution to educate North Carolina's students,”

which it has partially “delegated . . . to charter school

operators.” Peltier, 37 F.4th at 118. “[S]uch a

delegation of a state’s responsibility renders a private

entity a state actor . . . and leave[s] its citizens with

no means for vindication of [their] constitutional

rights.” Ibid., citing West v. Atkins, 487 U.S. at 56-57

& n. 14 (citations omitted). But West is inapposite.

That case involved an injured state prisoner who

indeed had no other means to vindicate his right to

adequate medical treatment, and it was thus

appropriate to hold that a physician hired by the state

was a state actor. Under these circumstances, the

state could not evade its constitutional duty to provide

medical care. But for Oklahoma in this case and North

Carolina in Peltier, charter schools expand

opportunities for families to vindicate their right to

free public education. It is incomplete and misleading

to conclude that “a private entity is a state actor when

the government has outsourced one of its

constitutional obligations to the entity.” Drummond,

558 P.3d at 12, citing Manhattan, 587 U.S. at 810 n.

1. The Manhattan footnote states that “a private

entity may, under certain circumstances, be deemed a

state actor when the government has outsourced one

of its constitutional obligations to a private entity”

(emphasis added). The italicized words, omitted by

the Oklahoma Supreme Court, reveal that “certain

circumstances” must be present before a private

entity becomes a state actor.

The contract with St. Isidore is insufficient to

create the "symbiotic relationship" present in Burton,

where "the State had so far insinuated itself into a

position of interdependence with the restaurant that

it was a joint participant in the enterprise." Jackson,

419 U.S. at 357-358 (finding no "symbiotic

relationship" between government and a private

utility company). The private restaurant in Burton

was located on government premises and its lease

payments made it financially viable to operate the

public parking garage. Rendell-Baker, 457 U.S. at

842-843, citing Burton, 365 U.S. at 723. In both

Rendell-Baker (private school) and Jackson (private

utility company) this Court “found no symbiotic

relationship between the [private entity] and the state

that would have been similar to the relationship in

Burton.” See Peltier, 37 F.4th at 142 n. 6

(Quattlebaum, J., dissenting).

C. Accommodation of religious charter

schools aligns with this Court’s trend

toward nondiscrimination principles in

Establishment Clauses cases.

The Establishment Clause is a structural

limitation on government—not private actors. The

state action doctrine helps courts draw "the crucial

dividing line" between protected private conduct and

prohibited government action, a critical distinction

“enshrined in the Constitution's two Religion

Clauses." Developments in the Law: State Action and

the Public/Private Distinction: The State Action

Doctrine and the Establishment Clause, 123 Harv. L.

Rev. 1278, 1284 (2010). Constitutional rights are

protected against state interference—not private

conduct. Jackson, 419 U.S. at 349.

This Court’s ongoing trend is to apply

nondiscrimination principles in Establishment

Clause cases, promoting the "benevolent neutrality"

that "permit[s] religious exercise to exist without

sponsorship [or] interference." Walz v. Tax Comm’n of

New York, 397 U.S. 664, 669 (1970). This represents a

shift from its prior strict “no aid” position to a flexible

standard grounded in nondiscrimination principles.

Facilitating parental choice in education aligns with

that trend. Providing for charter schools like St.

Isidore is far removed from "[t]he coercion that was a

hallmark of historical establishments . . . coercion of

religious orthodoxy and of financial support by force of

law and threat of penalty." Am. Legion v. Am.

Humanist Ass'n, 588 U.S. 19, 75 (2019), citing Lee v.

Weisman, 505 U.S. 577, 640 (1992) (Scalia, J.,

dissenting).

This nation’s robust protection for religious liberty

guards against both government compulsion and

interference. Since absolute separation is neither wise

nor feasible, courts have tried to flesh out the

appropriate church-state relationship through the

fires of litigation. Government aid to religion has

generated heated debate over the course of American

history. A strict "no-aid" position prevailed after this

Court inaugurated Lemon’s tripart test in 1973. This

Court hesitated to approve anything but remote,

incidental, indirect, inconsequential benefits. See, e.g.,

Lynch v. Donnelly, 465 U.S. at 683; Widmar v.

Vincent, 454 U.S. 263, 273-274 (1981); Nyquist, 413

U.S. at 771. That approach was slowly replaced by a

growing trend to revive and strengthen the weak

nondiscrimination principle evident in earlier cases,

particularly Everson, 330 U.S. 1. Since Witters, this

Court gradually progressed from a strict "no aid"

stance to a point where "federal constitutional

restrictions on funding religious institutions have

collapsed." Douglas Laycock, Comment, Theology

Scholarships, The Pledge of Allegiance, and Religious

Liberty: Avoiding the Extremes but Missing the

Liberty, 118 Harv. L. Rev. 155, 156 (2004). This trend

has key implications for resolving this case, as it did

in Trinity Lutheran, Espinoza, and Carson v. Makin,

596 U.S. 767 (2022).

Exclusion is the antithesis of religious liberty and

equal protection. The Oklahoma Charter Schools Act

requires that all charter schools be nonsectarian in

their programs, admission policies, and other

operations. 70 O.S. Supp. 2022, § 3-132. This mandate

is neither benevolent nor neutral and cannot survive

a nondiscrimination analysis. Oklahoma fails to

"respect[] the religious nature of our people and

accommodate[] the public service to their spiritual

needs." Zorach, 343 U.S. at 313. Its exclusion of St.

Isidore is based solely on the school’s religious

viewpoint and implies that a religious education is

inferior to a religion-free, secular education. This is

classic viewpoint discrimination, easily wielded

against parents who choose a religious education for

their children. Parents have both the responsibility

and constitutional right to direct the education of

their children. Oklahoma’s full range of school choices

is available for families that have no interest in

religious education. Yet the system discriminates not

only against religious schools but also parents who

take their faith seriously. There is no constitutionally

valid rationale for such discrimination.

Even in public education, courts must balance the

government's obligation to neither "press religious

observances upon [its] [students] . . . nor evince a

hostility to religion by disabling the government from

in some ways recognizing our religious heritage." Van

Orden v. Perry, 545 U.S. 677, 683-684 (2005). This

Court, upholding a program allowing students to be

released for off-campus religious exercises, explained:

"We are a religious people whose institutions

presuppose a Supreme Being." Zorach, 343 U.S. at

313.

Charter schools facilitate religious education for

families that choose it – without coercing financial

support from those who do not. This "follows the best

of our traditions, . . . respects the religious nature of

our people and accommodates the public service to

their spiritual needs." Zorach, 343 U.S. at 313.

Oklahoma’s nonsectarian mandate defies those

traditions and discourages instruction officials

consider “too” religious. It would be "most bizarre" for

this Court to "reserve special hostility for those who

take their religion seriously, who think that their

religion should affect the whole of their lives, or who

make the mistake of being effective in transmitting

their views to children." Mitchell v. Helms, 530 U.S.

793, 827-828 (2000). Oklahoma can allow both secular

and religious options for charter schools while

continuing to offer traditional public education.

Oklahoma is not supporting churches, but education.

Religious schools are not “centers of indoctrination”

but “genuine institutions of education." William W.

Bassett, Changing Perceptions of Private Religious

Schools: Public Money and Public Trust in the

Education of Children, 2008 BYU L. Rev. 243, 270

(2008).

The Establishment Clause limits government but

complements the Free Exercise Clause, guarding

religious liberty. Taken to extremes and wrenched

from its context, the clause morphs into a sword

attacking religion instead of a shield protecting it. A

school choice program that accommodates religious

options “appear[s] unconstitutional only to those who

would twist the Fourteenth Amendment against itself

by expansively incorporating the Establishment

Clause,” twisting that Amendment so that, instead of

being a “guarantee of opportunity,” it becomes “an

obstacle against education reform [that] distorts our

constitutional values and disserves those in the

greatest need.” Zelman, 536 U.S. at 683-684 (Thomas,

J., concurring). Zelman and other cases are

demonstrate that “government decisions which do not

utilize religion as a standard for action or inaction do

not violate the Establishment Clause." Ryan A.

Doringo, Comment: Revival: Toward a Formal

Neutrality Approach to Economic Development

Transfers to Religious Institutions, 46 Akron L. Rev.

763, 794 (2013).

Parents have not only the right to have their

children educated in public school — but also the right

to direct their children’s studies. “The school board,”

despite broad discretion over curriculum, “cannot

make the surrender of the second a condition of the

enjoyment of the first.” People ex rel. Vollmar v.

Stanley, 255 P. 610, 614 (Colo. 1864). Many parents

are increasingly dissatisfied with public schools.

Religion has been systematically expelled. Engel v.

Vitale, 370 U.S. 421 (1962) (prayer); Schempp, 374

U.S. 203 (Bible reading); Stone v. Graham, 449 U.S.

39 (1980) (Ten Commandments); Lee v. Weisman, 505

U.S. 577 (graduation prayers); Santa Fe. Indep. Sch.

Dist. v. Doe, 530 U.S. 290 (2000) (student-led prayer

at athletic events). When mandatory curriculum

clashes with faith, parents have little recourse—

either subject their children to objectionable material

or get out of the public schools. Epperson v. Arkansas,

393 U.S. 97 (1968) (evolution); Edwards v. Aguillard,

482 U.S. 578 (1987) (same). Evangelical parents face

the same dilemma as their Catholic counterparts

years ago, "paying taxes for public schools they

[cannot] use in good conscience, and also paying

tuition to fund religiously acceptable private schools."

Why the Supreme Court Changed Its Mind, 2008 BYU

L. Rev. at 289.

Accommodation. This Court should refuse to

attribute St. Isidore's private conduct to a government

agency that merely accommodated its religious

character by incorporating certain long-established

legal doctrines in its charter, including the

“ministerial exception” and “church autonomy.”

Drummond, 558 P.3d at 7. Such acquiescence is the

essence of accommodation. The religiously inspired

policies and practices of institutions that receive

public funds do not become, for constitutional

purposes, the government's own policies and

practices. Even where "the State has specifically

authorized and approved" a private party’s

practices—as in negotiating the terms of St. Isidore’s

charter—that does not establish state action. Jackson,

419 U.S. at 354 (emphasis added).

The government's "mere approval or acquiescence

in the initiatives of a private party is not sufficient" to

generate state action. Blum, 457 U.S. at 1004-05;

Perkins, 196 F.3d at 19. The bar is much higher. The

State must “exercise[] coercive power” or “provide[]

such significant encouragement, either overt or

covert, that the choice must in law be deemed to be

that of the State.” Blum, 457 U.S. at 1004-05. By

accommodating St. Isidore, the State did not exercise

the "coercive power” or "significant encouragement"

required for state action.

A private party’s acts may be “fairly attributable

to the state” on some occasions when that party has

“acted in concert” with state actors. Rendell-Baker,

457 U.S. at 838 n. 6. Here, neither parents nor schools

have acted "in concert" with Oklahoma to advance

religion. Oklahoma enacted legislation that set in

motion a series of disconnected private choices—

parents choosing schools for their own children—with

unpredictable results. The actions of private parties

(parents) rupture any connection between the State

and religious teaching. The “government itself” is

sufficiently removed from any religious instruction. "A

law is not unconstitutional simply because it allows

churches to advance religion, which is their very

purpose." Corp. of the Presiding Bishop v. Amos, 483

U.S. 327, 337 (1987).

Free Exercise. Over the years, this Court

reached a “new middle ground to permit most funding

but to require hardly any.” Laycock, Theology

Scholarships, 118 Harv. L. Rev. at 161 (emphasis

added). This “maximize[d] government discretion and

judicial deference” but “threaten[ed] religious liberty”

and expanded government power. Id. Cases failed to

articulate exactly if or when the state must include

religious organizations among eligible recipients. But

recently, this Court’s non-discrimination trend

culminated in a series of opinions that apply

nondiscrimination principles to forbid government

exclusion of religious options. Unlike cases that

addressed what government may do, this “Free

Exercise trilogy”—Trinity Lutheran, Espinoza, and

Carson—considered what government must do.

This Court has long “prohibited governments from

discriminating in the distribution of public benefits

based upon religious status or sincerity.” Mitchell, 530

U.S. at 828; Trinity Lutheran Church of Columbia,

Inc. v. Comer, 582 U.S. 449, 458 (2017) (“religious

identity”); Espinoza, 591 U.S. at 484 (“religious

character”). Discrimination “solely because of . . .

religious character” "punish[es] the free exercise of

religion" and imposes a penalty that warrants “the

most exacting scrutiny.” Id. at 475; Trinity Lutheran,

582 U.S. at 462; Church of Lukumi Babalu Aye, Inc.

v. Hialeah, 508 U.S. 520, 533, 542 (1993) (strict

scrutiny applies to laws that target religion for

“special disability”). The freedom to continue

operating as a religious organization must not “come[]

at the cost” of “exclusion from the benefits of a public

program . . . for which the [organization] is otherwise

fully qualified.” Trinity Lutheran, 582 U.S. at 462. The

government may not force a choice between

“participation in a public program” and the “right to

free exercise of religion.” Id. at 469 (Thomas, J.,

concurring); see Thomas v. Review Bd., 450 U.S. 707,

716 (1981); Everson, 330 U.S. at 16. Yet that forced

choice is exactly what the Oklahoma Supreme Court

and the Fourth Circuit propose.

The charter school program does not lead to

government indoctrination. When government aid is

available to religious schools, the question of

indoctrination “is ultimately . . . whether any religious

indoctrination that occurs in those schools could

reasonably be attributed to governmental action.”

Mitchell, 530 U.S. at 809; see also Agostini v. Felton,

521 U.S. 203, 230 (1997). In Zobrest, a sign-language

interpreter in a religious school was not inculcating

religious teachings herself, so “no government

indoctrination took place.” Agostini, 521 U.S. at 224

(emphasis added). Where the state aid itself is not

"unsuitable for use in the public schools because of

religious content . . . any use of that aid to indoctrinate

cannot be attributed to the government and is thus

not of constitutional concern." Mitchell, 530 U.S. at

820 (internal citations and quotations omitted). In

earlier cases (Zobrest, Witters, Mueller), this Court did

not demand that the state demonstrate the aid was

“only for the costs of education in secular subjects.”

Mitchell, 530 U.S. at 821.

In Mitchell, this Court emphasized “the principle

of neutrality,” where aid is “offered to a broad range

of groups or persons without regard to their religion.”

530 U.S. at 809. In Carson, “[j]ust like the

wide range of nonprofit organizations eligible to

receive grants in Trinity Lutheran, a wide range of

private schools [we]re eligible to receive Maine tuition

assistance payments.” 596 U.S. at 780. Where

recipients “provide . . . a broad range of indoctrination,

the government itself is not thought responsible for

any particular indoctrination.” Mitchell, at 809-810

(emphasis added). That succinctly describes the

situation with the charter schools.

“[A] state need not subsidize private education,”

but once it does, “it cannot disqualify some private

schools solely because they are religious.” (Espinoza,

591 U.S. at 487. That is precisely what Montana did

in Espinoza, Maine did in Carson, and Oklahoma does

here.

Entanglement is a potential danger in enforcing

the nonsectarian mandate. Oklahoma does not

explain how it determines whether a school is

sufficiently “sectarian” to be disqualified. But the

State must adopt some procedure to identify

“sectarian” schools, risking the very entanglement the

Establishment Clause was designed to prevent and

simultaneously threatening the Free Exercise rights

of families who would choose religious education.

The Oklahoma Supreme Court misses the point in

concluding this case is “about the State's creation and

funding of a new religious institution” rather than its

“exclusion of a religious entity.” Drummond, 558 P.3d

at 14, 15 (emphasis added). The State negotiated a

contract with a previously created private entity—it

did not create a religious entity out of whole cloth. The

State has not made a “gift, donation, or appropriation”

because the contract is supported by valid

consideration—a “substantial return to the state.” Id.

at 16 (Kuehn, J., dissenting). The State’s duty to

provide free non-sectarian education (Okla.Const. art.

1, § 5) “does not bar the State from contracting for

education services with sectarian organizations, so

long as a state-funded, secular education remains

available statewide.” Drummond, 558 P.3d at 16

(Kuehn, J., dissenting). Indeed, “[e]xcluding private

entities from contracting for functions, based solely on

religious affiliation, would violate the Free Exercise

Clause.” Id. at 15 (Kuehn, J., dissenting).

Finally, the Petition cites evidence of hostility to

religion in Respondent’s concern that the State could

be forced to “fund all petitioning sectarian groups,”

including “extreme sects of the Muslim faith.” Pet. 24394, 31. A free exercise violation may be established

where “official expressions of hostility” to religion

accompany laws or policies burdening religious

exercise. In such cases, this Court has “set aside” the

offending policies “without further inquiry.” The same

should be done here. Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 525 n. 1 (2022), citing Masterpiece

Cakeshop, Ltd. v. Colo. Civ. Rights Comm'n, 584 U.S.

617 (2018).

This Court should continue to apply the

nondiscrimination principles affirmed in the Free

Exercise Trilogy. “The State is not required to partner

with private entities to provide common education.

But if it does, it cannot close the door to an otherwise

qualified entity simply because it is sectarian.”

Drummond, 558 P.3d at 17 (Kuehn, J., dissenting),

citing Espinoza, 591 U.S. at 487.

CONCLUSION

This Court should reverse the Oklahoma Supreme

Court.

Respectfully submitted,

James L. Hirsen

Counsel of Record

505 S. Villa Real Dr.

Suite 101

Anaheim Hills, CA 92807

(714) 283-8880

james@jameshirsen.com

Tami Fitzgerald

NC Values Institute