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

Nos. 24-394 and 24-396

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.

ST. ISIDORE OF SEVILLE

CATHOLIC VIRTUAL SCHOOL,

Petitioner,

v.

GENTNER DRUMMOND, ATTORNEY

GENERAL OF OKLAHOMA, ex rel. OKLAHOMA,

Respondent.

On Writ of Certiorari to the Supreme Court of Oklahoma

BRIEF OF OKLAHOMA GOVERNOR

J. KEVIN STITT AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Jonathan R. Whitehead

Law Offices of

Jonathan R. Whitehead, LLC

229 SE Douglas Street, Suite 210

Lee’s Summit, MO 64063

(816) 398-8305

jon@whiteheadlawllc.com

Counsel for Amicus Curiae

Oklahoma Governor J. Kevin Stitt

120336

i

TABLE OF CONTENTS

Page

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

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

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

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Excluding religious entities from school

charters undermines the State’s interests

in education and parental choice . . . . . . . . . . . . . 6

II. The Oklahoma Supreme Court’s exclusion of

St. Isidore from the public benefit of a school

charter violates the Free Exercise Clause

and cannot withstand 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. The Oklahoma Supreme Cour t’s

relig ious discr imination against

St. Isidore is not justified by the

Establishment Clause . . . . . . . . . . . . . . . . . 13

ii

Table of Contents

Page

C. Apply ing the for mula ic label of

“public school” does not control the

First Amendment inquiry . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iii

TABLE OF CITED AUTHORITIES

Page

Cases

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

347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

596 U.S. 767 (2022) . . . . . . 10, 11, 13, 14, 16, 18, 19, 24

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

355 U.S. 489 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) . . . . . 4, 10-11, 12, 13, 14, 17, 21, 22

Fulton v. City of Phila.,

593 U.S. 522 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Kennedy v. Bremerton Sch. Dist.,

4 F.4th 910 (9th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 18

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Larson v. Valente,

456 U.S. 228 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Lee v. Weisman,

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

Lindke v. Freed,

601 U.S. 187 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv

Cited Authorities

Page

Locke v. Davey,

540 U.S. 712 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21

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) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mitchell v. Helms,

530 U.S. 793 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Pierce v. Soc’y of Sisters,

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

Polk County v. Dodson,

454 U.S. 312 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) . . . . . . . . . . . . . . . . . . . . . 20, 21, 22

Shurtleff v. City of Bos., Mass.,

596 U.S. 243 (2022) . . . . . . . . . . . . 14, 15, 16, 18, 19, 20

Town of Greece v. Galloway,

572 U.S. 565 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

v

Cited Authorities

Page

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) . . . . . . . . . . . . . . . 10, 11, 12, 13, 14

Van Orden v. Perry,

545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

West v. Atkins,

487 U.S. 42 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Young v. Higbee Co.,

324 U.S. 204 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 16

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Okla. Const. art. I, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Okla. Const. art. I, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Okla. Const. art. VI, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Okla. Const. art. VI, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statutes, Rules, and Regulations

70 O.S. § 3-132.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

70 O.S. § 3-134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

Cited Authorities

Page

70 O.S. § 3-136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19, 20

70 O.S. § 3-140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

70 O.S. § 3-142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

70 O.S. § 6-190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

70 O.S. § 18-200.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Okla. A dmin. Code 777:10-3-4 . . . . . . . . . . . . . . . . . . . . 19

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

Other Authorities

Alexia Aston, T he O k l a hom a n , Gov. Kevin

Stitt champions school choice at inaugural

Oklahoma Char ter Schools Conference

(Mar. 8, 2025), https://tinyurl.com/msetbt3u . . . . . . . 3

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 . . . . . . . . . . . . . . . . . . . 10

vii

Cited Authorities

Page

Drummond remarks on actions of Oklahoma

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

https://tinyurl.com/2wa7nuwy . . . . . . . . . . . . . . . . . 3-4

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

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 . . . . . . 1, 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

H.B. 1759, 1999 O.S.L. 320 (codified at 70 O.S.

§§ 3-130 et al.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

Cited Authorities

Page

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

Territorial Superintendent of Public Instruction

(Dec. 1, 1902), https://tinyurl.com/awy4tt8w . . . . . . . 8

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part i:

Establishment of Religion, 44 Wm. & Mary L. Rev.

2105 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 22

Okla. Hist. Soc’y, Oklahoma Education, https://

www.okhistory.org/learn/education . . . . . . . . . . . . 6, 7

Okla. Hum. Servs., Oklahoma Adoption Agencies,

https://tinyurl.com/ms62ykmc (last visited

Mar. 10, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Okla. Hum. Servs., School Food Authority (SFA)

Administrative Review Summary Reports,

https://tinyurl.com/ybbhw5zs (last visited

Mar. 10, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Okla. Hum. Servs., Refugee Resettlement Program

Benefit and Service Providers (Feb. 20, 2025),

https://tinyurl.com/3wk4huk8 . . . . . . . . . . . . . . . . . . 25

Okla. State Dep’t of Educ., Oklahoma Charter

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

4ydnjwmj . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Okla. State Dep’t of Educ., Oklahoma Public

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

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

ix

Cited Authorities

Page

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 24- 25),

https://tinyurl.com/k3xvnjtk . . . . . . . . . . . . . . . . . . . . 7

P ublic 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 . . . . . . . . . . . . . . . . . . . 9

P ublic S ch . R e v., Top 10 Best Oklahoma

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

t96v7vfd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Title IV of the Higher Education Act, Pub. L. No.

89-329 (Nov. 8, 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. Dep ’t Of Educ., ED409-621, A Study of

Charter Schools, First-Year Report Executive

Summary (May 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 9

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 . . . . . . . . . 7

x

Cited Authorities

Page

William H. Jeynes, Religion, A Meta-Analysis

on the Effects and Contributions of Public,

Public Char ter, 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

for over six years, Governor Stitt’s unique experience

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, and no person other than

Amicus or his counsel made such a monetary contribution.

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

flexibility to determine which schools their children will attend, thus

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,

regardless of religious affiliation, have access to a diverse

array of high-quality schooling options that allow them

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

One critical option for parental school choice is a

faith-based education. Although some theories of public

education purport to be strictly secular, secularism is

not neutral toward values and viewpoints important to

parents. Instead, strict religious secularism can prioritize

irreligion to religion, taking sides on important cultural,

historical, political, and religious subject matters that are

covered in the classroom. By prioritizing religion-free

education, so-called “secular” public schools provide an

education that is far from neutral. This leaves parents of

deep religious conviction the impossible choice between

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

abandoning those religious convictions when it comes to

educating their children or reaching deep in their own

pockets. But school choice with a price tag isn’t school

choice at all.4 Thus, when the State decides to subsidize

alternatives to traditional public schools, it is crucial that

those programs remain free from religious discrimination.

Today, Governor Stitt adds his voice in support of

Petitioners, the Oklahoma Statewide Charter School

Board (“Board”) and St. Isidore of Seville Catholic Virtual

Charter School (“St. Isidore”), and all 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 available public benefit.

Governor Stitt is compelled to speak on behalf of

Oklahomans in this case because another statewide official

elected to advocate for their interests, the Oklahoma

Attorney General (“AG”), launched this attack against

their religious liberty and educational freedom. The AG’s

open hostility5 against religion proves that a “trendy

4. See also Alexia Aston, the Oklahoman, Gov. Kevin Stitt

champions school choice at inaugural Oklahoma Charter Schools

Conference (Mar. 8, 2025), https://tinyurl.com/msetbt3u (“Rich

people already have school choice”).

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

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

that St. Isidore’s school charter would “open the floodgates and 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://

4

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)). By reversing the decision

below, this Court will help root-out the still deeply

entrenched disdain for religion “fostered by [a] distorted

understanding of the Establishment Clause[.]” 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

invaluable public benefit to Oklahoma students, parents,

and educators. Charter schools combine the best elements

of the existing educational systems: the public funding

and equal opportunity of the traditional public school

and the flexibility and autonomy of the private school.

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

available public benefit of a school charter will bolster

educational opportunities, educational diversity, and

parental school choice.

tinyurl.com/2wa7nuwy (characterizing the Board as “recklessly

committed to using our tax dollars to fund radical religious teachings

like Sharia law.”).

5

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

and cannot withstand strict scrutiny. The Establishment

Clause neither compels nor justifies this infringement.

Instead, the original meaning of the Clause, as well as

the Free Exercise trilogy, confirms that granting St.

Isidore a school charter does not bear any of the historical

hallmarks of religious establishments. It does not resemble

historical government coercion of participation in religious

exercise as nothing in Oklahoma law requires students to

enroll and attend a charter school. It does not resemble

historical non-neutral denominational preferences, a fact

the AG readily concedes when engaging in alarmism

over the creation of charter schools of other religions.

It does not resemble historical government control over

doctrine or personnel of the established church as St.

Isidore is privately owned and operated, not required

to teach the traditional public-school curriculum, and

allowed flexibility in personnel policies. Finally, it does

not resemble historical monopolistic use of the established

church to carry out certain civil functions, as Oklahoma

has not abandoned its public school system and providing

a free education at public expense is not exclusively a

public function at all. In sum, had the Oklahoma Supreme

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. This Court should reverse.

6

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

benefit of an education, Oklahoma has consistently strived

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

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.6

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

Methodists, and Catholics all operated Christian mission

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

Anniversary of Statehood Vol. II 241– 52 (Lew is Historical

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

Hist. Soc’y, Oklahoma Education, https://www.okhistory.org/learn/

education.

7

schools in the Indian Territory.7 Today, religious schools

educate approximately 35,000 Oklahoma students a year,

representing 4.83% of all K-12 enrollment. 8

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.” 9 Faith-based

schools “enable parents to pass down religious and cultural

traditions important to their families and communities.”10

In addition, scholars and Justices have long observed

a positive correlation between faith-based schools and

educational outcomes.11

Public schools, too, have long been a critical educational

option for Oklahoma families. Before Statehood, the

superintendent of the Oklahoma Territory recognized:

7. Id.

8. Private Sch. Rev., Best Oklahoma Religiously Affiliated

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

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

tinyurl.com/t96v7vfd.

9. U.S. Dep’t of Educ., Preserving a Critical National Asset:

America’s Disadvantaged Students and the Crisis in Faith-based

Urban Schools 1 (Sept. 2008), https://tinyurl.com/mtpfvsjv.

10. Id. at 6.

11. 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.”).

8

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

fitting individuals for complete living.12

Upon statehood, Oklahoma’s founders turned that belief

into a promise of free public education for all children. See

Okla. Const. art. I, § 5 (1907). From there, Oklahoma’s

common school system was born.13 Today, Oklahoma’s

public school system educates over 700,000 students

a year, representing 94% of total K-12 enrollment.14

Approximately 56% of those students come from

economically disadvantaged households.15

In the early 1990s, an alternative educational choice to

private and public schools rose to prominence in the United

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

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

tinyurl.com/awy4tt8w.

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

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

14. See Public Sch. Rev., supra n.7; Okla. State Dep’t of Educ.,

Oklahoma Public Schools Fast Facts 2021-22 10 (updated Jan. 2022),

https://tinyurl.com/47n5a49u.

15. Oklahoma Public Schools Fast Facts, supra n.13 at 30.

9

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

the flexibility and autonomy of the private school.16 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.”17

Oklahoma cleared the way for charter schools in 1999 with

the passage of the Oklahoma Charter Schools Act (“Act”).

See H.B. 1759, 1999 O.S.L. 320 (codified at 70 O.S. §§ 3-130

et al.). Today, charter schools serve over 50,000 students,

representing 7.2% of total K-12 enrollment.18 Oklahoma

charter schools lead the Nation in academic excellence.19

Combining the moral grounding, community ethic, and

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

flexibility, and public access of a charter school will expand

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

16. U.S. D ep ’t of Educ ., ED409-621, A Study of Charter

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

17. Id.

18. Public Sch. Rev., Top 10 Best Oklahoma Charter Public

Schools (2024-25), https://tinyurl.com/3hs2m7d5; Okla . State Dep ’t

of Educ., Oklahoma Charter School Report 2023 10, https://tinyurl.

com/4ydnjwmj.

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

Charter Report Card, Educ. Next 26–28 (2024), https://tinyurl.

com/288cvhfh.

10

preferences. It will also allow communities to profit from

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

they find morally objectionable—all without the crippling

financial burden of tuition. 20 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.

II. The Oklahoma Supreme Court’s exclusion of St.

Isidore from the public benefit of a school charter

violates the Free Exercise Clause and cannot

withstand strict scrutiny.

This Court has repeatedly instructed that “an interest

in separating church and state more fiercely than the

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

religious establishment concerns” was not sufficiently

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

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

20. See B eck et F und for R eligious L ibert y, 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.”).

11

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

benefit because of their religious exercise.” 596 U.S. at 781.

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

generally available public benefit solely because of its

religious character. This Court should reverse.

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

benefit solely on account of religious identity imposes a

penalty on the free exercise of religion that can be justified

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

12

benefits solely because of the religious character of the

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.” Board.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.”

Board.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.” Board.App.7a; see also Board.App.9a (“St. Isidore

warrants that it is affiliated with a nonpublic sectarian

school or religious institution.”); Board.App.15a (“There

is no question that 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 Board.App.13a (“The expenditure

of state funds for St. Isidore’s operations constitutes

the use of state funds for the benefit and support of the

Catholic church.”). Thus, strict scrutiny applies.

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). After

all, “[s]tatus-based discrimination remains status based

even if one of its goals or effects is preventing religious

13

organizations from putting aid to religious uses.” Id. at

477.

But as in Espinoza, id., the Oklahoma Supreme Court

also highlighted that the state funds would be used “in

direct support of the religious curriculum and activities

within St. Isidore” and contrasts the unrestricted state

funding with funding “non-religious use” funds used in

Trinity Lutheran. Board.App.26a–28a. By emphasizing

the use of funds as a defense to strict scrutiny, the court

below ignored this Court’s clear instruction that “the

prohibition on status-based discrimination under the Free

Exercise Clause is not a permission to engage in use-based

discrimination.” Carson, 596 U.S. at 788. As Carson firmly

established, there is no meaningful distinction between

status and use-based discrimination. See id. (“[U]sebased discrimination is [not] any less offensive to the Free

Exercise Clause.”); Espinoza, 591 U.S. at 478 (“None of

this is meant to suggest . . . that some lesser degree of

scrutiny applies to discrimination against religious use

of government aid.”).

No matter how the Oklahoma Supreme Court

describes the benefit and restriction of the charter school

program, it “operates to identify and exclude otherwise

eligible schools on the basis of their religious exercise.”

Carson, 596 U.S. at 789.n. Strict scrutiny applies.

B. The Oklahoma Supreme Court’s religious

discrimination against St. Isidore is not

justified by the Establishment Clause.

The principles espoused in the Free Exercise Trilogy

conclusively resolve this case. As with Trinity Lutheran,

14

the “clear infringement on free exercise” before this Court

cannot be justified by a “policy preference for skating as

far as possible from religious establishment concerns.” 582

U.S. at 466. As with Espinoza, the decision below penalizes

parents’ decision to “send[] their children to religious

schools . . . by cutting families off from otherwise available

benefits if they choose a religious private school rather than

a secular one, and for no other reason.” 591 U.S. at 486. As

with Carson, the “State’s antiestablishment interest does

not justify enactments that exclude some members of the

community from an otherwise generally available public

benefit because of their religious exercise.” 596 U.S. at

781. These “‘unremarkable’ principles . . . suffice to resolve

this case.” Id. at 780. But an independent analysis of the

Establishment Clause makes this conclusion unavoidable.

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). As recently as Kennedy v.

Bremerton School District, 597 U.S. 507, 536 (2022), this

Court stressed that “[a]n analysis focused on original

meaning and history . . . has long represented the rule

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

Establishment Clause jurisprudence.’” (citation omitted).

Courts must therefore look to the “hallmarks of religious

establishments the framers sought to prohibit when they

adopted the First Amendment.” Id. at 537.

At least six hallmarks of religious establishments can

be extrapolated from the discussion in Kennedy and the

authorities citied therein. See Kennedy, 597 U.S. at 537,

15

n.5; Shurtleff, 596 at 286 (Gorsuch, J., concurring). Those

hallmarks include when the government (1) “mandated

attendance in the established church[,]” (2) “exerted

control over the doctrine and personnel of the established

church[,]” (3) “punished dissenting churches and

individuals for their religious exercise[,]” (4) “restricted

political participation by dissenters[,]” (5) “provided

financial support for the established church, often in a

way that preferred the established denomination over

other churches[,]” and (6) “used the established church

to carry out certain civil functions, often by giving the

established church a monopoly over a specific function.”

Shurtleff, 596 at 286 (Gorsuch, J., concurring).

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.”

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

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

rights context—laying out five of those tests as a buffet

from which the court could pick and choose. Board.

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.

This Court’s historical framework starts with

the foremost 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

16

citizens to engage in a formal religious exercise”) (cleaned

up); see also Lee v. Weisman, 505 U.S. 577, 640–41 (1992)

(Scalia, J., dissenting); Van Orden v. Perry, 545 U.S. 677,

693, (2005) (Thomas, J., concurring). 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).

Granting St. Isidore a school charter does not

resemble government coercion of religious exercise by

threat of force of law or penalty. Distracted by its analogy

of 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, and in turn whether State aid reaches

the school. 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.

The fact that funding is provided directly to the

charter school does not negate this conclusion. On this

point, the Oklahoma Supreme Court tried to distinguish

17

the scholarship program in Espinoza from Oklahoma’s

charter school program by the “complete and direct

financial support for a public charter school . . . mandated

by the Act.” Board.App.27a–28a. But whether aid is

delivered indirectly (e.g., through a scholarship or tax

credit to the parent) or directly (e.g., through the state

aid formula to the school) is a distinction without a legal

difference. This Court has already rejected a “direct/

indirect distinction” that requires “aid be literally placed

in the hands of schoolchildren rather than given directly

to the school” as a formalistic and “arbitrary choice . . .

that does not further the constitutional analysis.” Mitchell

v. Helms, 530 U.S. 793, 817–18 (2000). Again, this Court

has reiterated that “the principles of neutrality and

private choice would be adequate to address” any special

Establishment Clause dangers with providing money

directly to religious schools. Id. at 818–19, n.8.

Oklahoma’s state aid formula reflects that funding

only f lows from the independent private choices of

parents. The Act provides that “[a] charter school shall

receive the State Aid allocation” calculated pursuant

to 70 O.S. § 18-200.1, which is “calculated based on . . .

the highest weighted average daily membership for the

school district[.]” 70 O.S. § 3-142. In other words, parents

must choose to send students to the school for the school

to benefit from funding. The only difference, then, and a

nominal one at that, is the mechanism in which the money

gets to a school. This Court should reiterate that a direct/

indirect distinction has no place in its Establishment

Clause jurisprudence.

Another absent hallmark of religious establishments

is “financial support for the established church, often in

18

a 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

U.S. at 781 (describing that a “neutral benefit program in

which public funds flow to religious organizations through

the independent choices of private benefit recipients does

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).

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.5. 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.”).

19

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). This hallmark primarily

involved the government dictating church doctrine and

regulating the appointment of minsters, clergy, or other

church officials. See McConnell, infra n.21 at 2132.

Accepting that the religious character of St. Isidore

renders it analogous to an established church, granting St.

Isidore a school charter does not implicate this historical

hallmark.

The State exercises very limited, if any, control over

the internal operations of St. Isidore—including personnel

and instruction decisions. 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” unless specifically provided,

but “may offer a curriculum which emphasizes a specific

learning philosophy or style 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 statecertified teachers.” Carson, 596 U.S. at 783; compare 70

O.S. § 6-190(A) (requiring traditional public schools to

“employ and contract in writing . . . only with persons

certified to teach by the State Board of Education”) with

20

70 O.S. § 3-136(B) (allowing charter schools flexibility in

“personnel policies, personnel qualifications, and method

of school governance”). Thus, the State exercises little, if

any, control over the St. Isidore’s structure, instruction,

and personnel decisions.

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.” Board.App.21a. But this Court

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

private contractors do not become acts of the government

by reason of their significant or even total engagement in

performing public contracts.”).

One final absent hallmark of religious establishments

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

civil functions, often by giving the established church a

monopoly over a specific function.” Shurtleff, 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 private entity is performing a traditional,

21

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, 487 U.S. at 55 (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. 9. 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, publicly funded education.

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

substantial’ tradition against aiding such [religious] schools

comparable to the tradition against state-supported

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[.]” Board.App.21a; see also Rendell-Baker,

457 U.S. at 842. Indeed, religious institutions carried out

the civil function of education long before the common

school movement. 21

21. Se e M ic h a el W. Mc C on nel l , Es t a bli shm e n t a n d

Disestablishment at the Founding, Part i: Establishment of

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

n.6 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.

Isidore fit that artificial criterion. Board.App.21a. Setting

aside 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 traditiona lly and exclusively a

government function. Instead, religious schools have a

well-documented history of offering free education and

receiving governmental financial support. See Espinoza,

591 U.S. at 480 (“In the founding era and the early

19th century, governments provided financial support

to private schools, including denominational ones.”);

McConnell, infra n.21 at 2174 (observing that religious

schools in the colonial period offered “free or subsidized

rates for the poor” and received “[g]overnmental financial

support for education”); Litton, supra n.6 at 243, 250–52,

262, 274 (describing the operation of mission schools in

Indian Territory through contracts or funding from tribal

and federal governments and noting the first public school

required tuition).

23

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,

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.

C.

Applying the formulaic label of “public school”

does not control the First Amendment inquiry.

Both the Oklahoma Supreme Court and the AG rely

heavily on formulaic labels of “public” or “public school” to

defeat the Free Exercise Clause arguments. For example,

they cite language in the Act defining a charter school as

a “‘public school’ established by contract” to distinguish

charter schools from the public benefits at issue in the

Free Exercise Trilogy. Board.App.17a (quoting 70 O.S.

§ 3-132.2(C)(1)); see also Board.App.27a–28a; Opp.Br.5;

but see Board.App.35a (Kuehn, J., dissenting) (stressing

that “labeling all charter schools as ‘public schools’ . . .

places form over substance.”). The AG likewise summarily

concludes that “Oklahoma’s charter schools are public

schools” and tries for a gotcha moment by citing a multistate letter joined by Governor Stitt calling charter

schools public schools. Opp.Br.24.

This use of “public” to mean “irreligious,” or “secular”

is a misnomer, revealing the anti-religious bias of those

who believe there should be a ‘naked’ public square,

where parents, students, and schools are excluded when

they bring their religious identities. And by obsessing

over the term “public school[,]” the AG and court below

continue to miss the point: labels—whether in statutes

24

or letters—do not decide the constitutional inquiry. 22

The substance of the public benefit directs the First

Amendment inquiry, not “the presence or absence of magic

words.” Carson, 596 U.S. at 785. After all, “the definition

of a particular program can always be manipulated to

subsume the challenged condition, and to allow States

to recast a condition on funding in this manner would

be to see the First Amendment . . . reduced to a simple

semantic exercise.” Carson, 596 U.S. at 784 (cleaned

up). That maxim holds up in nearly every constitutional

context, including in state action cases. See, e.g., Lindke v.

Freed, 601 U.S. 187, 197 (2024) (“The distinction between

private conduct and state action turns on substance, not

labels[.]”); Polk County v. Dodson, 454 U.S. 312, 317–19

(1981) (concluding a public defender was not a state actor

after analyzing the functions and obligations of the office);

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.”); Young v.

Higbee Co., 324 U.S. 204, 209 (1945) (“Equity looks to the

substance and not merely to the form.”).

The Federal government has long supported student

educational choice, using public support, of private colleges

and universities. See Title IV of the Higher Education

Act, Pub. L. No. 89-329 (Nov. 8, 1965). Many private

colleges are secular, but this does not make them “public”

schools. Many private colleges are religious, but this does

not deprive them of the right to receive Title IV funds.

2 2 . T he f i x at ion on t he ph r a se “ publ ic school” a l so

misunderstands that describing a school as “public” is intended to

refer to the source of the school funding—not convey the obviously

incorrect proposition that a charter school is identical in every aspect

to a traditional public school.

25

The same can be said in contexts outside of education,

including foster care, child nutrition, health care, refugee

assistance, and more. See, e.g., Fulton v. City of Phila.,

593 U.S. 522, 542 (2021) (acknowledging that a Catholic

religious organization had “long been a point of light in

the City’s foster-care system” and that excluding that

organization violated the First Amendment); Okla. Hum.

Servs., Oklahoma Adoption Agencies, https://tinyurl.com/

ms62ykmc (last visited Mar. 10, 2025) (listing Oklahoma

foster agency partners, which include religiously affiliated

institutions); Okla. Hum. Servs., School Food Authority

(SFA) Administrative Review Summary Reports, https://

tinyurl.com/ybbhw5zs (last visited Mar. 10, 2025) (same

for school food authority programs); Okla. Hum. Servs.,

Refugee Resettlement Program Benefit and Service

Providers (Feb. 20, 2025), https://tinyurl.com/3wk4huk8

(same for refugee assistance programs). Oklahoma’s use

of a similar system in elementary and primary education

does not violate the First Amendment.

Thus, the label of “public school” is of no import

to this Court’s analysis. And fixating on the phrase

“public school” only clouds this Court’s analysis, instead

of resolving it. Because nothing about the statutory

label “public school” changes this Court’s constitutional

analysis, reversal is proper.

26

CONCLUSION

For the reasons stated, Amicus Oklahoma Governor J.

Kevin Stitt respectfully requests that this Court reverse

the Oklahoma Supreme Court’s decision below.

Respectfully submitted,

Jonathan R. Whitehead

Law Offices of

Jonathan R. Whitehead, LLC

229 SE Douglas Street, Suite 210

Lee’s Summit, MO 64063

(816) 398-8305

jon@whiteheadlawllc.com

Counsel for Amicus Curiae

Oklahoma Governor J. Kevin Stitt

March 12, 2025