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

Supreme Court briefMar 12, 2025

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Nos. 24-394 and 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, ET AL.,

Respondent.

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA, ET AL.,

Respondent.

On Writs of Certiorari to the

Oklahoma Supreme Court

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY

AND THE NATIONAL ASSOCIATION OF EVANGELICALS

IN SUPPORT OF PETITIONERS

STEVEN T. MCFARLAND

LAURA NAMMO

CENTER FOR LAW &

RELIGIOUS FREEDOM

CHRISTIAN LEGAL

SOCIETY

8001 Braddock Rd.

Suite 302

Springfield, VA 22151

ERIC W. TREENE

Counsel of Record

CHRISTOPHER S. ROSS

RELIGIOUS LIBERTY CLINIC

THE CATHOLIC UNIVERSITY OF

AMERICA, COLUMBUS SCHOOL

OF LAW

3600 John McCormack Rd. NE

Washington, DC 20064

(202) 319-6783

treene@cua.edu

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

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

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF ARGUMENT .....................................1

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

I. The Oklahoma Supreme Court’s Holding

That “Free Public Education is Exclusively

a Public Function” Is Ahistorical ........................4

A. States have long provided for and even

helped establish religious schools .................5

B. The U.S. Government supported

religious instruction for Native

Americans in Oklahoma and elsewhere .......8

C. Modern trends reflect this historical

understanding of a public-private

balance in education ....................................10

II. Religious Organizations That Provide

Critical Social Services Do Not Become

State Actors Simply by Receiving

Government Funds............................................12

A. Religious institutions have a rich

tradition of providing critical social

services as an expression of their

respective faiths ...........................................13

TABLE OF CONTENTS––Continued

Page

1. Since the Founding Era, religious

institutions have provided a vast

range of social services, most of

which initially had no government

analogue ..................................................14

2. The Executive Branch has

encouraged government

partnerships with faith-based

providers .................................................17

B. Private entities providing social

services do not metamorphose into state

actors ............................................................19

C. To hold that private charities providing

social services are state actors would

undermine the continued provision of

vital services.................................................22

III. There Is no “Entwinement” of the State

With St. Isidore or Other Private Charter

Schools ...............................................................24

CONCLUSION ..........................................................32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ................................................28

Aguilar v. Felton,

473 U.S. 402 (1985) .......................................... 27, 28

American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ..................................................30

Bowen v. Kendrick,

487 U.S. 589 (1988) .......................................... 12, 20

Bradfield v. Roberts,

175 U.S. 291 (1899) ................................................20

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) ...................................... 3, 24-27

Carson v. Makin,

596 U.S. 767 (2022) ...................... 2, 5, 11, 12, 30, 31

Corp. of Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327 (1987) .......................................... 18, 19

Doe ex rel. Johnson v. S.C. Dep’t of Soc.

Servs.,

597 F.3d 163 (4th Cir. 2010)..................................22

Drummond ex rel. State v. Okla. Statewide

Virtual Charter Sch. Bd.,

558 P.3d 1 (Okla. 2024) ................................. 1, 4, 24

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .................................... 6, 8, 9, 31

Freedom from Religion Found., Inc. v.

McCallum,

324 F.3d 880 (7th Cir. 2003)............................ 16, 21

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .............................. 12, 15, 16, 20

Howell v. Father Maloney’s Boys’ Haven, Inc.,

976 F.3d 750 (6th Cir. 2020)............................ 20, 22

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) ............................................ 4, 27

Johnson v. Rodrigues,

293 F.3d 1196 (10th Cir. 2002)............ 12, 13, 20, 21

Kennedy v. Bremerton School District,

597 U.S. 507 (2022) .......................................... 28, 31

Larkin v. Grendel’s Den,

459 U.S. 116 (1982) .......................................... 28, 29

Lemon v. Kurtzman,

403 U.S. 602 (1971) .......................................... 27, 28

Leshko v. Servis,

423 F.3d 337 (3d Cir. 2005) ...................................20

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

296 F.3d 22 (1st Cir. 2002) ......................................5

Lown v. Salvation Army, Inc.,

393 F. Supp. 2d 223 (S.D.N.Y. 2005) ....................21

Lynch v. Donnelly,

465 U.S. 668 (1984) ................................................29

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) .................................... 25, 29, 30

Marsh v. Chambers,

463 U.S. 783 (1983) ..................................................8

Mitchell v. Helms,

530 U.S. 793 (2000) ............................................ 7, 28

Our Lady of Guadalupe Sch. v. MorrisseyBerru,

591 U.S. 732 (2020) ................................................28

Pierce v. Society of Sisters of the Holy

Names of Jesus and Mary,

268 U.S. 510 (1925) .................................... 2, 4, 5, 10

Rayburn ex rel. Rayburn v. Hogue,

241 F.3d 1341 (11th Cir. 2001)..............................20

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) ...................................... 5, 25, 29

Town of Greece v. Galloway,

572 U.S. 565 (2014) .......................................... 12, 29

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) ................................................31

United States v. Peneaux,

432 F.3d 882 (8th Cir. 2005)..................................20

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) .................................. 2, 5, 10, 11

Statutes & Rules

70 Okla. Stat. § 3-131(A)(3), (5) .......................... 25, 26

70 Okla. Stat. § 3-134 ................................................26

Exec. Order No. 13279, 3 C.F.R. 258 (2002) .............18

Exec. Order No. 13559, 3 C.F.R. 287 (2010).............18

Exec. Order No. 13831, 3 C.F.R. 149 (2018) .............18

Exec. Order No. 14015, 3 C.F.R. 191 (2021) .............18

Exec. Order No. 14205, 90 Fed. Reg. 9499

(Feb. 12, 2025)........................................................18

Partnerships with Faith-Based and

Neighborhood Organizations, 89 Fed.

Reg. 15,671 (Mar. 4, 2024) ............................... 19, 21

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-1 ................................................18

Other Authorities

Alexis de Tocqueville, 2 Democracy in

America (Phillips Bradley, ed. and trans.

1990) .......................................................................13

Ava Harriet Chadbourne, A History of

Education in Maine (1936) ......................................5

Bryan C. Rindfleisch, Negotiating

Assimilation & Missionization in Indian

Territory (2024) .................................................. 9, 10

Carl H. Esbeck, Government Regulation of

Religiously Based Social Service: The First

Amendment Considerations, 19 Hastings

Const. L.Q. 343 (1992) ..................................... 14, 15

Carl H. Esbeck, Regulation of Religious

Organizations via Governmental Financial

Assistance, in Religious Organizations in

the United States: A Study of Identity,

Liberty, and Law 349 (James A. Serritella

et al. eds., 2006) ............................................... 14, 17

Catholic Relief Services, 2023 Annual Report,

https://perma.cc/G3XF-8SB7 .................................16

Charles L. Glenn, American Indian/First

Nations Schooling: From the Colonial

Period to the Present (2011) .....................................9

vii

Charles L. Glenn, The Myth of the

Common School (1988) ............................................6

Diane Ravitch, American Traditions of

Education, in A Primer on America’s

Schools (Terry M. Moe ed., 2001) ...................... 6, 11

Donald L. Drakeman, Church, State, and

Original Intent (2010) ..............................................9

Dream Center, Get to Know Us,

https://perma.cc/KU3G-FEVF ...............................16

Francis Paul Prucha, American Indian

Policy in the Formative Years: The

Indian Trade and Intercourse Acts,

1790-1834 (1962)..................................................8, 9

Guidance to Faith-Based and Community

Organizations on Partnering with the

Federal Government, White House Office

of Faith-Based and Community

Initiatives (2006)........................................ 17-19, 23

John C. Jeffries, Jr. & James E. Ryan, A

Political History of the Establishment

Clause, 100 Mich. L. Rev. 279 (2001) ......................6

K. Tsianina Lomawaima, They Called It

Prairie Light: The Story of Chilocco Indian

School (1994) ............................................................9

Kerry O’Halloran, Charity and Religion, in

International Encyclopedia of Civil Society

(Helmut K. Anheier ed., 2010) ..............................13

Lloyd P. Jorgensen, The State and the NonPublic School, 1825–1925 (1987).............................7

viii

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

Establishment of Religion, 44 Wm. & Mary

L. Rev. 2105 (2003) ..................................................5

Nieli Langer, Sectarian Organizations

Serving Civic Purposes, in Religious

Organizations in Community Services:

A Social Work Perspective (Terry Tirrito

& Toni Cascio eds. 2003) .......................................14

Okla. State Dep’t of Educ., Oklahoma

Charter School Report 2023 5 (2023),

https://perma.cc/4GD9-CBS2.................................27

Philip Hamburger, Separation of Church &

State (2002) ..............................................................7

Professor Charles L. Glenn as Amicus Curiae

in Support of Petitioners, Carson v. Makin,

596 U.S. 767 (No. 20-1088) ..................................6, 7

Richard J. Gabel, Public Funds for Church

and Private Schools (1937) ..................................6, 7

Roger Vincent, Dream Center in L.A. Expects

$49.7-million Grant, L.A. Times (Aug. 27,

2012), https://perma.cc/NFW5-JBGA .............. 16, 17

Steven V. Monsma, When Sacred and

Secular Mix: Religious Nonprofit

Organizations and Public Money (1996) ......... 13, 14

The Salvation Army, 2023 Annual Report,

https://perma.cc/8LSZ-KBPR ................................16

U.S. Equal Employment Opportunity

Commission Guidance, Section 12:

Religious Discrimination,

https://perma.cc/6NLX-QSDG ...............................18

INTERESTS OF AMICI CURIAE1

Christian Legal Society (“CLS”) is a nonprofit,

non-denominational

association

Christian

attorneys, law students, and law professors with

members in every state and chapters on over 140 law

school campuses. CLS believes that parents of any

faith have no higher right and responsibility than to

oversee the education of their children; therefore, it

has filed amicus briefs in many of this Court’s cases

cited herein.

The National Association of Evangelicals is

the largest network of evangelical churches,

denominations, colleges, and independent ministries

in the United States. It serves 40 member

denominations, as well as numerous evangelical

associations, mission social-service charities, refugee

and humanitarian aid agencies, colleges, seminaries,

and independent churches.

SUMMARY OF ARGUMENT

The court below held that St. Isidore is a state

actor because “free public education is exclusively a

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

Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 12

(Okla. 2024). But the notion that publicly funded

education is a traditional government function

exclusively reserved to the state is a legal and

historical mistake.

1 Pursuant to Rule 37.6, no counsel for any party in this case

wrote any part of this amici brief, and no person except amici

contributed to the costs of its preparation.

Since the Founding, public and private entities

have worked hand in hand to educate our nation’s

youth. States provided common schools with taxpayer

funds, not despite but often because of their practices

of daily religious instruction and devotional prayers.

In Oklahoma itself, the federal government

established and funded numerous Native American

boarding schools, with their operation left to Catholic

and Protestant orders. Meanwhile, this Court has

made clear—in cases from Pierce to Zelman to

Carson—that education is not a function reserved

solely to the government, that states may include

private schools in their efforts to provide education to

youth, and that when private schools are included in

such efforts states may not exclude some schools

based on their religious character. The public-private

hybrid to education has produced a new concept called

“charter schools” starting in the 1990s, but in essence

they are far from novel; they are simply a modern

iteration of the historic partnership between private

and public entities providing education to our nation’s

children.

From the Founding, not only have religious schools

coordinated with the government to provide the

nation with an important social service, but religious

institutions also have a rich tradition of providing a

range of other critical social services. Religious

providers of foster care, adoption, prisoner re-entry,

court-mandated drug treatment programs, hospitals

serving the poor, homeless shelters, and other social

services work side by side with the government to

accomplish important societal interests. Crucially,

these religious organizations have done so while both

maintaining their religious character and receiving

government funding, all without becoming state

actors. Under the Oklahoma Supreme Court’s logic,

these same entities would be disqualified from receipt

of government funds on Establishment Clause

grounds. That result would not only be ahistorical, but

also would threaten the vital social services and

valuable goals these organizations help the

government provide.

Finally, the Oklahoma Supreme Court’s holding

that St. Isidore is a state actor under the

“entwinement” test of Brentwood Academy is also

misplaced. The court focused on various regulations

imposed on St. Isidore and the provision of various

public benefits to charter schools and their employees

to find state action. It did so even though St. Isidore is

a private institution created by the Archdiocese of

Oklahoma City and the Diocese of Tulsa, and its

curriculum, vision, governing board, and teacher

selection—the aspects of a school that go most directly

to its character and substance—remained completely

in the control of St. Isidore. The Oklahoma Supreme

Court thus overlooked this Court’s other cases

addressing when a private entity becomes a public

actor. These cases teach that courts should focus on

substantive dominance and control by the

government, not the sort of regulatory oversight and

provision of benefits found here. This concept has

parallels in changes to the entanglement concept

under the Establishment Clause. Entanglement has

evolved from a formalistic concern about any

interactions between government and religious

entities to a substantive focus, consistent with

historical understandings of the Establishment

Clause, on the government intruding into religious

questions or religious institutions taking on

governmental powers.

Once it becomes clear that St. Isidore is a private

and not a state actor, Oklahoma’s exclusion of it from

the state’s charter program because of its religious

character cannot be squared with this Court’s free

exercise decisions. The decision of the Oklahoma

Supreme Court should thus be reversed.

ARGUMENT

I. The Oklahoma Supreme Court’s Holding

That “Free Public Education is Exclusively a

Public Function” Is Ahistorical.

The Oklahoma Supreme Court held that under the

public function test Oklahoma charter schools are

state actors because “free public education is

exclusively a public function.” Drummond ex rel. State

v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d

1, 12 (Okla. 2024). The court thus viewed public

education as a government function “traditionally

exclusively reserved to the State.” Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352 (1974).

The notion that publicly supported education is a

traditional and exclusively governmental function,

akin to police departments or the National Guard, is

ahistorical. This history, as set forth below,

demonstrates a robust cooperation between public

and private entities to educate our nation’s youth.

All the while, the Supreme Court has made clear,

in cases from Pierce v. Society of Sisters of the Holy

Names of Jesus and Mary, 268 U.S. 510 (1925), to

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

Carson v. Makin, 596 U.S. 767 (2022), that

education—including publicly supported education—

has never been a function reserved solely to the

government, and the state may not monopolize

education at the exclusion of religious partners.

Schooling is regularly and widely performed by

private entities, and this has been so since the

Founding. See, e.g., Ava Harriet Chadbourne, A

History of Education in Maine 111 (1936). That is

precisely why the Supreme Court, in Rendell-Baker v.

Kohn, 457 U.S. 830, 840–43 (1982), and lower courts

have declined to describe private schools as

performing an exclusive public function. See, e.g.,

Logiodice v. Trs. of Maine Cent. Inst., 296 F.3d 22, 26–

27 (1st Cir. 2002) (“Obviously, education is not and

never has been a function reserved to the state.”).

These holdings are supported by a robust historical

tradition of federal and state governments

establishing and funding private schools in ways that

do not create Establishment Clause concerns.

A. States have long provided for and even

helped establish religious schools.

States have provided funds to schools to support

religious education since the Founding. In the early

Republic, “there was no such thing as a secular school;

all schools used curriculum that was embued with

religion.” Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I:

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

2105, 2171 (2003). For example, the New England

states provided local schools with taxpayer funding,

and these schools took on an explicit religious

character by making “religious instructions and

devotions a normal part of their program.” Charles L.

Glenn, The Myth of the Common School 86 (1988).

These schools were de facto “Congregational parochial

schools,” and certain states even required the

teaching of Catechism. Richard J. Gabel, Public

Funds for Church and Private Schools 183, 201

(1937).

After the Founding period, education reformers

called for an expanded state role in education to shape

youth, instill moral habits, and preserve Protestant

cultural and religious hegemony. Diane Ravitch,

American Traditions of Education 11, in A Primer on

America’s Schools (Terry M. Moe ed., 2001). These

became known as common schools and “established

free, tax-supported public schools in every state”

where “Bible reading, hymn singing, prayers, and

recitation of the Lord’s Prayer” were common practice.

Id. See also John C. Jeffries, Jr. & James E. Ryan, A

Political History of the Establishment Clause, 100

Mich. L. Rev. 279, 297 (2001) (noting that the early

common schools boasted “Bible reading, prayer,

hymns, and holiday observances”). The cornerstone of

common schools was “least-common-denominator

Protestantism.” Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464, 503 (2020) (Alito, J., concurring)

(citation omitted). The common-school movement also

began to dominate mid-Atlantic states by the 1840s,

so much so that these states turned to general

taxation to support these schools. Gabel, supra, at

348–49, 374, 380. Even with government support,

religion informed all aspects of education, and midAtlantic states funded these schools fully aware of

this. Brief of Professor Charles L. Glenn as Amicus

Curiae in Support of Petitioners at 12–16, Carson v.

Makin, 596 U.S. 767 (No. 20-1088).

Throughout the 19th century, common schools

were essentially non-denominational Protestant

schools. See generally id. And these common schools

were government-sanctioned and supported. The core

value driving the common-school movement was that

public schools would serve as “an agent of moral and

social redemption,” with this transformation

stemming from “non-sectarian” religious teachings.

Lloyd P. Jorgensen, The State and the Non-Public

School, 1825–1925 23 (1987).

After the Civil War, these common schools evolved

into public schools as they are thought of today but

continued their robust religious practices like prayer

and Bible reading well into the 20th century. Glenn

Brief, supra, at 10. And throughout this period, many

state and local governments generously supported

religious schools through direct cash funding and land

grants. Gabel, supra, at 186, 190, 194. This period saw

the rise of Blaine Amendments. See Mitchell v. Helms,

530 U.S. 793, 828–29 (2000). Initially proposed as a

federal constitutional amendment and later adopted

in various state constitutions, these amendments

varied from state to state, but their goal was

consistent: to reduce competition for the common

schools from Catholic schools by preventing funds

either from going to any private school or to private

religious schools and institutions specifically. See, e.g.,

Philip Hamburger, Separation of Church & State 206

(2002).

The history of the Blaine Amendments illustrates

the give-and-take between public and private

education with regard to public funding in the United

States. The fact that those advocating for greater

state control and a reduction in private schooling saw

the need for Blaine Amendments is particularly

revealing. If it were universally assumed that schools

funded by the government were necessarily public

entities by definition, Blaine Amendments would not

have been needed at all by those who did not want

private schools receiving government funds. While

20th-century separationists argued that secular

public schools were the norm and Blaine Amendments

were meant to preserve this, the history is much more

complicated and shows a continually shifting balance

between public and private, religious, and nonreligious schooling. See Espinoza, 591 U.S. at 482–83.

B. The U.S. government supported religious

instruction for Native Americans in

Oklahoma and elsewhere.

The federal government’s funding of Native

American schools is particularly illustrative of the

way in which public support of education has long

included private religious entities. From the

Founding, the federal government was heavily

involved in efforts to educate Native Americans and

coordinated with religious missionary groups to do

so.2 Francis Paul Prucha, American Indian Policy in

2 An analysis of federal practice is particularly relevant to the

historical understanding of the Religion Clauses, as the federal

government was the only entity subject to the First Amendment

pre-incorporation. Marsh v. Chambers, 463 U.S. 783, 790–91

(1983).

the Formative Years: The Indian Trade and

Intercourse Acts, 1790-1834 220 (1962). For example,

the Jefferson Administration provided funding for a

Presbyterian mission school at which Native

American “children were taught to read from the Bible

and catechism, to say Christian prayers daily, and to

sing Christian hymns.” Charles L. Glenn, American

Indian/First Nations Schooling: From the Colonial

Period to the Present 52 (2011). Initiatives like these

only expanded during the Monroe Administration,

which provided federal funds to denominational

missions, with the “actual operation of schools” left to

religious organizations. Id. at 53–54.

By the mid-1850s, the federal government helped

to fund and establish almost 40 schools established by

religious missionary groups. K. Tsianina Lomawaima,

They Called It Prairie Light: The Story of Chilocco

Indian School 2 (1994). And federal dollars flowed

directly to these missionary schools well into the late

19th century. Espinoza, 591 U.S. at 481. The federal

government not only directed funds to these schools

but even supported their provision of religious

instruction. See, e.g., Donald L. Drakeman, Church,

State, and Original Intent 307 (2010).

At bottom, over four hundred Native American

boarding schools existed between 1819-1969; all had

robust financial support from the United States

government and were operated by Protestants,

Catholics, and/or the federal government itself. Bryan

Rindfleisch,

Negotiating

Assimilation

Missionization in Indian Territory vii (2024). Ninetyfive of these schools operated in Oklahoma, and eleven

of those were run by Catholics. Id. The first Native

American/Catholic boarding school opened in 1880 in

Konawa, ultimately closing in 1926. Id. And the final

one—St. Patrick’s in Anadarko—shut its doors in

1965. Id.

C. Modern trends reflect this historical

understanding of a public-private balance

in education.

The 20th century saw a continuation of the story

of competing visions for education between public and

private providers. In Pierce, the Court upheld the

right of parents to send their children to private,

religious schools and rejected a state government’s

attempt to monopolize education. 268 U.S. at 534–35.

As the Court made clear, “[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.” Id. at 535.

And in this spirit, states today—through vouchers,

educational savings accounts, and tax credit

scholarship programs—have expanded school choice

to improve outcomes and alleviate the high costs of

education. One such example involves the program

the Court upheld in Zelman, 536 U.S. at 644. To

address a crisis of underperforming schools in

Cleveland, the Ohio legislature enacted a scholarship

program that provided tuition assistance for students

to “attend a participating public or private school of

their parent’s choosing.” Id. at 645. This Court upheld

the program against Establishment Clause challenge.

Id. at 662–63.

Since Zelman, school choice programs and charter

schools have grown, but they are far from novel; they

are simply a modern iteration of the historic

partnership between private and public entities

providing education to America’s children.3

Oklahoma’s highest court overlooked this robust

historical tradition when it concluded that free public

education is the exclusive province of the state. Quite

the opposite, the history of American schooling

demonstrates a “cooperation between public and

private sectors to achieve valuable social goals.”

Ravitch, supra, at 13. Governments then and now

have found it necessary to collaborate with the private

sector for assistance, as “nonpublic organizations run

preschool centers, Head Start centers, after-school

programs, tutoring programs, and many other

educational services.” Id.

History, therefore, contradicts the idea that

publicly funded education necessarily entails a

singular “public function” carried out only by public

schools. History demonstrates the opposite: private

and religious entities working with the government in

various ways to educate America’s children. St.

Isidore is simply another example of this.4

See, e.g., Ravitch, supra, at 13–14 (Observing that charter

schools “may be the lineal descendant of the nineteenth century

academy . . . . The modern charter school, like the academy, has

an independent board of trustees, survives only because its

students choose to enroll, and receives public funding on a perpupil basis.”).

4 As a historical matter, charter schools are merely a new name

for a variation on an old concept. Oklahoma has labeled charter

schools as “public schools.” But this Court has held that the way

the state casts an entity is irrelevant to the substantive

II. Religious Organizations That Provide

Critical Social Services Do Not Become State

Actors Simply by Receiving Government

Funds.

Publicly funded schooling is just one example of

how governments have advanced their goals by

providing monetary support to private institutions.

Numerous other social services reflect the same idea.

Religious institutions have long offered a wide array

of social services such as adoption, foster care,

prisoner re-entry, court-mandated drug treatment

programs, and hospitals serving the poor, among

many others. They did so before—often long before—

governments offered similar services.

This Court has explained that the “Establishment

Clause must be interpreted by reference to historical

practices and understandings.” Town of Greece v.

Galloway, 572 U.S. 565, 576 (2014). The history of

government-funded social services bolsters the

conclusion that charter schools are not state actors.

See Fulton v. City of Philadelphia, 593 U.S. 522, 528–

29 (2021) (outlining the history of Catholic foster care

organizations in Philadelphia). From the Founding

until the present day, religious institutions have

provided important social services. See Bowen v.

Kendrick, 487 U.S. 589, 609 (1988). But these

constitutional analysis. Carson, 596 U.S. at 785 (explaining that

“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” and that is why cases like these turn on the substance

of the First Amendment and “not on the presence or absence of

magic words.”) (cleaned up).

institutions do not “metamorphose” into state actors

merely because they receive government funds. See

Johnson v. Rodrigues, 293 F.3d 1196, 1206 (10th Cir.

2002). To foist the state-actor moniker on religious

charter schools now would not only exclude religious

schools from receiving state funds, but also would

threaten the long tradition of government support for

and collaboration with private charities providing

necessary social services.

A. Religious institutions have a rich

tradition of providing critical social

services as an expression of their

respective faiths.

Alexis de Tocqueville observed that Americans

routinely “form associations” or “societ[ies]” to

“inculcate some truth or to foster some feeling by the

encouragement of a great example.” Alexis de

Tocqueville, 2 Democracy in America 106 (Phillips

Bradley, ed. and trans. 1990). Many Americans live

out their religious creeds through such voluntary

religious associations. They worship in churches,

synagogues, mosques, and temples. They study in

religious schools. And, because helping the needy is a

pillar of many faith traditions, they operate and

support charities and other organizations that provide

important services to the needy. See Kerry

O’Halloran, Charity and Religion, in International

Encyclopedia of Civil Society 109, 109 (Helmut K.

Anheier ed., 2010).

In accordance with these religious teachings,

religious institutions have provided social services to

the poor and the needy throughout the nation’s

history. See Steven V. Monsma, When Sacred and

Secular Mix: Religious Nonprofit Organizations and

Public Money 2, 8 (1996). This was true in the

Founding Era and remains true today.

1. Since the Founding Era, religious

institutions have provided a vast range

of social services, most of which

initially had no government analogue.

Religious organizations have “historically played a

vital role in one area of public service after another.”

Id. at 8. Indeed, such organizations have

“[t]ypically . . . been the first into areas of societal

need,” predating the entry of “[s]ecular agencies and

government.” Id. Thus, “[f]rom before the Republic’s

founding in the late eighteenth century, and through

much of the nineteenth century, social welfare was

dominated by voluntary, faith-based agencies.” Carl

H. Esbeck, Regulation of Religious Organizations via

Governmental Financial Assistance, in Religious

Organizations in the United States: A Study of

Identity, Liberty, and Law 349, 351 (James A.

Serritella et al. eds., 2006).

As a result, until the mid-19th century, religious

and faith-based organizations were often the sole

providers of certain social services in the United

States. Nieli Langer, Sectarian Organizations Serving

Civic Purposes, in Religious Organizations in

Community Services: A Social Work Perspective 137,

137–38 (Terry Tirrito & Toni Cascio eds. 2003). It took

the Civil War, the Great Depression, and the New

Deal to drive the “government [to undertake] a more

affirmative role” in providing similar charitable

services to those in need. Carl H. Esbeck, Government

Regulation of Religiously Based Social Service: The

First Amendment Considerations, 19 Hastings Const.

L.Q. 343, 350-51 (1992).

Fulton illustrates this rich tradition of religious

service. There, the Court analyzed whether

Philadelphia could bar a government-funded, Catholic

foster care agency from its foster care program

consistent with the Free Exercise Clause. 593 U.S. at

542. The Court highlighted the Catholic Church’s

centuries-long history of supporting orphans and

children in need of foster families, a mission continued

by the agency in that case. Id. at 528–29. The Court

further noted that “[f]or over 50 years,” the agency

had “successfully contracted” with Philadelphia “to

provide foster care services while holding to [its

religious] beliefs,” which “inform its work in this

system.” Id. at 530.

Justice Alito went on to demonstrate how

Christian and Jewish groups created some of the

nation’s first orphanages and foster care systems and

continue to maintain those programs today. See, e.g.,

id. at 547–48 (Alito, J. concurring). Eventually, in the

late-19th and early-20th centuries, “the care of

children was shifted from orphanages to foster

families” and “an influx of federal money spurred

States and local governments to take a more active

role.” Id. at 548. State and local governments created

“what is essentially a licensing system” to vet

potential foster parents and now work extensively

with religious nonprofits to provide adoption and

foster care placement. Id. But, when it comes to

adoption and foster care, state and local governments

“typically leave most of the work to private agencies.”

Id. at 617.

Private religious charities have historically

provided social services in a wide range of areas

beyond caring for orphans. For example, the Salvation

Army, a Christian organization, provides community

centers, rehabilitation, disaster relief, and other social

services to those in need. See The Salvation Army,

2023 Annual Report, https://perma.cc/8LSZ-KBPR.

The Salvation Army received $616 million in

government funds in 2022. Id. Similarly, motivated by

its mission “to embody Catholic social and moral

teaching,” Catholic Relief Service provides refugee

resettlement programs and emergency health

services. Catholic Relief Services, 2023 Annual

Report, https://perma.cc/G3XF-8SB7. In 2023, the

organization received $521 million in grants from the

U.S. government to fund these services. Id.

In the criminal justice context, faith-based

charities provide a range of government-funded

services, including court-mandated substance abuse

programs and re-entry programs. See Freedom from

Religion Found., Inc. v. McCallum, 324 F.3d 880, 883–

84 (7th Cir. 2003) (detailing the demonstrated value

of a religiously operated halfway house). Other faithbased organizations, such as the Dream Center, a

Christian non-profit affiliated with the Angelus

Temple Church, “provid[e] support to those affected

by homelessness, hunger, and the lack of education

through residential and community outreach

programs.” See Dream Center, Get to Know Us,

https://perma.cc/KU3G-FEVF. In 2012, this faithbased organization received a $49.7 million federal

grant to add more housing to its building in Los

Angeles. See Roger Vincent, Dream Center in L.A.

Expects $49.7-million Grant, L.A. Times (Aug. 27,

2012), https://perma.cc/NFW5-JBGA.

In short, although the states and the federal

government have become more dominant forces in

providing services to those in need, religious

institutions provided this care long before the

government ever did. And they continue to do so today

with the government’s support.

2. The Executive Branch has encouraged

government partnerships with faithbased providers.

In recent decades, presidents of both parties have

ratified the government’s funding of faith-based

providers of social services. In the 1990s, the Clinton

Administration encouraged the federal government to

contract with not-for-profit organizations, many of

which are faith-based, because charities are “more

flexible and responsive” to the needs of society.

Esbeck, Regulation of Religious Organizations, supra,

at 354.

In 2006, the Bush Administration issued guidance

explaining President Bush’s “belie[f] that the Federal

government, within the framework of Constitutional

church-state guidelines, should encourage faith-based

charities to” help those in need. Guidance to FaithBased and Community Organizations on Partnering

with the Federal Government, White House Office of

Faith-Based and Community Initiatives 1 (2006)

(“Bush Guidance”). Citing the “thousands of faith-

based and community organizations” receiving federal

funding, the guidance noted that “use of government

money by faith-based organizations is not new.” Id. at

2. For example, the guidance noted that “two-thirds of

Federally-supported residences for the elderly are

operated by faith-based organizations” and that

“about one in every six child-care centers is housed in

a religious facility.” Id.

Over the last two decades, each presidential

administration has stood by this position and

encouraged its agencies to fund faith-based

organizations meeting the needs of low-income and

underprivileged communities in our nation.5

Nor does providing funds for faith-based

organizations to provide social services negate their

unique protections under the Section 702 exemption

to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-1. Section 702 partially exempts religious

employers from Title VII’s non-discrimination

provisions, allowing the employer to employ persons

of a particular religion to carry out its activities. See

id.; see also U.S. Equal Employment Opportunity

Commission Guidance, Section 12: Religious

Discrimination, https://perma.cc/6NLX-QSDG. Under

this provision, faith-based organizations may operate

in accordance with their religious identity—an

accommodation

this

Court

upheld

against

Establishment Clause challenge in Corp. of Presiding

5 See, e.g., Exec. Order No. 13279, 3 C.F.R. 258 (2002); Exec.

Order No. 13559, 3 C.F.R. 287 (2010); Exec. Order No. 13831, 3

C.F.R. 149 (2018); Exec. Order No. 14015, 3 C.F.R. 191 (2021);

Exec. Order No. 14205, 90 Fed. Reg. 9499 (Feb. 12, 2025).

Bishop of the Church of Jesus Christ of Latter-Day

Saints v. Amos, 483 U.S. 327, 339 (1987).

Section 702 affords this protection even when a

religious organization receives government funding,

thereby ensuring that religious organizations retain a

right important to their religious identity. See Bush

Guidance, supra, at 13 (explaining that “[i]n general,”

unless another federal or state law provides

otherwise, a faith-based organization retains [the

§ 702] exemption even if it receives Federal, State, or

local financial assistance”). This has remained true

through the most recent federal rulemaking on faithbased partnerships. See Partnerships with FaithBased and Neighborhood Organizations, 89 Fed. Reg.

15,671, 15,684 (Mar. 4, 2024) (“Most of the Agencies’

regulations have long provided that a religious

organization that qualifies for that Title VII religiousemployer exemption is not precluded from invoking it

even in programs funded by Federal financial

assistance.”).

This nation has a storied history of supporting

social services through private charity. And this long

tradition is reflected in our modern approaches to

using government funds in support of organizations

that continue to provide such services.

B. Private entities providing social services

do not metamorphose into state actors.

As relevant here, this nation’s long tradition of

supporting and funding religious charities undercuts

any claim that these charities are state actors or that

this violates the Establishment Clause. Courts have

held time and again that receiving government funds

to provide such services is insufficient to turn a

charity into a state actor.

In Bowen v. Kendrick, the Court considered a

challenge to government-funded services provided by

“a wide variety of recipients,” including private

charities with “ties to religious denominations.” 487

U.S. at 597. The services included pregnancy testing,

adoption counseling and referral services, prenatal

and postnatal care, educational services, residential

care, childcare, and consumer education. Id. The

Court explained that it “has never held that religious

institutions are disabled by the First Amendment

from participating in publicly sponsored social welfare

programs.” Id. at 609. In fact, it had previously

concluded that giving federal funds to a hospital was

“entirely consistent” with the Establishment Clause.

Id. (citing Bradfield v. Roberts, 175 U.S. 291 (1899)).

The hospital’s religious affiliation was “wholly

immaterial” to the Court’s analysis. Id.

The same principle holds true across the spectrum.

Lower federal courts have held what was implicit in

Fulton: foster parents are not state actors. See United

States v. Peneaux, 432 F.3d 882, 896 (8th Cir. 2005);

Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005);

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341,

1348 (11th Cir. 2001). Neither are foster homes:

“[a]cross the country, there’s near uniformity that

foster homes do not count as state actors.” Howell v.

Father Maloney’s Boys’ Haven, Inc., 976 F.3d 750, 753

(6th Cir. 2020) (collecting cases). Nor are adoption

agencies: “To encourage private agencies to promote

adoption does not metamorphose private performance

into government activity.” Johnson, 293 F.3d at 1206.

Likewise, when reviewing the validity of providing

faith-based substance-abuse programs in a halfway

house, the Seventh Circuit reasoned that excluding

the program because of its religious connection “would

involve the sacrifice of a real good to avoid a

conjectured bad.” Freedom from Religion Found., 324

F.3d at 884. Put differently, providing funds to the

organization did not violate the Establishment

Clause—and thus did not turn the organization into a

state actor—because “[i]t would be perverse if the

Constitution required this result.” Id.

Finally, guidance and regulations from the G.W.

Bush Administration to the Biden Administration

make clear that religious social service providers

retain their right to hire persons of a particular

religion to carry out their work under the Section 702

exemption when receiving federal funding. See 89

Fed. Reg. at 15,684. This is a strong acknowledgement

that these providers are not state actors. The right to

employ persons of a particular religion is a right that

they never could have if they were state actors.

Accordingly, as one district court held, it does not

violate the Establishment Clause for the Salvation

Army to retain its Section 702 exemption for positions

in a program funded by the government. Lown v.

Salvation Army, Inc., 393 F. Supp. 2d 223, 251, 255

(S.D.N.Y. 2005) (explaining that a religious

organization that receives federal funds “is not a state

actor” and “is not required to waive its eligibility for

Section 702 protection”).

Religious organizations have long provided critical

services to the needy across the nation and retain

their essential religious character while doing so. And

courts have long permitted this without finding the

organizations to be arms of the state under the

Establishment Clause.

C. To hold that private charities providing

social services are state actors would

undermine the continued provision of

vital services.

Affirming the Oklahoma Supreme Court’s

exclusive-public-function analysis would open the

door to finding that whenever a religious charity

receives government funds, it is a state actor and

potentially subject to liability under civil rights laws.

As Judge Sutton has noted, if a claim under 42 U.S.C.

§ 1983 were permitted against foster care agencies,

“[i]t could cause some benevolent entities, otherwise

inclined to offer a charitable service for the State, to

‘abandon their plans.’” Howell, 976 F.3d at 754 (citing

Doe ex rel. Johnson v. S.C. Dep’t of Soc. Servs., 597

F.3d 163, 182 (4th Cir. 2010) (Wilkinson, J.,

concurring)). Specifically, if a faith-based entity

“becomes a state actor for federal constitutional

purposes,” he noted, “it could cause complications for

private entities that provide secular services in the

name of faith-based missions.” Id.

This is no idle threat. If religious entities were to

become state actors simply by receiving federal funds,

they would face a serious dilemma. They could

continue taking government funds to provide social

services and shed their religious identity. Or they

could stop receiving funding and decrease the

charitable services they offer. To be sure, many would

elect to maintain their free exercise rights instead of

adopting the state-actor moniker. But then the result

would be to diminish the number of social services

offered to the nation’s most needy.

President Bush’s guidance explained the

importance of allowing organizations to preserve their

religious identity, central to which is the ability to

select employees who share their vision. Bush

Guidance, supra, at 12. Without this essential right,

an organization loses its ability “to promote common

values, a sense of community and unity of purpose,

and shared experiences through service.” Id. An

organization should not have to strip its religious

identity to provide government-funded social services.

A religious organization does not need “to remove the

Star of David or the cross in [its] buildings in order to

deliver a Federally-funded service there.” Id. at 14.

Nor does it need “to change its identity—including its

name or chartering documents—in order to qualify for

a Federal grant.” Id.

Religious organizations are voluntary associations

that provide invaluable services to Americans—from

education to adoption to prison rehabilitation. If these

organizations become state actors, they will face

significant disincentives to continue accepting

government funding. Instead, the Court should affirm

that religious organizations are not state actors, a

conclusion aligned with history and tradition from our

nation’s founding until today.

III. There Is no “Entwinement” of the State

With St. Isidore or Other Private Charter

Schools.

In addition to finding St. Isidore to be a state actor

under the public function test, the Oklahoma

Supreme Court found it to be a state actor under the

“entwinement” test used in Brentwood Academy v.

Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288

(2001). See Drummond, 558 P.3d at 11.

The Oklahoma Supreme Court cited Brentwood

Academy for the proposition that “a nominally private

entity [i]s a state actor . . . when it is ‘entwined with

governmental policies,’ or when the government is

‘entwined in [its] management or control.”’ See id. at

11 (quoting Brentwood Academy, 531 U.S. at 296).

Here, the court found such entwinement in the

Oklahoma Charter School Board’s sponsorship of

charter schools, through which the board “provide[s]

oversight of the operation for St. Isidore, monitor[s] its

performance and legal compliance, and decide[s]

whether to renew or revoke [its] charter.” 538 P.3d at

11. The court also found entwinement because the

“charter schools also receive many of the same legal

protections and benefits as their government

sponsor.” Id. The court so held despite the fact that St.

Isidore’s curriculum, vision, board supervision, and

teacher selection—the aspects of a school that go most

directly to its character and substance—remained

completely in the control of St. Isidore, a private entity

created by the Archdiocese of Oklahoma City and the

Diocese of Tulsa. Oklahoma Pet. App. 7, 8.

The Oklahoma Supreme Court’s reliance on

Brentwood Academy was misplaced. This Court has

not invoked the test to decide a state action issue

since. Moreover, this Court’s other holdings regarding

when a private entity becomes a public actor teach

that courts should focus on substantive dominance

and control by the government, not the sort of

oversight and provision of benefits found here. See,

e.g., Rendell-Baker, 457 U.S. at 830–31, 841–42

(holding that absent “comp[ulsion] or . . . influence[]

by any state regulation,” even “extensive regulation”

of a private school is insufficient to make its discharge

of the school’s guidance counselor state action);

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S.

802, 815 (2019) (determining that the state’s

“extensive regulation of [plaintiff nonprofit]’s

operation of the public access channels does not make

[the nonprofit] a state actor”).

Brentwood Academy considered whether an

association regulating

interscholastic

athletic

competition among schools engaged in state action

when it enforced rules against its members. 531 U.S.

at 290. The Court noted that “state action may be

found if, though only if, there is such a ‘close nexus

between the State and the challenged action’ that

seemingly private behavior ‘may be fairly treated as

that of the State itself.’” Id. at 295 (emphasis added)

(citation omitted). There is nothing in the Oklahoma

Charter School program that makes the private

behavior of schools like St. Isidore actions “of the State

itself.” The Oklahoma Charter Schools Act provides

that the purpose of these charter schools is to

“[e]ncourage the use of different and innovative

teaching methods” and “create different and

innovative forms of measuring student learning.” 70

Okla. Stat. § 3-131(A)(3), (5). St. Isidore, through its

independent board and not the state, would develop

its own vision for the school, set the curriculum,

choose faculty, and establish its operational policies.

Oklahoma Cert. Pet. at 8. See also 70 Okla. Stat. § 3134 (outlining the application requirements the school

itself is responsible for developing and submitting to

the state).

The Brentwood Academy majority noted the other

state-actor tests used by this Court but instead

focused on the concept of entwinement. 531 U.S. at

296. This was likely a result of multiple unique factors

of the athletic association’s makeup. Public schools

and their officials constituted an overwhelming 84

percent of the athletic association’s membership. Id.

at 299. The two governing bodies of the athletic

association, the governing legislative council and

board of control, were composed entirely of public

school officials at the time the case was decided. Id.

Additionally, the Tennessee State Board of Education

members are ex-officio members of the two controlling

boards of the athletic association. Id. at 300.

Underscoring the fact-specific nature of Brentwood

Academy, four Justices dissented, observing that

“[t]he state-action doctrine was developed to reach

only those actions that are truly attributable to the

State, not to subject private citizens to the control of

federal courts.” Id. at 314–15 (Thomas, J., dissenting).

This Court has not relied on the entwinement holding

of Brentwood Academy in any subsequent holding.

The same degree of state involvement in

Brentwood Academy that supported entwinement

does not exist for charter schools. Far fewer than 84

percent of the charter schools in Oklahoma are public

schools: almost none of them are. With one exception,

they are all, like St. Isidore, privately created and

governed entities. See Okla. State Dep’t of Educ.,

Oklahoma Charter School Report 2023 5 (2023),

https://perma.cc/4GD9-CBS2.

Charter schools are also responsible for developing

their own curricula and policies, staffing their own

schools, and managing their own operations. See

Oklahoma Pet. App. 8. While the Charter School

Board would monitor St. Isidore’s operations for

compliance with certain standards, “[t]he mere fact

that [it] is subject to state regulation does not by itself

convert its action into that of the State,” Jackson, 419

U.S. at 350; neither does its employees’ eligibility for

many of the same benefits as public employees.

Brentwood Academy, 531 U.S. at 300.

The focus in this Court’s public actor cases on

substantive control by the government such that the

private entity’s actions may fairly be said to be that

“of the State itself,” rather than mere regulation, has

parallels in this Court’s treatment of entanglement in

Establishment Clause jurisprudence.

In Aguilar v. Felton, 473 U.S. 402 (1985), the Court

struck down a program paying for public school

teachers to provide remedial instruction at parochial

schools to qualifying students. The Court found a

violation of the entanglement prong of the test of

Lemon v. Kurtzman, 403 U.S. 602 (1971), in two

aspects of the program. First, it found entanglement

in the city’s “ongoing inspection . . . to ensure the

absence of a religious message” in the public teachers’

instruction while on the site of a “pervasively

sectarian” school. Aguilar, 473 U.S. at 412. It also

found

entanglement

in the

“administrative

cooperation that is required to maintain the

educational program” such as the parochial school

administration and the public school supervisors

“work[ing] together in resolving matters related to

schedules, classroom assignments, problems that

arise in the implementation of the program, requests

for additional services, and the dissemination of

information regarding the program.” Id. at 413.

This Court overruled Augilar in Agostini v. Felton,

521 U.S. 203 (1997), rejecting the notion that such

routine administrative interactions were improper

entanglements. The Court noted that “not all

entanglements . . . have the effect of advancing or

inhibiting religion. Interaction between church and

state is inevitable, and [the Court] ha[s] always

tolerated some level of involvement between the two.”

Id. at 233. The Court in Agostini thus “recast Lemon’s

entanglement inquiry as simply one criterion relevant

to determining a statute’s effect,” Mitchell v. Helms,

530 U.S. 793, 807–08 (2000), and Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 534 (2022),

repudiated Lemon entirely.

Yet this does not mean that government may

insert itself into religious questions or give religious

institutions governmental powers. See, e.g., Our Lady

of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732,

761 (2020) (reasoning that for a court to decide the

fitness of a minister “risk[s] judicial entanglement in

religious issues”); Larkin v. Grendel’s Den, 459 U.S.

116, 126–27 (1982) (holding that an ordinance

allowing churches to effectively veto the granting of

liquor

licenses

unconstitutionally

“enmeshes

churches in the processes of government”). But

various

interactions

between

religious

and

governmental entities that do not substantively

entangle them in each other’s respective religious or

governmental spheres do not violate the Constitution.

See, e.g., Town of Greece, 572 U.S. at 591–92 (holding

that opening town board meetings with a prayer was

not coercive and so did not entangle religion with the

state); Lynch v. Donnelly, 465 U.S. 668, 678–79, 685

(1984) (holding that, in including a creche in a public

park Christmas display, the City “d[id] not create

excessive entanglement between religion and

government,” and holding that question in reviewing

challenged conduct is “whether, in reality, it

establishes a religion or religious faith, or tends to do

so”).

Thus the Court rejected entanglement as a freestanding test in Establishment Clause jurisprudence

because it looked at interactions between government

and religious institutions formally rather than

substantively. So, too, should the Court reject the

Oklahoma Supreme Court’s focus on regulatory

interactions rather than on the fact that governance,

curriculum, vision, and selection and management of

faculty remains a private endeavor. Doing so would be

most consistent with this Court’s state-action

decisions, which focus on whether the “decisions of the

[private entity are] fairly attributable to the State,”

Rendell-Baker, 457 U.S. at 840, and would reaffirm

that “the fact the government licenses, contracts with,

or grants a monopoly to a private entity does not

convert the private entity into a state actor.” Halleck,

587 U.S. at 814. These decisions acknowledge that

private entities like charter schools operate within a

state-established framework, but also that “[a]ction

taken by private entities with the mere approval or

acquiescence of the State is not state action.”

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

52 (1999).

If charter schools, at least those like St. Isidore

that are run by private nonprofits and which account

for all but one of the charter schools in Oklahoma, are

not state actors, then there is no basis for excluding

those private nonprofits that are religious from the

program. As set forth above, the Oklahoma Supreme

Court erred in finding St. Isidore to be a state actor.

The history of education in the United States

undermines any argument that publicly funded

schooling is an exclusive governmental function. This

conclusion is only strengthened by the myriad social

services for which government enlists and funds

private entities and which do not make these charities

state actors. And the Oklahoma Supreme Court’s

reliance on “entwinement” to make St. Isidore a state

actor was misplaced and departed from this Court’s

precedents for determining when a private entity’s

actions can be deemed “that of the state itself.” St.

Isidore is simply not a state actor.

If St. Isidore is not a state actor, to exclude it from

the charter school program in Oklahoma solely

because of its religious character violates the Free

Exercise Clause. This Court held in Carson, 596 U.S.

at 787, that government educational funding

programs that include private schools may not

exclude religious private schools based on their

religious character. Id. (“[T]he Free Exercise Clause

forbids discrimination on the basis of religious

status.”). Likewise, in Espinoza, 591 U.S. at 476, this

Court stressed that while a state need not include

private schools in publicly funded educational

programs, “once a State decides to do so, it cannot

disqualify some private schools solely because they

are religious.” Id. at 487.

Nor does it make a difference if charter schools are

deemed indirect aid, as in typical school choice

programs, or as a form of direct aid. As this Court held

in Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (2017), a case involving direct

aid, when the government “discriminates against

otherwise eligible recipients by disqualifying them

from a public benefit solely because of their religious

character[,] . . . such a policy imposes a penalty on the

free exercise of religion that triggers the most

exacting scrutiny.” Id. at 462. Such non-neutral

treatment of religion is impermissible under our

Constitution. See Kennedy, 597 U.S. at 526 (“A

government policy will not qualify as neutral if it is

specifically directed at religious practice.”) (quotation

omitted).

CONCLUSION

For the foregoing reasons, the Court should

reverse the decision below.

Respectfully submitted,

STEVEN T.

MCFARLAND