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

Ask Donna

What actually matters in this document.

Text

No. 24-394 Vide No. 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,

Respondent.

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Oklahoma

BRIEF OF AMICI CURIAE EDCHOICE,

AMERICANS FOR PROSPERITY FOUNDATION,

ATLANTIC LEGAL FOUNDATION,

AND YES. EVERY KID. FOUNDATION.

IN SUPPORT OF THE PETITIONERS

Thomas M. Fisher

Counsel of Record

Bryan G. Cleveland

EDCHOICE LEGAL ADVOCATES

111 Monument Circle, Suite 2650

Indianapolis, IN 46204

(317) 681-0745

tfisher@edchoice.org

Counsel for Amici Curiae

Additional counsel listed inside cover

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Americans for Prosperity Foundation

Lawrence S. Ebner

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave NW,

Suite 200

(202) 872-0011

lawrence.ebner@atlanticlegal.com

Counsel for Atlantic Legal

Foundation

Lynn Swanson

YES. EVERY KID. FOUNDATION.

1310 N. Courthouse Rd

Arlington, VA 22201

(954) 299-0699

lswanson@yeseverykid.com

Counsel for yes. every kid.

foundation.

QUESTIONS PRESENTED

1. Whether the academic and pedagogical choices

of a privately owned and run school constitute

state action simply because it contracts with

the state to offer a free educational option for

interested students.

2. Whether a state violates the Free Exercise

Clause by excluding privately run religious

schools from the state’s charter-school program

solely because the schools are religious, or

whether a state can justify such an exclusion

by invoking anti-establishment interests that

go further than the Establishment Clause requires.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ...................................... v

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 3

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

Issuing a Charter to St. Isidore Does Not

Make it a State Actor ...................................... 6

A. St. Isidore was not created by, nor is it

controlled by, the state .................................. 6

1. St. Isidore is a private corporation ............ 7

2. A charter does not grant the state control

of St. Isidore ............................................... 9

3. St. Isidore is at most a government

licensee, and state oversight of its license

does not make it a state actor.................. 14

B. Oklahoma charter schools do not perform

exclusive public functions ............................ 15

C. The Court should limit Brentwood’s

“entwinement” test for state action

doctrine………………………………………….19

D. States can create systems of charter schools

that are state actors, but Oklahoma has not

done so .......................................................... 21

II. Students Benefit from Education Pluralism

Provided by a Market of Private Providers,

Including Religious Schools .......................... 23

CONCLUSION ......................................................... 31

APPENDIX ............................................................... 32

TABLE OF AUTHORITIES

Cases

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

526 U.S. 40 (1999) ................................................ 15

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) .....................5, 6, 19, 20, 21, 22

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

596 U.S. 767 (2022) .................................3, 5, 18, 19

Caviness v. Horizon Cmty. Learning Ctr., Inc.,

590 F.3d 806, (9th Cir. 2010) ......................... 15, 16

Columbia Broad. Sys., Inc. v. Democratic Nat.

Comm.,

412 U.S. 94 (1973) .......................................... 14, 21

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) .................................. 16, 17, 18

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ...................4, 6, 7, 9, 14, 15, 22

Lemon v. Kurtzman,

403 U.S. 602 (1971) .............................................. 20

Logiodice v. Trustees of Maine Cent. Inst.,

296 F.3d 22 (1st Cir. 2002) ................................... 16

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) .................................6, 9, 21, 22

Peltier v. Charter Day Sch., Inc.,

37 F.4th 104 (4th Cir. 2022) ................................. 17

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) .......................................... 4, 16

Robert S. v. Stetson Sch., Inc.,

256 F.3d 159 (3d Cir. 2001) .................................. 16

Wallace v. Jaffree,

472 U.S. 38 (1985) ................................................ 21

Statutes

Ga. Code § 20-2-690 ................................................. 13

Mont. Code § 20-5-109 ............................................. 13

Okla. Stat. tit. 70, § 3-136.................................. 12, 13

Okla. Stat. tit. 70, § 5-155.......................................... 8

Okla. Stat. tit. 70, §§ 7-101–7-206 ......................... 8, 9

Tenn. Code § 49-6-2606............................................ 13

Wis. Stat. § 118.30 ................................................... 13

Other Authorities

About Us, Harding Fine Arts Academy .................. 13

About Us, Le Monde International School .............. 14

Andrew McEachin, et al., Social returns to private

choice? Effects of charter schools on behavioral

outcomes, arrests, and civic participation, 76 Econ.

Educ. Rev., Article No. 101983 (2020) ................. 26

Anh Ngoc Nguyen et al., The estimated effect of

Catholic schooling on educational outcomes using

propensity score matching, 58 Bull. Econ. Rsch.

285 (2006) ............................................................. 30

Benjamin Scafidi, Ph.D., & Jonathan Butcher, The

Fiscal Effects of Expanding Mississippi’s

Education Savings Accounts, Working Paper No.

15, EdChoice (Dec. 2023)...................................... 27

vii

Chartered Schools = Choices for Educators + Quality

for All Students, Citizens League,

Nov. 17, 1988 ........................................................ 12

Claudio Sanchez, From A Single Charter School A

Movement Grows, Nat’l Pub. Radio,

Aug. 31, 2012 ........................................................ 23

David J. Fleming, Stephane Lavertu, et al., High

School Options and Post-Secondary Student

Success: The Catholic School Advantage, 21 J.

Cath. Educ. 1 (2018) ............................................. 29

Derek Neal, The effects of Catholic secondary

schooling on educational achievement, 15 J. Lab.

Econ. 98 (1997) ..................................................... 29

Douglas N. Harris & Feng Chen, The Bigger Picture

of Charter School Results, Educ. Next (last

updated April 18, 2022) ........................................ 25

Eugene Piccolo, Celebrating Chartering @ 30:

Minnesota’s Story, MN Ass’n Charter Schs. 2024

............................................................................... 11

Idaho Sets a Strong Example by Enhancing Charter

Schools, Mtn. States Pol’y Ctr (Mar. 2, 2024) ..... 27

James S. Coleman & Thomas Hoffer, Public and

Private High Schools: The Impact of Communities

(1987) .................................................................... 29

Joseph G. Altonji et al., Selection on observed and

unobserved variables: Assessing the effectiveness of

Catholic schools, 113 J. Pol. Econ. 151 (2005)..... 29

Joseph Prud’homme, The Potential of Catholic

Schools: Public Virtues Through Private Voucher,

25 J. Cath. Educ. 109 (2022) ................................ 29

viii

Julia W. Dallavis, Megan Kuhfeld, et al.,

Achievement Growth in K-8 Catholic Schools

Using NWEA Data, 24 J. Cath. Educ. 1 (2021) ... 29

Julie Trivitt & Patrick Wolf, School Choice and the

Branding of Catholic Schools, 6 Educ. Fin. & Pol’y

202 (2011) ............................................................. 28

M. Danish Shakeel, Patrick J. Wolf, et al., The

Public Purposes of Private Education: A Civic

Outcomes Meta-Analysis, 36 Ed. Psych. Rev. 40

(2024) .................................................................... 28

Margaret E. Raymond, Ph.D., et al., As a Matter of

Fact: The National Charter School Study III 2023,

Center for Research on Education Outcomes,

Stanford University, (June 16, 2023) ...... 24, 25, 27

Stephen Macedo, Diversity and Distrust: Civic

Education in a Multicultural Democracy

(2000) .................................................................... 29

Ted Kolderie, Ray Budde and the origins of the

‘Charter Concept,’ education evolving, June 2005

......................................................................... 10, 11

Tim Sass, Charter High Schools’ Effects on LongTerm Attainment and Earnings, 35 J. Pol’y

Analysis and Mgmt. 683 (2016) ........................... 26

Tong Tong, et al., Charter Schools: An Alternative

Option in American Schooling, 3 Encyclopedia 362,

(2023) .................................................................... 12

U.S. Dep’t of Educ., Nat’l Ctr. for Educ. Stats.,

Digest of Education Statistics, Table 216.10. 23, 24

Will Dobbie & Roland G Fryer Jr., The MediumTerm Impacts of High-Achieving Charter Schools,

123 J. Pol. Econ. 985 (2015) ................................. 26

William N. Evans & Robert M. Schwab, Finishing

high school and starting college: Do Catholic

schools make a difference?, 110 Q. J. Econ. 941

(1995) .................................................................... 29

Regulations

Okla. Admin. Code 777:10-3-3 ................................. 13

Constitutional Provisions

Okla. Const. art. 9, § 1 ............................................. 10

INTEREST OF AMICI CURIAE 1

EdChoice is a nonprofit, non-partisan organization

organized under section 501(c)(3) of the Internal Revenue Code that serves as a national leader in education-choice research, fiscal analysis, policy development, training, outreach, and legal defense. The mission of EdChoice is to advance education freedom and

choice for all as a pathway to successful lives and a

stronger society. EdChoice supports policies that afford families financial access to educational opportunities that best fit the needs of their children—

whether traditional public school, private school,

charter school, home school or any other learning environment.

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to educating and empowering Americans to address the

most important issues facing our country, including

civil liberties and constitutionally limited government. As part of this mission, it appears as amicus

curiae before federal and state courts.

Established in 1977, the Atlantic Legal Foundation (ALF) is a national, nonprofit, nonpartisan, public interest law firm. ALF’s mission is to advance the

rule of law and civil justice by advocating for individual liberty, free enterprise, property rights, limited

and responsible government, sound science in judicial

and regulatory proceedings, and effective education,

1 No party or its counsel authored any of this brief, and no person

other than amici curiae, their members, or their counsel contributed monetarily to this brief.

including parental rights and school choice. With the

benefit of guidance from the distinguished legal scholars, corporate legal officers, private practitioners,

business executives, and prominent scientists who

serve on its Board of Directors and Advisory Council,

ALF pursues its mission by participating as amicus

curiae in carefully selected appeals before the Supreme Court, federal courts of appeals, and state supreme courts. On the crucial subject of parental

school choice, ALF has continued to promote the effective education of the nation’s young students on behalf of charter schools through ALF’s Leveling the

Playing Field series of state-specific guides for charter school leaders. See atlanticlegal.org.

yes. every kid. foundation. (“Yes Foundation”) believes that each child is different and deserves access

to programs, services, courses, and schools that are

designed to meet their unique interests and aptitudes. The goal is not to standardize children: it is to

allow every kid to discover, develop, and apply their

talents to realize their full potential. Yes Foundation

is devoted to unlocking the extraordinary potential of

every kid. We promote education that empowers families, helps implement bottom-up solutions, and advances education freedoms.

As national organizations dedicated to ensuring

families every available educational option for their

children, amici are interested in the outcome of this

case. Expansion of the state action doctrine could define private schools that participate in choice programs to be state actors, restricting student access to

innovative schools, including religious schools.

SUMMARY OF THE ARGUMENT

The Court held in Carson as next friend of O. C. v.

Makin, 596 U.S. 767 (2022), that the Free Exercise

Clause prohibits discrimination in public benefits programs against religious schools providing religious

education. But the Court’s Establishment Clause

precedents prohibit state entities from offering religious instruction. The line between the two turns on

the operation of state action doctrine, which tells

when a private entity must be treated as a state actor.

Here, no arm or agency of the State of Oklahoma

(or one its local governments) seeks to provide religious instruction—or even to require others to do so.

Rather, the theory embraced below by the Oklahoma

Supreme Court is that granting a charter to the private, non-profit corporation St. Isidore of Seville

Catholic Virtual School violates the Establishment

Clause by alchemizing St. Isidore into a state actor

engaged in the business of providing religious instruction. So, the critical question is whether private education providers become state actors in their instruction simply because they sign a contract with the state

to provide education services in exchange for government grants.

The answer must be no, a charter does not convert

a private entity into a state actor for all purposes,

with the consequence that denying the charter to St.

Isidore amounts to the same form of discrimination

outlawed by the Free Exercise Clause per Carson. Because government neither creates Oklahoma charter

schools nor controls their curriculum, such charter

schools do not satisfy the requirements for state action set forth in Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995). Government issuance of a charter—which is merely a written agreement—to a private entity does not create the entity or change its

fundamental legal status. And because an Oklahoma

charter school like St. Isidore retains autonomy over

instruction (including religious instruction), it does

not educate children as a state actor even if it carries

out government admissions policy.

Furthermore, offering free education services to

families on an all-comers basis is not a traditional and

exclusive government function that justifies finding

state action. The Court has previously held that education in gross is not an exclusive government function under state action doctrine. See Rendell-Baker v.

Kohn, 457 U.S. 830, 842 (1982). Accordingly, assessment of whether a school’s action is a state action

must occur based on the particular action at issue.

Here, the critical question is not whether legally

required admissions policies constitute state action

when implemented by a charter school. (If they do, a

person injured by those admissions policies might

challenge them using the Bill of Rights.) The question, rather, is whether the legally protected instructional autonomy of Oklahoma charter schools constitutes state action—a question not answered by reference to admissions policies. And because the whole

point of modern charter school programs is to foster a

marketplace of state-supported schools that provide

something other than state-mandated curriculum, it

would make little sense for that instruction to be

deemed state action. Besides, free private schools do

exist, and not even all government schools are open to

all comers.

The Oklahoma Supreme Court’s declaration that

charter schools are state actors because they provide

“public education” reintroduces Maine’s failed argument in Carson, supra. The Court has already rejected a state’s attempt to redefine private use of public benefits as the functional equivalent of state action; it should likewise reject the theory that open admissions makes charter education “public education.”

Nor should the Court extend to charter schools the

open-ended, impressionistic “entwinement” inquiry of

Brentwood Acad. v. Tennessee Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 291 (2001). Brentwood undermines traditional as-applied state action tests and

here allowed a state contract to convert a private entity into a state actor for all purposes. The Court

should narrow Brentwood to its unique facts or at

least conclude that Brentwood does not apply here.

Finally, expanding charter school pluralism to include religious curriculum would benefit students.

Charter schools have achieved better outcomes for

students with their existing flexibility in curriculum.

Because Catholic options have succeeded in other

school choice programs, including them in the pluralistic offerings of charter schools would likely advance

the success of charter schools.

ARGUMENT

I. Issuing a Charter to St. Isidore Does Not

Make it a State Actor

Three tests are potentially relevant to the state

action inquiry. First, private actors are state actors if

they are “Government-created and -controlled

corporations.” Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374, 397 (1995). Second, private actors can

become state actors for some purposes “(i) when the

private entity performs a traditional, exclusive public

function, (ii) when the government compels the

private entity to take a particular action, or (iii) when

the government acts jointly with the private entity.”

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

802, 809 (2019) (citations omitted). Third, the Court

once found state action when a private entity was

“entwined” with the state. Brentwood Acad. v.

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

288, 291 (2001). A state charter would not qualify St.

Isidore as a state actor under any of these tests.

A. St. Isidore was not created by, nor is it

controlled by, the state

Without analysis, the Oklahoma Supreme Court

simply declared that a charter school is a “statecreated entity.” Pet.App.21a. 2 This assumption is

both factually inaccurate and legally mistaken. The

Oklahoma legislature’s mere fiat that charter schools

are “public” schools is not determinative of the state

All appendix citations are to the Petitioner’s Appendix in No.

24-394.

action inquiry, which turns on the substance of the

entity’s activities. Neither a statutory label nor a

contract with the government—even one that

denominates the school “public”—converts a private

entity into a state actor.

1. St. Isidore is a private corporation

In Lebron, 513 U.S. at 394–99, the Court looked

past statutory disclaimers of agency status and

deemed Amtrak a state actor based on its legislative

creation and executive branch control. Congress

established Amtrak as a for-profit company

incorporated under the District of Columbia Business

Corporation Act. See id. at 384–85. The company had

a nine-member board of directors, with the President

of the United States appointing six members. See id.

at 385. Holders of Amtrak’s preferred stock, a group

that included only the United States at the time of the

case, appointed two directors. See id. (The company

president, chosen by the eight other directors, was the

ninth. See id.) Such corporate structure, however, did

not make Amtrak a private entity for advertising

speech purposes; the Court concluded that the

combination

congressional

creation

and

presidential control (via the board) meant Amtrak

must obey the First Amendment. See id. at 394–99.

In contrast, the State of Oklahoma did not create

St. Isidore—by issuing it a charter or otherwise. Two

private religious entities, the Archdiocese of

Oklahoma City and the Diocese of Tulsa, formed the

non-for-profit corporation St. Isidore of Seville Virtual

Charter School, Inc. Pet.App.217a, 225a. The

corporation exists regardless of whether it obtains a

charter, which merely opens a funding stream to

finance the school.

Nor does St. Isidore carry the features of

traditional public schools, which are typically

organized as corporations for public purposes rather

than as private non-profits. See Appendix. States use

different names—variations on “body corporate and

politic,” “local education agency,” “quasi-municipalcorporation,” etc.—but all are easily recognizable as

government entities. Id. All are governed by boards

that are either publicly elected or appointed by an

elected official. Id. And nearly all possess some core

government power of taxation. Id. In keeping with

most states, Oklahoma’s traditional public schools are

organized as bodies corporate and politic with at least

some power to impose taxes (via the county excise

board). Okla. Stat. tit. 70, § 5-155. St. Isidore is not.

A private entity cannot create a traditional public

school district in Oklahoma the way it can create a

charter school like St. Isidore. Naturally, since all

areas of the state currently fall within a public school

district, any new district may be created only by way

of a formal and cumbersome consolidation or

annexation process. See Okla. Stat. tit. 70, §§ 7-101–

7-206. In a consolidation, either the boards of the

affected districts or a majority of electors of each

affected existing district must petition the State

Board of Education. See id. § 7-105. Then, residents

within the proposed district boundaries must vote to

approve it. See id. With annexation, the boards of the

affected districts may call for an election, or a

majority of electors in the affected areas may petition

the State Superintendent for election. See id. § 7-101.

The State Board of Education may also order

mandatory annexation or consolidation. See id. § 7101.1. Even after a successful annexation vote, a

petition signed by 25% of eligible voters triggers

judicial remonstrance. See id. § 7-101(c)(4). No such

government, electoral, or citizen participation occurs

in the creation of a charter school.

As these features of the Oklahoma government

school system demonstrate, charter schools are not

state schools in any sense material to the First

Amendment. A state cannot merely deem an entity to

be part of the state (or not) and have that label

control. See Lebron, 513 U.S. at 392–93. What matters

instead is whether the state creates or exerts

meaningful control over the school.

2. A charter does not grant the state

control of St. Isidore

Pivoting to a theory of state control, the Oklahoma

Supreme Court equated contractual oversight with

control over the entity performing the service.

Pet.App.21a. But under that theory, every

government contractor is a state actor when acting

under a contract—an outcome squarely at odds with

a long line of precedent holding that a mere contract

or license from the government does not create a state

actor. Manhattan Cmty. Access Corp., 587 U.S. at 814

(collecting cites).

The State of Oklahoma does not control St.

Isidore’s instruction by virtue of its charter. Under

Oklahoma law, the “charter” issued by the state to a

school does not do the work needed to convert private

entities into state actors. The Oklahoma Constitution

requires the state to grant charters to all corporations

in Oklahoma as their formation document. Okla.

Const. art. 9, § 1. Thus, the mere receipt of a state

charter cannot convert a corporation into a state

actor. The terms of a particular charter matter. Under

the modern concept of a charter school, the

fundamental idea is that a private entity executes a

written contract with a chartering entity (often a

government entity, but not always) to provide private

instruction financed by public dollars.

Some history of charter schools may help

illuminate the point. Use of the word “charter” for a

school originated with a paper by Professor Ray

Budde at the University of Massachusetts in 1974.

See Ted Kolderie, Ray Budde and the origins of the

‘Charter Concept,’ education evolving, June 2005. 3

Although his paper gained little traction then, he

republished it in early 1988 and found greater

popularity. See id.

Drawing on the historical use of charters more

broadly, Budde explained eight features of

educational charters. See id. at 49–52. First, “there is

a grantor—a person or group in authority.” Id. at 49.

Second, “the charter was granted to the grantee—

someone with a vision or a plan.” Id. Third, “[t]he

3 https://www.educationevolving.org/files/Ray_Budde.pdf

charter usually called for exploration into unknown

territory and involved a degree of risk to the persons

undertaking the exploration.” Id. Fourth, “[a] charter

implied both the idea of a franchise and the idea of

competition.” Id. Fifth, “[t]he grantor of the charter

provided the supplies and resources for the enterprise.”

Id. at 51. Sixth, “[t]he charter contained within it

specific directions for the grantee and a definite length

of time for him to complete the activity.” Id. Seventh,

“[t]he charter spelled out in detail the pay or rewards

for the explorer.” Id. Eighth, “[t]he charter provided a

means for the explorer to be accountable to the grantor

for results in a very specific way.” Id.

In more concrete terms, Professor Budde proposed

that groups of teachers could receive educational

charters so that they, not public school district

management,

would

control

decisions

over

curriculum and instruction. See id. at 8, 55. His

proposal thus contemplates substantial autonomy for

charter recipients over instructional content, both

through his emphasis on the enterprise’s vision, plan,

risk and competition, and through his model for

teachers to run schools independent of public school

district control.

Minnesota enacted the first charter school law on

Budde’s model, following ideas laid out in a report by

the Citizens League. See Eugene Piccolo, Celebrating

Chartering @ 30: Minnesota’s Story, MN Ass’n

Charter Schs. 2024, at 1. 4 That report laid out a plan

4 https://mncharterschools.org/_uls/resources/Celebrat-

ing_Chartering_for_30_Years_-_Minnesotas_Story.pdf

for charter schools where “[t]he group receiving the

charter would control the operation of the chartered

public school” and “would organize themselves in a

manner consistent with state law (as nonprofits,

cooperatives, or for-profits).” See Chartered Schools =

Choices for Educators + Quality for All Students,

Citizens League, Nov. 17, 1988, at 24. 5 The report

states that a “chartered school” is “granted a ‘charter’

by either a school district to be different in the way it

delivers education, and within broad guidelines, to be

autonomous.” Id. at i. Here again, instructional

autonomy was a key component of the charter school

model.

From this history, one must infer that the central

value of charter schools is to offer public school

admissions paired with alternative curriculum and

instruction. See, e.g., Tong Tong, et al., Charter

Schools: An Alternative Option in American

Schooling, 3 Encyclopedia 362, 362 (2023). 6 They are

defined by “greater autonomy than traditional public

schools over operations, curriculum, and instruction.”

Id. In short, the whole point of charter schools is not

to deliver government-generated instruction.

In line with this history and understanding of

charter schools, the Oklahoma Charter Schools Act

retains state control over finances but grants

autonomy over curriculum and instruction. Okla.

Stat. tit. 70, § 3-136(A)(1)–(3). They “may offer a

5 https://citizensleague.org/wp-content/uploads/2017/07/Poli-

cyReportEducationNov-1988.pdf

6 https://www.researchgate.net/publication/369355858_Charter_Schools_An_Alternative_Option_in_American_Schooling

curriculum which emphasizes a specific learning

philosophy or style” so long as the “programs,

admission policies, employment practices, and all

other operations” are nonsectarian. Id. While the

state may control some policies (like the admissions

policy) through regulation, that regulation does not

grant total control over other aspects of the school—

such as instruction. The only restrictions on

curriculum and instruction are that it cannot be

religious and that it cannot duplicate what is provided

at the Oklahoma School for the Blind or Oklahoma

School for the Deaf. Id. § 3-136(A)(3). Otherwise, the

instruction only needs to align with Oklahoma

academic standards. Okla. Admin. Code 777:10-33(b)(5)(G). Charter school students must learn core

subjects like reading or math to succeed on

assessments, but the instruction used to teach those

subjects is left to the school’s discretion. Similar

minimum instruction requirements are not unusual

for private schools. See Ga. Code § 20-2-690(b)(4);

Mont. Code § 20-5-109(4). Likewise, some states

require state assessments for private schools in choice

programs just as they do for charter schools. See, e.g.,

Tenn. Code § 49-6-2606(a); Wis. Stat. § 118.30(1t).

The result is that Oklahoma charter schools offer

a wide variety of instruction. For example, Harding

Fine Arts Academy offers an arts-integrated

curriculum with instruction from some of the finest

artists and musicians in Oklahoma City. See About

Us, Harding Fine Arts Academy. 7 Another school, Le

Monde International School, offers French and

7 https://hardingfinearts.org/about-us/

Spanish immersion curriculum that allows students

to select either language an improve their academic

excellence through bilingualism and the integration

of cultural awareness in addition to rigorous

instruction. See About Us, Le Monde International

School. 8 These schools integrate their respective arts

and language training into core academic subjects,

just as St. Isidore would be entitled to do with its

religious lessons.

3. St. Isidore is at most a government

licensee, and state oversight of its

license does not make it a state actor

Instead of a state-created and -controlled entity

like Amtrak in Lebron, charter schools like St. Isidore

are more analogous to a licensed entity. While

government oversight of a licensee can be extensive,

such oversight is not the sort of control that converts

a licensee into a state actor. The Court in Columbia

Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S.

94, 97–100, 118–121 (1973), for example, rejected the

argument that the FCC became a “partner” or

“engaged in a ‘symbiotic relationship’” with a radio

station whose advertising policy it was asked to

review.

The Oklahoma Statewide Charter School Board’s

review of a proposed charter is not materially

different. No one disputes that the Board is a state

actor when approving a charter for St. Isidore, just as

no one disputed that the FCC was a state actor when

8 https://www.lemondenorman.org/apps/pages/in-

dex.jsp?uREC_ID=3785579&type=d&pREC_ID=2449227

reviewing complaints about a radio licensee. So, just

as radio licenses do not convert radio stations into

state actors, written charters do not convert schools

into state actors. See also, e.g., Caviness v. Horizon

Cmty. Learning Ctr., Inc., 590 F.3d 806, 817 (9th Cir.

2010) (“the authority to approve and review the

school’s charter” does not “convert its action into that

of the State”) (quoting Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 52 (1999)).

Oklahoma charter schools in no way fit the model

of a “government created or controlled enterprise”

constituting a state actor, especially in the instruction

they offer. They are at most akin to government

licensees—a status the Court’s precedents deem

insufficient for state action.

B. Oklahoma charter schools do not perform

exclusive public functions

Even if the Court looks beyond the “state creation

and control” test set forth in Lebron and considers the

exclusive government function inquiry entertained by

the decision below, Oklahoma charter schools are not

state actors. The Oklahoma Supreme Court said they

were because charters offer a traditional and

exclusive public function, i.e., “public education.” But

that attempt to define away the state action inquiry

focuses on charter schools’ open admission policies

rather than their more relevant activity—instruction.

This is a substantive inquiry that cannot be resolved

by inserting the word “public” before “education” and

“public” before “function” to create a definitional

fallacy based on a word “public” with no fixed legal

import. Jackson v. Metro. Edison Co., 419 U.S. 345,

353 (1974) (“In several of the decisions of this court

wherein the expressions ‘affected with a public

interest,’ and ‘clothed with a public use,’ have been

brought forward as the criteria . . . it has been

admitted that they are not susceptible of definition

and form an unsatisfactory test . . . .” (citation

omitted)).

Education writ large is not a traditional and

exclusive public function, per Rendell-Baker v. Kohn,

457 U.S. 830, 832–33, 842 (1982), where the Court

held that a private school funded almost entirely by

government grants was not a state actor vis-à-vis

teachers and counselors. The Court observed “[t]hat a

private entity performs a function which serves the

public does not make its acts state action.” Id. Even if

“the State intends to provide services for such

students at public expense,” that intent “in no way

makes these services the exclusive province of the

State.” Id. See also Caviness, 590 F.3d at 814–15

(rejecting the argument that “public educational

services” are distinct from “educational services”);

Logiodice v. Trustees of Maine Cent. Inst., 296 F.3d 22,

27 (1st Cir. 2002) (concluding that publicly funded

education of last resort is not exclusively a state

function in view of town-tuitioning programs that

contract with private schools); Robert S. v. Stetson

Sch., Inc., 256 F.3d 159, 164–65 (3d Cir. 2001)

(concluding that a publicly funded school contracting

with a state agency to serve sex offenders was not

performing an exclusively public function).

The Oklahoma Supreme Court avoided that

precedent by declaring the function at issue to be not

merely “education” but “public education.” Yet, it said

the defining characteristic of “public education” is not

the content of instruction, but student admissions

policy, i.e., “free, universal” education. Pet.App.22a–

23a (citing Peltier v. Charter Day Sch., Inc., 37 F.4th

104, 116 (4th Cir. 2022) (en banc)). State action

doctrine, however, focuses on the action at issue, not

all potential actions of the actor in question. Jackson,

419 U.S. at 352–53. Here, the relevant action is

instruction—specifically religious instruction, which

is decidedly not an exclusive state activity (even if it

once was a traditional one).

Even on its own terms, the reframed definition of

services as “free and universal education” fails.

Tuition-free private schools exist. See, e.g., Serviam

Girls Academy (tuition-free private school in

Wilmington Supreme, DE) 9; De Marillac Academy

(tuition-free private Catholic school in San Francisco,

CA). 10 And no government school is open to the entire

universe of students. Such schools have geographical

boundaries, after all. Even with the advent of liberal

inter-district transfer policies, government schools

must exclude some transfer students once they reach

capacity. Those real-world circumstances defeat the

Oklahoma Supreme Court’s theory of what critical

features constitute traditional and exclusive

government activity. As recounted above, genuine

public schools have a special government corporate

9 https://serviamgirlsacademy.org/

10 https://www.demarillac.org/

status, some measure of taxation authority, and

public election accountability. See supra Part I.A.1.

Regardless, the “free and universal” nature of

charter schools could at most justify treating

admissions activities—but not instruction—as state

action. It cannot, under Jackson, 419 U.S. at 352–53,

justify treating charters as state actors in gross.

It bears observing that the Oklahoma Supreme

Court’s “public education” theory echoes Maine’s

failed argument in Carson that its “equivalent” of

public education in rural areas was private education

that bans religion. Carson as next friend of O. C. v.

Makin, 596 U.S. 767, 784 (2022). The Court rejected

Maine’s attempt to reframe the activity at stake by

distinguishing between instruction purchased by the

state (which must respect contractors’ free exercise

rights) and instruction provided by the state in

government-operated schools (which must respect the

Establishment Clause). See id. at 785.

On this score, the decision below cannot be

squared with Carson. In the Oklahoma Supreme

Court’s view, Maine could have enforced a ban on

religious instruction by requiring that all schools

accepting scholarships have an admissions policy of

accepting any scholarship student. The admissions

policy would make the curriculum “public education”

without further analysis, requiring a ban on religion.

Under that view, Maine’s error was not regulating

enough to avoid the Free Exercise Clause. To say the

least, that is an improbable reading of Carson.

In sum, the Oklahoma Supreme Court’s twist on

state action doctrine erred by focusing on the wrong

action. Courts cannot look to admissions policies to

decide whether instruction constitutes state action.

The Court should not countenance an attempt to

evade Carson by manipulating state action doctrine

in this manner.

C. The Court should limit Brentwood’s

“entwinement” test for state action

doctrine

The Oklahoma Supreme Court also held that

charter schools are state actors by expanding the

Court’s Brentwood entwinement test—a novel and

alarming outcome for any private entity working with

the government. The Court should cabin Brentwood

to stop overreaching use of its open-ended, malleable

standard.

Brentwood created the entwinement test to

address the unusual phenomenon whereby a private,

non-profit association controlled by traditional public

schools governed nearly all high school athletics in

the State of Tennessee. Brentwood, 531 U.S. at 291.

Traditional public schools composed 84% of the

Tennessee Secondary School Athletics Association’s

membership, public school employees operated the

association, and half the meetings took place during

school hours. See id. at 298–99. When the association

decided the athletic discipline at issue, “all the voting

members of the board of control and legislative

council were public school administrators.” Id. at 293

(emphasis added). Thus, although the association was

technically a private entity, its operation by school

employees and often during school hours convinced

the Court that it had a “pervasive entwinement to the

point of largely overlapping identity” with the state.

Id. at 303.

This “entwinement” test was both novel and illdefined. As the four dissenting justices observed, the

Court had “never found state action based upon mere

‘entwinement’” until that case. Id. at 305 (Thomas, J,

joined by Rehnquist, C.J., Scalia, J., and Kennedy, J.,

dissenting). The Court did not apply the traditional

tests for state action, see id. at 303 (majority opinion),

nor would those tests have yielded a finding of state

action, see id. at 308–311 (dissenting opinion).

Instead, the Court applied “normative judgment”

using “criteria lack[ing] rigid simplicity.” Id. at 295.

The dissenting justices predicted that the “factspecific analysis” might “have little bearing beyond

this case.” Id. at 314 (dissenting opinion).

The decision below demonstrates how Brentwood

can be misused if not cabined to its facts.

Pet.App.20a–21a. The Oklahoma Supreme Court

drew no parallels to the facts in Brentwood; instead,

it performed a general search for government

involvement, as if “entwinement” is a roving, “know it

when we see it” standard. See id. The result recalls

the discarded “excessive entanglement” test of Lemon

v. Kurtzman, 403 U.S. 602 (1971), which created an

“insoluble paradox” dissuading states from any

regulation that could affect sectarian institutions

participating in government programs lest the mere

act of regulation create an Establishment Clause

violation. Wallace v. Jaffree, 472 U.S. 38, 109–10

(1985) (Rehnquist, J., dissenting) (citations omitted).

Because the Court has not applied the

entwinement test before or since Brentwood, it should

expressly limit Brentwood to the context of high

school athletic associations run entirely by public

schools. The Court’s most recent state action decision,

Manhattan Community Access Corporation, ignored

Brentwood except for one general proposition. 587

U.S. at 808. And more generally, when a private

entity is not (1) performing a traditional, exclusive

public function, (2) acting under compulsion from the

government, or (3) acting jointly with the

government, it is unlikely otherwise to injure anyone

in a way that demands accountability under the Bill

of Rights.

In all events, the Court should not apply

Brentwood here. Columbia Broadcasting forecloses

any argument that the Statewide Charter School

Board is part of St. Isidore’s religious instruction, and

no evidence suggests some other hallmark of state

action by St. Isidore.

D. States can create systems of charter

schools that are state actors, but

Oklahoma has not done so

As should be evident from reviewing state action

doctrine and the nature of a charter above, states

could create charter schools that are state actors. In

Oklahoma, a “charter school” denotes a written

agreement between the state and a private actor free

from government control over instruction. But other

models are available, and the “charter school” label

does not always have to mean the same thing.

A state could, for example, create stand-alone

charter schools via legislation and subject them to the

control of elected government officials, as happened in

Lebron. See 513 U.S. at 384–85. Or, a state could have

a system for creating charters by citizen petition and

public election, with the resulting school governed by

an elected board, akin to Oklahoma’s school

consolidation system. See supra Part I.A.1. Or, a

government charter sponsor could require that its

officials control the board governing the school.

The Oklahoma Supreme Court’s solution of

following the malleable Brentwood test undermines

clarity for private entities regarding the terms of their

contracts with the government. By applying the rules

from Lebron and Manhattan Community Access

Corporation and disavowing Brentwood, the Court

would leave a path for states that so desire to design

a charter system where the schools are state actors.

Such a result would preserve the ability of states to

adjust what constitutes a charter school while also

retaining clarity for private entities on the terms of

their arrangements with the government.

II.

Students

Benefit

from

Education

Pluralism Provided by a Market of

Private Providers, Including Religious

Schools

Charter schools perform better than traditional

public schools precisely because they are freed from

the strict curriculum restrictions that apply to

traditional public schools. Their pluralistic approach

to curriculum has led to significant success as an

education model. Catholic schools have also been

valuable in promoting education in other school

choice programs, and their participation in charter

schools would contribute to the success of the

pluralistic charter model.

1. Charter schools are not new in American K-12

education. The first charter school in America opened

its doors in 1992. Claudio Sanchez, From A Single

Charter School A Movement Grows, Nat’l Pub. Radio,

Aug. 31, 2012. 11 And in thirty-plus years since, fortysix states and the District of Columbia have adopted

charter school laws, 7,998 charter schools have

opened, and in the 2022–2023 school year (the most

recent year with available data) charter schools

educated over 3.7 million American students. U.S.

Dep’t of Educ., Nat’l Ctr. for Educ. Stats., Digest of

Education Statistics, Table 216.10: Number of public

elementary and secondary schools, by school level,

type, and charter, magnet, and virtual status: School

11 https://www.npr.org/2012/09/02/160409742/from-a-single-

charter-school-a-movement-grows

years 2012-13 through 2022-23; 12 Id. Table 216.20:

Enrollment of public elementary and secondary

schools, by school level, type, and charter, magnet,

and virtual status: School years 2012-13 through

2022-23. 13 This long history has provided much data

on the innovation and success of charter schools.

Many researchers have analyzed academic

performance and other key indicators for students

attending charter schools. Compared with their noncharter school peers, students attending charter

schools have seen increases in learning gains, higher

standardized test scores, better high school

graduation rates, higher college enrollment and

persistence rates, and higher earnings. In a recent

2023 study, researchers at the Center for Research on

Education Outcomes (“CREDO”) found that despite

“flat performance” for the nation generally, charter

school students saw “large and positive” learning

gains. Margaret E. Raymond, Ph.D., et al., As a

Matter of Fact: The National Charter School Study III

2023, Center for Research on Education Outcomes,

Stanford University, (“2023 CREDO Study”) at 149

(June 16, 2023). 14

2. The data supporting comparative charter

school success arises from many facets of education

research. For example, data show the longer a student

12 https://nces.ed.gov/programs/digest/d23/tables/dt23_216.10.

asp

13 https://nces.ed.gov/programs/digest/d23/tables/dt23_216.20.

asp

14 https://ncss3.stanford.edu/wp-content/uploads/2023/06/CredoNCSS3-Report.pdf

attends a charter school the greater the student’s

academic growth compared with traditional publicschool peers. Specifically, students attending urban

charter schools “had an additional 29 days of growth

per year in reading and 28 additional days in math.”

Id. at 60.

Charter schools also have been particularly

successful in addressing and closing achievement

gaps for their students. Id. at 69. For example, in

reading, seven to nineteen percent of schools both

exceeded the state average achievement and saw

growth among disadvantaged students equal to or

greater than their non-disadvantaged peers in the

same school. Id. (showing the following percentage of

schools meeting both criteria for students by

subpopulation groups: 7.3% Black students; 12.6%

Hispanic students; 19.3% students in poverty; 14.1%

English Language Learners).

Another national study found elementary and

middle school students’ reading test scores improved

by three percentage points and math scores improved

by six percentage points in districts with at least ten

percent enrollment in charter schools. Douglas N.

Harris & Feng Chen, The Bigger Picture of Charter

School Results, Educ. Next (last updated April 18,

2022). 15 High school graduation rates also increased

by 2.8 percent in these districts. Id.

15 https://www.educationnext.org/bigger-picture-charter-school-

results-national-analysis-system-level-effects-test-scores-graduation-rates/

The benefits of attending a charter school follow

students to postsecondary education. Charter school

students are more likely than their non-charter school

peers to enroll and remain in college. Tim Sass,

Charter High Schools’ Effects on Long-Term

Attainment and Earnings, 35 J. Pol’y Analysis and

Mgmt. 683, 692–93 (2016). 16

The gains that result from charter school

attendance

beyond

students’

academic

achievement. Former charter school students

experience higher earnings as early as their mid-20s.

Id. at 694–95. And in multiple separate studies,

researchers concluded that students participating in

school choice programs showed reductions in criminal

activity. See Will Dobbie & Roland G Fryer Jr., The

Medium-Term Impacts of High-Achieving Charter

Schools, 123 J. Pol. Econ. 985, 1012 (2015) (finding

males who attended charter school were 4.4

percentage points less likely to be incarcerated); 17

Andrew McEachin, et al., Social returns to private

choice? Effects of charter schools on behavioral

outcomes, arrests, and civic participation, 76 Econ.

Educ. Rev., Article No. 101983, at 9–10 (2020)

(finding students who attended secondary charter

schools were less likely to be chronically absent,

suspended, be convicted of a crime as an adult); 18 see

also Benjamin Scafidi, Ph.D., & Jonathan Butcher,

The Fiscal Effects of Expanding Mississippi’s

16 https://onlinelibrary.wiley.com/doi/10.1002/pam.21913

17 https://www.journals.uchicago.edu/doi/abs/10.1086/682718

18 https://www.sciencedirect.com/science/article/abs/pii/

S0272775719303668

Education Savings Accounts, Working Paper No. 15,

EdChoice, at 21 (Dec. 2023). 19

3. These positive academic results occurred in

states where charter schools can innovate in

curriculum without being confined to state

requirements affecting traditional public schools. For

example, Idaho charter schools experienced strong

academic growth in reading compared to traditional

public schools. 2023 CREDO Study, supra, at 49.

Based on this success, Idaho has continued advancing

laws that make charter schools easier to operate. See

Idaho Sets a Strong Example by Enhancing Charter

Schools, Mtn. States Pol’y Ctr (Mar. 2, 2024). 20 Like

Idaho, Missouri also had positive academic outcomes

with

charter

schools,

experienced

overwhelmingly strong results in both reading and

math in its charter schools compared to its traditional

public schools. 2023 CREDO Study, supra, at 49–50.

4. The success of private Catholic schools suggests

that Catholic curriculum would continue advancing

the success of charter schools. A charter school system

presupposes meaningful choices, i.e., choices among

providers of educational content not available in

traditional public schools.

Catholic school participation has made a critical

difference in the success of other educational choice

programs. For starters, Catholic schools have for

19 https://www.edchoice.org/wp-content/uploads/2023/12/ESA-

Fiscal-Impact-12_19_23.pdf

20 https://www.mountainstatespolicy.org/idaho-sets-a-strong-example-by-enhancing-charter-schools

decades pursued a social-justice mission to educate

disadvantaged urban students, regardless of whether

they are Catholic. See Julie Trivitt & Patrick Wolf,

School Choice and the Branding of Catholic Schools,

6 Educ. Fin. & Pol’y 202, 207 (2011). As one study

concluded, “[t]here is little doubt that [Catholic

schools] are a pivotal element of the supply side of

voucher-fueled education markets.” Id. Indeed, that

same study (which surveyed participants in a

Washington, D.C. pilot voucher program) found that

Catholic

schools

offer

many

desirable

characteristics—including academic rigor, discipline,

and non-proselytizing religious instruction—that

“Catholic schools . . . draw large numbers of voucher

students from non-Catholic families.” Id. at 231.

Catholic schools also provide a critical education

option for all parents because they inculcate political

tolerance and civic engagement. A recent statistical

meta-analysis examining the association between

private schools and four civic outcomes (political

tolerance, political participation, civic knowledge and

skills, and voluntarism and social capital) showed

that private schools boost civic outcomes for students

over comparably situated public school students. See

M. Danish Shakeel, Patrick J. Wolf, et al., The Public

Purposes of Private Education: A Civic Outcomes

Meta-Analysis, 36 Ed. Psych. Rev. 40 at 19–23 (2024).

Critically, religious private schools were

particularly more likely to be associated with better

civic outcomes. See id. at 23. And some studies

included in the meta-analysis even showed a

“Catholic school civic advantage.” Id. at 33 (citing

James S. Coleman & Thomas Hoffer, Public and

Private High Schools: The Impact of Communities

(1987); Stephen Macedo, Diversity and Distrust: Civic

Education in a Multicultural Democracy (2000); and

Joseph Prud’homme, The Potential of Catholic

Schools: Public Virtues Through Private Voucher, 25

J. Cath. Educ. 109 (2022)).

In addition to positive civic outcomes, Catholic

school students outperform their public-school peers

in academics and higher education attainment. One

recent study found that Catholic school K-8 students

scored higher in both math and reading, across grade

levels, than public school students. Julia W. Dallavis,

Megan Kuhfeld, et al., Achievement Growth in K-8

Catholic Schools Using NWEA Data, 24 J. Cath.

Educ. 1, 13 (2021).

Other studies have shown that students who

attended Catholic high schools were more likely to

graduate, attend college and graduate from college

than students who attended public high schools.

David J. Fleming, Stephane Lavertu, et al., High

School Options and Post-Secondary Student Success:

The Catholic School Advantage, 21 J. Cath. Educ. 1, 6

(2018) (citing, e.g., Joseph G. Altonji et al., Selection

on observed and unobserved variables: Assessing the

effectiveness of Catholic schools, 113 J. Pol. Econ. 151

(2005); William N. Evans & Robert M. Schwab,

Finishing high school and starting college: Do

Catholic schools make a difference?, 110 Q. J. Econ.

941 (1995); Derek Neal, The effects of Catholic

secondary schooling on educational achievement, 15 J.

Lab. Econ. 98 (1997); Anh Ngoc Nguyen et al., The

estimated effect of Catholic schooling on educational

outcomes using propensity score matching, 58 Bull.

Econ. Rsch. 285 (2006)). In fact, students who had

attended Catholic high schools had the highest college

GPAs, total college graduation rate, and four-year

college graduation rate compared to students who

attended all other high school types. Id. at 10. The

benefits of attending Catholic schools were

particularly significant for students from “minority or

low-income families, students from urban areas, and

students with low ACT scores.” Id. at 20.

Thus, meaningful education pluralism—which

includes traditional Catholic providers—improves

student test scores, attainment, and socialization

alike. Such concrete results indicates that building on

the success of curriculum innovation in charter

schools by including Catholic providers will continue

advancing the education achievements of charter

school students.

CONCLUSION

The Court should reverse the judgment of the

Oklahoma Supreme Court.

Respectfully submitted,

Cynthia Fleming Crawford

Americans for Prosperity

Foundation

4201 Wilson Blvd.,

Suite 1000

Arlington, VA 22203

(571) 329-2227

ccrawford@afphq.org

Counsel for Americans for

Prosperity Foundation

Thomas M. Fisher

Counsel of Record

Bryan G. Cleveland

EdChoice Legal Advocates

111 Monument Circle,

Suite 2650

Indianapolis, IN 46204

(317) 681-0745

tfisher@edchoice.org

Counsel for Amici Curiae

Lawrence S. Ebner

Atlantic Legal Foundation

1701 Pennsylvania Ave

NW, Suite 200

(202) 872-0011

lawrence.ebner@atlanticlegal.com

Counsel for Atlantic Legal

Foundation

Lynn Swanson

yes. every kid. foundation.

1310 N. Courthouse Rd

Arlington, VA 22201

(954) 299-0699

lswason@yeseverykid.com

Counsel for yes. every kid.

foundation.

March 12, 2025

APPENDIX

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

City, County Local Board of Education

Elected

Yes

City And Borough School Districts; Regional

Education Attendance Areas

Elected

County Local Education Agency

Elected

Body Corporate

Elected

Yes

Quasi-municipal

corporation

Elected

Yes

Citations

AL Code 16-141.1; 16-11-3;

16-13 et seq.

AK Stat.

14.12.010

14.12.030;

14.12.070;

14.17.410;

14.33.120

AZ Rev. Stat.

15-301; 15302; 15-421;

15-424; 15992

AR Const. art

14 § 3; Ark.

Code 6-13102; 6-13-634

CA Educ.

Code 35012;

35160–

35162; Cal.

Rev. & Tax.

Code 95; California, Tchrs.

Assn. v.

Hayes, 7 Cal.

Rptr. 2d. 699

(Cal. Ct. Appl.,

3rd Dist.,

1992)

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Local Education

Agency

Elected

Yes

Cabinet-Level

Agency Within

DC Government

Elected

Body Corporate

Elected

Yes

County; Entities

created by special school law

Elected

Yes

State Board/

State Department of Education

Appointed by

Governor

Body Corporate

and Politic

Elected

Yes

Body Politic and

Corporate

Elected

Yes

Community

School Corporation

Elected

Yes

Citations

CO Const. art.

IX, 15; C.R.S.

22-32-101;

22-54-106

CT Gen. Stat.

9-203; 10-241

DE Code tit.

14:402; 1051;

1052

DC Code 38171; 38-2651

FL Const. art.

IX, 4; FL Stat.

1001.34

GA Code 202-50; 20-2-51;

20-2-370; 485-405

HI Rev. Stat.

4-1; 302A121; 302A125; 302A1110; 302A1128

ID Code 33301; 33-501;

33-802

105 IL Comp.

Stat. 5/10-1;

5-10/2; 5/1022.22c

IN Code 2026-2-4; 20-234-27; 20-46-1

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

Body Politic

Elected

Yes

Corporation for

Public Purposes

Elected

Yes

Body Politic and

Corporate

Elected

Yes

Body Corporate

Elected

Yes

Municipal or

Quasi-Municipal

Corporation

Elected

Yes

State Program

of Public Education; Public

Agency

Appointed by

Governor or

Elected

Body Politic and

Corporate

Elected

Body Corporate

Elected

Yes

Body Corporate

and Politic

Elected

Yes

Citations

IA Code

274.1;

277.23; 298.4

KS Stat. 721072; 721131; 721141

KY Stat.

160.160;

160.460

LA Rev. Stat.

17:51; 17:52;

17:1371.2;

17:1372

M.R.S. 20-A:

1(26); 1251;

1505; 2302

MD Code,

Educ. 3-105;

3-108.1; 4101; 4-109; 4131; 5-104; 71101

MA Gen. Laws

Ch. 53: 122;

Ch. 71: 16

MI Comp.

Laws 380.11a;

380.1211;

380.384

MN Stat.

123B.02;

123B.09;

471.70

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

Political Subdivision

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Town Districts

Organized as

Corporations

Elected

Yes

Body Corporate

Elected or

Appointed by

Mayor or

Chief Executive Officer of

Municipality

Yes

NJ Stat.

18A:10-1;

18A:12-11,

17; 18A:7F-39

Political Subdivision

Elected

Yes

NM Stat. 221-2; 22-5-1.1;

22-25-1; 2225-11

Citations

MS Code

37-6-5; 37-7203; 37-7-333

MO Rev. Stat.

162.211;

162.461;

162.471;

162.563;

164.013

MCA 20-6101; 20-9353; 30-3-301

Neb. Rev.

Stat. 77-3442;

79-407-409;

79-543-552

Nev. Rev.

Stat. 386.110;

386.120-260;

387.195

N.H. Rev.

Stat. 189:1-a;

194:1; 194:2;

194:5; 194:7;

198:5

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Politic and

Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Body Politic and

Corporate

Elected

Yes

Body Politic and

Corporate

Appointed by

County Board

of Education

Yes

School Corporation

Elected

Yes

Citations

NY Educ. Law

2023; 21012119; 2502

NC Gen. Stat.

115C-37;

115C-40;

115C-511

ND Cent.

Code 15.1-0901; 15.1-0701; 57-15-13

OH Rev. Code

3313.01; 17;

5705.21

OK Stat. tit.

70: 5-105; 5107A; 5-155

OR Rev.

Stat.328.26;

332.030;

332.072

24 PA Stat. 2211; 3-301; 6672

16 RI Gen.

Laws 16-2-5;

16-3-11; 167.2-1

SC Code 5917-10; 59-1920; 59-73-60

SD Codified

Laws 10-1243; 13-8-1;

13-5-15

Core Features of Public-School Districts

Type

Local Board

Selection

Tax

Power?

Incorporated

Municipality

Elected

Yes

Body Corporate

Elected

Yes

Bodies Corporate

Elected

Yes

Town; Corporation with power

of municipality

Elected

Body Corporate

Elected or

Appointed by

a Commission

Yes

Body Corporate

Elected

Yes

County Board

Organized as a

Corporation

Elected

Yes

Body Corporate

Elected

Yes

Body Corporate

Elected

Yes

Citations

TN Code 49-2201; 49-2401; 49-3315

TX Educ. Code

11.051;

11.054;

11.151;

45.002

UT Code 20A14-202; 53G4-401; 59-2902

VT Stat. tit.

16: 423; 491;

563

VA Code 22.135; 22.157.3; 22.1-71;

22.1-95

WA Rev. Code

28A. 310.030;

28A.320.0;

84.52.053

WV Code 118-6c; 11-8-6f;

18-5-1; 18-51b; 18-5-5

WI Stat.

120.42;

120.44

WY Stat. 21-3101; 21-3108; 21-13102

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.