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, 24-396

IN THE

Supreme Court of the United States

__________

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL

SCHOOL, ET AL.,

Petitioners,

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

Respondent.

OKLAHOMA STATEWIDE CHARTER SCHOOL

BOARD, ET AL.,

Petitioners,

GENTNER DRUMMOND, ATTORNEY GENERAL

OF OKLAHOMA, EX REL. OKLAHOMA,

__________

Respondent.

On Writ of Certiorari to

the Supreme Court of Oklahoma

__________

BRIEF OF AMICUS CURIAE

HON. PETER DEUTSCH SUPPORTING

PETITIONERS

_________________________________

GORDON D. TODD*

NICHOLAS R. REAVES

MACKENZI J.S. EHRETT

YALE FREE EXERCISE CLINIC

JOHN LEE

1919 Penn. Ave. N.W.

C. LEVI BROWN†

Suite 400

SIDLEY AUSTIN LLP

Washington, DC 20006

1501 K Street, N.W.

nicholas.reaves@yale.edu

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

Attorneys for Amicus Curiae

March 12, 2025

* Counsel of Record

† Admitted only in Arkansas and practicing pending

admission to the D.C. Bar and under the supervision

of the D.C. Bar.

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS CURIAE ............

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

I. UNDER THIS COURT’S PRECEDENTS,

CHARTER SCHOOLS ARE NOT STATE

ACTORS ........................................................

A. Rendell-Baker’s public-function test

governs the state action inquiry here .....

B. Secondary education is not traditionally

the exclusive prerogative of the State .....

C. Even “free public education” was never

traditionally the exclusive prerogative of

the State ...................................................

1. Private and religious schools have

long assisted the government in

providing a “free public” education ....

II. DEEMING CHARTER SCHOOLS STATE

ACTORS UNDERMINES INNOVATION

AND

DENIES

EDUCATIONAL

OPPORTUNITIES TO DISADVANTAGED

CHILDREN ...................................................

A. An adverse decision will expose singlesex charter schools to constitutional

liability, undermining STEM education

for girls ...................................................

B. An adverse decision will hobble strictdiscipline charter schools that serve

underprivileged and at-risk youth ........

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40 (1999) ....................................................

Caviness v. Horizon Cmty. Learning Center,

Inc., 590 F.3d 806, 815 (9th Cir. 2010) .....

Espinoza v. Montana Dep’t of Revenue, 591

U.S. 464 (2020) .................................. 14, 16, 17

Flagg Bros. Inc. v. Brooks, 436 U.S. 150

(1978) .........................................................

G.C. v. Owensboro Pub. Schs., 711 F.3d 623

(6th Cir. 2013) ...........................................

Goss v. Lopez, 419 U.S. 565 (1975) ..............

Jackson v. Metropolitan Edison, 419 U.S.

345 (1974) ..................................................

Logiodice v. Trustees of Maine Cent.

Inst.,

Inc.,

296

F.3d

22,

(1st Cir. 2002) ................................. 5, 6, 15, 26

Lugar v. Edmonson Oil Co., 457 U.S. 922...

Mahoney Area Sch. Dist. v. B.L. ex rel Levy,

594 U.S. 180 (2021) ...................................

Manhattan Cmty. Access Co. v. Halleck, 587

U.S. 802 ..................................................... 4, 27

Mitchell v. Helms, 530 U.S. 793 (2000) .......

iii

Nat’l Coll. Athletic Ass’n v. Tarkanian, 488

U.S. 179 (1988) ..........................................

New Jersey v. T.L.O., 469 U.S. 325 (1985) ..

Patrick v. Success Acad. Charter Sch., Inc.,

354 F. Supp. 3d 185 (E.D.N.Y. 2018) .......

Peltier v. Charter Day Sch., Inc., 37 F.4th

104 (4th Cir. 2022) .................................... 15, 16

Quick Bear v. Leupp, 210 U.S. 50 (1908) ....

Rendell-Baker v. Kohn, 457 U.S. 830

(1982) ....................................................

2, 4, 5

Robert S. v. Stetson Sch., Inc., 256 F.3d 159,

166 (3d Cir. 2001) .................................

Tinker v. Des Moines Ind. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ...................................

United States v. Virginia, 518 U.S. 515

(1996) .........................................................

STATUTES AND REGULATIONS

42 U.S.C. § 1983 ...........................................

Okla. Stat. Ann. tit. 70, § 1-106 (West

2024) ..........................................................

7 Stat. 79 (Aug. 13, 1803).............................

30 Stat. 62.....................................................

34 C.F.R. § 106.34(c)(1) ................................

OTHER AUTHORITIES

Am. Ass’n of Univ. Women, Why So Few?

(Feb. 2010), https://bit.ly/3T14pBR ..........

Melinda D. Anderson, The Resurgence of

Single-Sex Education, The Atlantic (Dec.

22, 2015), https://bit.ly/3V6n3d4 ..............

Gerald J. Brunetti, Resilience Under Fire:

Perspectives on the Work of Experienced,

Inner City High School Teachers in the

United States, 22 Teaching & Teacher

Edu. 812 (2006) .........................................

Dick M. Carpenter II & Krista Kafer, A

History of Private School Choice, 87

Peabody J. Educ. 336 (2012) ...... 7, 9, 16, 17, 18

David S. Cohen & Nancy Levit, Still

Unconstitutional:

Our

Nation’s

Experiment With State Sponsored Sex

Segregation in Education, 44 Seton Hall

L. Rev. 339 (2014) .....................................

Lawrence Cremin, American Education:

The National Experience, 1783-1876

(1980) ......................................................... 15, 19

Lawrence Cremin, American Education:

The Colonial Experience, 1607–1783

(1970) ............................. 6, 7, 8, 9, 10, 11, 15, 19

Frederick Eby, Education in Texas: Source

Materials, 1824 U. Tex. Bull. (1918) ........

Richard J. Gabel, Public Funds for Church

and Private Schools (1937) ........... 13, 14, 15, 16

Philip M. Gleason, What’s the Secret

Ingredient? Searching for Policies and

Practices that Make Charter Schools

Successful, Mathematica Policy Research

Working Paper No. 47 (July 2016) ........... 23, 24

David Hackett Fisher, Albion’s Seed: Four

British Folkways in America (1989) .........

Amy Robertson Hayes et al., The Efficacy of

Single-Sex

Education:

Testing

for

Selection and Peer Quality Effects, in Sex

Roles (Nov. 2011), https://bit.ly/3fJCVCl .

Teresa A. Hughes, The Advantages of

Single-Sex Education, 23 Nat’l Forum of

Educ. Admin. & Supervision J. 2 (2006),

https://bit.ly/2swFNGX .............................

Int’l Coal. Of Girls Schs., Why Girls’

Schools, https://bit.ly/3M6SbW3 (last

visted Mar. 10, 2025) ................................

William Jeynes, American Educational

History: School, Society, and the Common

Good (2007) .................... 8, 9, 11, 13, 14, 15, 19

Lloyd

Jorgenson,

The

State

and the Non-Public School, 1825-1925

(1987) ...................................... 13, 14, 17, 19, 20

Carl F. Kaestle, Pillars of the Republic:

Common Schools and American Society,

1780-1860 (1983) ................................ 14, 15, 19

Richard D. Komer, School Choice and State

Constitutions’ Religion Clauses, 3 J. Sch.

Choice 331 (2009) ......................................

The Leadership Conf. on Civ. & Hum. Rts.,

Single-Sex

Proposed

Regulations

Comments

(Apr.

23,

2004),

https://bit.ly/3RFRjIS ................................

Anthony Martinez & Cheridan Christnacht,

Women Are Nearly Half of U.S. Workforce

but Only 27% of STEM Workers, U.S.

Census Bureau (Jan. 26, 2021),

https://bit.ly/3MaJfPj ................................

Mass. Act for Regulating the Grammar

School in Ipswich, 1765, ch. 5,

https://perma.cc/C799-5XSP .....................

Michael W. McConnell et al., Religion and

the Constitution (4th ed. 2016) ................. 14, 16

Laura McKenna, Why Don’t Suburbanites

Want Charter Schools?, The Atlantic (Oct.

1, 2015), https://bit.ly/3fMlOQj .................

Rebecca Mead, Success Academy’s Radical

Educational Experiment, The New Yorker

(Dec. 4, 2017), https://bit.ly/3CAeXCr ...... 24, 25

Robert Middlekauff, Before the Public

School: Education in Colonial America, 62

Current Hist. 279 (1972)........................... 7, 8

vii

Robert Middlekauff, Ancients and Axioms:

Secondary

Education

Eighteenth

Century

New

England

(1971) .......................................... 10, 11, 12, 13

Eva Moskowitz, Turning Schools Into Fight

Clubs,

WSJ

(Apr.

2015)

https://on.wsj.com/3CAfPH9H9 ................

New York Act to Encourage a Publick School

the

City

New

York,

1732

no.

19,

(Oct.

14,

732)

ttps://www.colonialamerica.amdigital.co.

uk/Documents/Details/CO_5_1155_069 ...

Edward J. Power, The Advent of Education

in Colonial America, in A Legacy of

Learning: A History of Western Education

(1991) ................................................ 7, 8, 10, 11

Donald K. Sharpes, Advanced Educational

Foundations for Teachers: The History,

Philosophy, and Culture of Schooling

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

Michael R. Smith & Joseph E. Bryson,

Church-State Relations: The Legality of

Using Public Funds for Religious Schools

(1972) .........................................................

Kate Taylor, At Success Academy, Charter

Schools, High Scores and Polarizing

Tactics, NY Times (Apr. 6, 2015),

https://nyti.ms/3M9XCnd..........................

Timothy Walch, Parish School (1996) .........

viii

Elizabeth Weil, Teaching Boys and Girls

Separately, N.Y. Times Mag. (Mar. 2,

2008), https://nyti.ms/3Mgfgpd .................

George

Woytanowitz,

Parents,

Preachers, and Pedagogues: Education in

Colonial America, 47 Contemp. Educ. 125

(1976) .........................................................

INTEREST OF THE AMICUS CURIAE 1

Peter Deutsch is a former congressman, lawyer, and

founder of the Ben Gamla charter school in Hollywood,

Florida. 2 Ben Gamla opened in 2007 as the first

Hebrew-English charter school in the United States.

The school initially enrolled 400 students, and later

expanded to five campuses serving 2,000 students

from grades K-12.

Mr. Deutsch remains active in the development of

Hebrew-English charter schools across the United

States. He is committed to providing an educational

alternative to parents interested in teaching their

children Hebrew language and culture. Mr. Deutsch

became aware of this case while evaluating the

feasibility of founding a Jewish charter school in

Oklahoma.

This case provides the Court with an opportunity to

recognize the rich history of educational partnerships

between private and public entities in the United

States. This history shows that charter schools,

although publicly funded, are not state actors.

Accordingly, Amicus urges the Court to hold that

St. Isidore is not a state actor and instead is protected

by the Free Exercise Clause.

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amici and their counsel,

made any monetary contribution toward the preparation or

submission of this brief. This brief is prepared by a clinic operated

by Yale Law School but does not purport to present the School’s

institutional views, if any.

2 Mr. Peter Deutsch submits this brief in his personal capacity

and not as a representative of Ben Gamla.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The decision below misreads both the law and the

facts. Loading the dice, the Oklahoma Supreme Court

defined the work of charter schools as the “provi[sion]

[of] free public education.” Pet. App. 19a (emphasis

added). The court then held that this task was

“traditionally the exclusive prerogative of the State”

and thus concluded that St. Isidore was a state actor

under this Court’s precedent. See Pet. App. 19a, 36a.

That’s wrong twice over. First, the court asked the

public function question at too narrow a level of

generality. Under Rendell-Baker v. Kohn, 457 U.S. 830

(1982), the correct question is whether the provision of

education is traditionally the exclusive prerogative of

the government—without the court’s attendant train

of adjectives. So framed, the answer is clear: since the

Founding, education has been the province of private

actors no less than public ones.

Second, the court erred even accepting its narrowing

construction of the public-function test. Since the

seventeenth century, state laws have recognized a

governmental obligation to educate children, often for

free. But, tellingly, throughout the colonial and

antebellum periods towns, colonies, and states

discharged that obligation in partnership with private,

independent schools. So, even providing “free and

public” education was not the exclusive prerogative of

the government and cannot justify holding that

St. Isidore is a state actor here.

The Oklahoma Supreme Court’s errors will have

serious real-world costs. For decades, charter schools

have spurred educational innovation and offered

parents and their children unique educational

opportunities previously available only to those able to

afford private school tuition. And, looking forward,

charter schools remain engines of innovation and

opportunity—opening STEM education to more girls

and providing students in low-income neighborhoods a

safe, structured learning environment. If charter

schools are deemed state actors, these programs will

be at risk.

ARGUMENT

I. UNDER THIS COURT’S PRECEDENTS,

CHARTER SCHOOLS ARE NOT STATE

ACTORS.

A. Rendell-Baker’s public-function test

governs the state action inquiry here.

Ordinarily, a plaintiff may succeed on a § 1983 claim

only if a defendant acts “under color of” state law. 42

U.S.C. § 1983. “Merely private conduct,” no matter

how “wrongful,” cannot support a § 1983 suit. Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).

The state-action requirement promotes federalism,

because it prevents federal courts from “impos[ing] . . .

responsibility on a State for conduct it could not

control.” Nat’l Coll. Athletic Ass’n v. Tarkanian, 488

U.S. 179, 191 (1988).

But sometimes, ostensibly private parties actually

function as state actors. The key question in such cases

is whether the “actions of [the private actor] may be

fairly treated as that of the State itself.” Jackson v.

Metropolitan Edison, 419 U.S. 345, 351 (1974). This

Court has generally based the state-action

determination on one of three inquiries: (1) “the public

function test,” (2) “the “‘state compulsion’ test,” and (3)

“the ‘nexus’ test.” Lugar v. Edmonson Oil Co., Inc, 457

U.S. 922, 939 (collecting cases). These inquiries are

exacting, and “a private party can qualify as a state

actor in a few limited circumstances.” Manhattan

Cmty. Access Co. v. Halleck, 587 U.S. 802, 809.

As this Court’s precedent shows, the “public

function” test is most relevant here. The leading case

in the educational context is Rendell-Baker, which

considered whether a private school “whose income is

derived primarily from public sources and which is

regulated by public authorities” was a state actor for

purposes of § 1983. 457 U.S. at 831. There, the school

at issue received between 90% and 99% of its funding

from the state; was subject to a detailed code of

regulations governing records, student-teacher ratios,

and personnel matters; and almost exclusively

enrolled students recommended to it by the state. Id.

at 831–33. Despite such significant government

support, this Court readily rejected application of both

the coercion and nexus tests. Id. at 841–44.

Instead, the Court’s state-action analysis focused on

the public-function test. Under this test, the central

inquiry is “whether the function performed has been

‘traditionally the exclusive prerogative of the State.’”

Id. at 842. The “feature of exclusivity” is this test’s

hallmark. Flagg Bros. Inc. v. Brooks, 436 U.S. 150, 160

(1978). Accordingly, the inquiry is strict: “‘very few’

functions” are the exclusive preserve of the

government. Halleck, 587 U.S. at 802. In RendellBaker, the Court confirmed that educating children

who cannot be served by a traditional public school

does not make the grade. Rendell-Baker, 457 U.S. at

842. History shows that the same is true here.

B. Secondary

education

not

traditionally the exclusive prerogative

of the State.

As this Court and the majority of lower courts have

correctly concluded, the question to ask is whether

providing primary and secondary education to

students is traditionally the exclusive prerogative of

the State. History demonstrates that it is not.

In Rendell-Baker, this Court looked at whether the

“education of maladjusted high school students” was

traditionally the exclusive prerogative of the State

when applying the public-function test. 457 U.S. at

842. Importantly, the Court did not limit this analysis

to only “publicly funded” or “free” education of

maladjusted high school students. The question of

public funding, it concluded, was instead a “legislative

policy choice” which could not make its “services the

exclusive province of the state.” Id.

When it comes to secondary education, most circuits

have applied the public-function test in the same way.

In Caviness v. Horizon Cmty. Learning Center, Inc.,

the Ninth Circuit applied the “public function” test to

a charter school. It evaluated the public function of a

charter school at a general level: “provid[ing] students

with educational services,” rejecting the narrower

category of “public educational services.” 590 F.3d 806,

815 (9th Cir. 2010). As that court similarly explained,

“[p]ublic education” simply refers to a “legislative

policy choice”––a difference in funding, not in function.

Id. (emphasis added). And in Logiodice v. Trustees of

Maine Cent. Inst., the First Circuit too rejected a

narrow inquiry into whether “publicly funded

education of last resort” was traditionally an exclusive

government function. 296 F.3d 22, 27 (1st Cir. 2002).

The court explained that this narrowing of the inquiry

was little more than “tailoring by adjectives.” Id. The

Third Circuit in Robert S. v. Stetson Sch., Inc. took a

similar line. 256 F.3d 159, 166 (3d Cir. 2001) (Alito, J.)

(rejecting attempt to distinguish private actors

performing similar services on the basis of public

funding).

The Oklahoma Supreme Court, however, eschewed

this line of precedent in favor of a jurisprudential

gerrymander: although education can certainly be

private, “free public education,” it concluded, “is

exclusively a public function.” Pet. App. 21a. State law,

the court reasoned, created a “duty to provide free,

universal schools.” Id. at 22a. And Oklahoma created

charter schools to carry out that “traditionally

exclusive government function.” Id. at 21a.

Unsurprisingly, this legal error led to an anomalous

result. Charter schools were deemed state actors, and

St. Isidore’s contract became constitutionally infirm.

The Oklahoma Supreme Court erred by creating an

artificial distinction based on St. Isidore’s source of

funding. St. Isidore is plainly not engaged in conduct

that was traditionally the exclusive prerogative of the

State. To the contrary, provision of secondary

education in this country has never been a traditional

and exclusive public function. From the colonial period

onward, private parties took the lead, producing an

astonishingly

diverse

variety

schooling

arrangements.

As one prominent historian has put it, “[n]othing is

more striking about these institutions than the variety

in the modes of sponsorship and support” for colonial

schools. Lawrence Cremin, American Education: The

183

(1970)

Colonial

Experience,

1607–1783

[hereinafter Cremin, Colonial Experience]. As a result,

“[p]arents who decided in favor of formal schooling had

a variety of educational options,” ranging from private

tutors to village schools and private academies. George

M. Woytanowitz, Parents, Preachers, and Pedagogues:

Education in Colonial America, 47 Contemp. Educ.

125, 127 (1976). Although some colonial governments

“participated in organizing and financing schools,” see

Robert Middlekauff, Before the Public School:

Education in Colonial America, 62 Current Hist. 279

(1972) [hereinafter Middlekauff, Public School], most

of them took a backseat to “independent schools

financed by local communities, churches, and

charities.” Dick M. Carpenter II & Krista Kafer, A

History of Private School Choice, 87 Peabody J. Educ.

336, 337 (2012). Churches played an especially

prominent role. See id. (noting that churches “were the

administrative centers for the vast majority of

educational undertakings” during the colonial era). As

a result, by the end of the colonial period there already

existed the “peculiar blend of public and private,

classical and vocational, religious and secular” that

still marks American education today. Middlekauff,

Public School, at 307.

Indeed, the sheer variety of educational

arrangements among the many colonies shows that

secondary education was never a task exclusively

performed by the government. Start with the southern

colonies. There, the colonists “did not . . . invest the

state with a responsibility for general school support”

but viewed education as “an entirely private matter.”

Edward J. Power, The Advent of Education in Colonial

America, in A Legacy of Learning: A History of Western

Education 239 (1991). Across the South, “most

families . . . either taught their children themselves or

hired tutors to do the teaching[.]” William Jeynes,

American Educational History: School, Society, and

the Common Good 11 (2007). And the schools that did

exist were private academies, often founded precisely

because the colonial authorities were slow to establish

schools and reluctant to fund them. See Cremin,

Colonial Experience, at 176. That was how Virginia’s

first schools, Syms and Eaton, came to be: created by

private bequest, incorporated as private organizations,

and headed by private trustees. Id. at 530. While both

schools were free to poor students (and Syms was free

to all), see id., it was typically left to churches to found

schools for the teaching of “poor, neglected, and

orphaned children.” Power, supra, at 240.

Heading north, secondary education in New York,

New Jersey, and Pennsylvania during the colonial era

was also a predominantly private and ecclesiastical

function. In Pennsylvania, churches were the prime

movers on the American educational scene, with

Quakers, Anglicans, Lutherans and Moravians all

operating schools for their own children and for the

poor throughout the eighteenth century. Middlekauff,

Public School, at 280. Similarly, in New York and New

Jersey, churches sponsored most education and “did

their best to enable poor children to go to school for

free.” Jeynes, supra, at 10. By the eighteenth century,

“it was the private entrepreneurial schoolmaster who

carried an increasing share of the formal education[,]”

whether as a tutor or a schoolmaster. Cremin, Colonial

Experience, at 537. While there are some exceptions,

see, e.g., New York Act to Encourage a Publick School

in the City of New York, 1732 no. 19, (Oct. 14, 1732)

https://www.colonialamerica.amdigital.co.uk/Docume

nts/Details/CO_5_1155_069 (establishing the first

public grammar school in New York City), as a rule

government came late to a market already clogged

with private actors. It remained that way through the

end of the Revolution: until 1783, there were a mere

27 parochial and town-sponsored instructors in New

York City, compared to 206 private schoolmasters. See

Cremin, Colonial Experience at 538. Private parties

supplied almost eight times as many schoolmasters as

did the state. Philadelphia’s numbers are only slightly

less stark, with 76 town and parish instructors vying

with 207 private ones. Id.

Postcolonial history likewise shows that secondary

education was never the exclusive province of the

state. “[C]hurches . . . were the administrative centers

for the vast majority of educational undertakings” into

the early 1900s. Carpenter II & Kafer, supra, at 337.

“The Revolutionary War set in motion a vast

expansion of these private and charity schools on a

wider scale than during the colonial period, and states

and communities increasingly adopted compulsory

education laws, which were fulfilled by attendance at

the private and charity schools.” Id.

When government-run public schools did arrive on

the scene, they remained the exception, not the rule.

The first state-run public schools “would not be

established until the middle of the nineteenth century,

and then only in scattered communities.” Donald K.

Sharpes, Advanced Educational Foundations for

Teachers: The History, Philosophy, and Culture of

Schooling 253 (2001). And even still, “from their

inception as a part of a national movement, these

schools sparked controversy and political division.”

Jeynes, supra, at 145. Until state-run public schools

received widespread acceptance in the late 1800s, it

was private and parochial schools that were

responsible for the education of American

schoolchildren. Given such overwhelming historical

evidence, it is no surprise that even the Oklahoma

Supreme Court conceded that “[t]he provision of

education may not be a traditionally exclusive public

function.” Pet. App. at 21a.

C. Even “free public education” was never

traditionally the exclusive prerogative

of the State.

The historical record demonstrates that, even under

the erroneously cramped application of the publicfunction test employed by the Oklahoma Supreme

Court, public funding of free secondary education was

not limited exclusively to government-run schools.

Privately operated schools have, in partnership with

the government, offered “free, public education” since

the colonial era. Thus, even “free public education”

should not be considered a traditionally exclusive

prerogative of the State.

Private and religious schools have

long assisted the government in

providing a “free public” education.

Among the American colonies, those in New England

uniquely prioritized education. Starting in the 1640s,

Massachusetts experimented with a range of private

and public schools: town-funded free schools, grammar

schools controlled and funded by trustees, and a

system of private tutors. Cremin, Colonial Experience,

at 180–82. Some of the oldest public schools in

Massachusetts, like the Boston Latin School,

originated as voluntary schooling arrangements

funded at town expense. Power, supra, at 237. And,

unlike schools in many southern colonies, schools in

New England were often free: “[b]y about 1730

[fire]wood, paper, and pens represented the sum of

parental contributions in all but a few towns.” Robert

Middlekauff, Ancients and Axioms: Secondary

Education in Eighteenth Century New England 25–26

(1971) [hereinafter

Axioms].

Middlekauff,

Ancients

and

What is more, New England’s colonies were the first

to mandate the provision of secondary education. In

1647, the Massachusetts General Court passed the

tellingly-named “Old Deluder Satan Act,” which

required towns of fifty or more families to appoint a

writing school master and towns of one hundred or

more to establish a grammar school that provided

instruction in Latin and Greek. David Hackett Fisher,

Albion’s Seed, Four British Folkways In America 13233 (1989). Almost immediately, Puritan communities

labeled the schools established in response to this

statute “public schools.” Id. at 133. Towns that failed

to comply with the law were punished with steep fines,

which the legislature periodically doubled. Similar

laws were passed in New Hampshire and Connecticut

by 1700. See Jeynes, supra, at 14. While compliance

with these laws varied, “it is clear that, before 1700,

many New England towns tried to maintain schools[.]”

Power, supra, at 238.

Indeed, the need to fund a bigger school often

justified colonists’ petitions “to form new towns during

this period[.]” Cremin, Colonial Experience, at 525. In

New England, we thus find the closest analogy to

modern American schooling: towns were obliged to

create schools, and often operated those schools at no

charge. In other words, as in Oklahoma, town

governments in New England had a legal obligation to

make education available to all children, for free or at

an affordable rate.

To carry out this government mandate, however,

independent and privately funded schools often led the

way. Take the Hopkins School in Hadley,

Massachusetts. Less than two decades after the “Old

Deluder Satan Act,” the Hopkins School was created

by private bequest. Middlekauff, Ancients and Axioms,

17. Five years later, a Board of Trustees was appointed

to manage the school and its funds, with the executor

of the estate appointing the majority of the Trustees.

Id. at 18. The town of Hadley even made attendance at

the school mandatory for all children, enforced by a

fine. Id. Then, in 1687, the town seized the endowment

from the trustees to exert greater government control.

Id. at 19. The trustees sued to get it back. They won,

and soon after asserted their sole authority to appoint

the schoolmaster. Id. Hadley’s government reluctantly

acquiesced. Funded primarily from its endowment and

occasional town contributions, id. at 26, the Hopkins

school remained privately controlled throughout the

eighteenth century. Id. at 19.

The Hopkins School was not unique. Similar stories

could be told about the independent school in Ipswich

and schools in other towns across Massachusetts. See,

e.g., Mass. Act for Regulating the Grammar School in

Ipswich, 1765, ch. 5, https://perma.cc/C799-5XSP;

Middlekauff, Ancients and Axioms, at 16–17. Thus,

across colonial Massachusetts, history shows that

private and independent schools frequently carried out

a governmental obligation to provide secondary

education—often for free—to the children of their

town. And evidence suggests they kept their private

character in the process.

Massachusetts was no outlier. To its south, the

Connecticut Colony enacted a similar law requiring

the four largest towns (New Haven, New London,

Hartford, and Fairfield) to create grammar schools.

Middlekauff, Ancients and Axioms, at 39. A private

bequest funded New Haven’s grammar school. Id. at

40–41. And when joint control over the school between

the funder’s estate and the city proved unworkable,

the executor sequestered the trust until the town

yielded full control of the school to an “independent

and self-perpetuating Board of Trustees[.]” Id. at 40.

This arrangement—fulfilling New Haven’s mandatory

schooling obligation—lasted for the remainder of the

colonial period. And even after the colonial period,

secondary education did not become solely a

government function. Instead, Connecticut passed a

law that “took control of the schools away from the

towns and put it into the hands of churches[,]” while

still mandating that each town have a school. Jeynes,

supra, at 15. Connecticut is thus a good example of

how private and public actors jointly fulfilled a stateimposed legal obligation to provide secondary

education.

In colonial America, then, even free and public

education was not traditionally the exclusive

prerogative of the government. Like Oklahoma today,

towns in Massachusetts and Connecticut were under a

legal obligation to provide secondary education.

Almost from the moment these laws passed, towns

permitted independent boards of trustees to fund and

operate independent schools to fulfill this statutory

obligation. And those schools remained open to all the

children, typically at little or no cost. Towns

occasionally made contributions to these schools or

had a representative on their board, but control often

remained in private hands.

This trend continued after American independence.

Government financial support for private and

parochial schools, “so common during the colonial

period, continued well into the national period.” Lloyd

P. Jorgenson, The State and the Non-Public School,

1825-1925 4 (1987). “Far from prohibiting such

support, the early state constitutions and statutes

actively encouraged this policy.” Id. In fact, this aid

“actually increased until about 1820 and persisted in

diminishing but still-significant amounts until well

after the Civil War.” Id.; see also Richard J. Gabel,

Public Funds for Church and Private Schools 147-262

(1937). “The same blending of state and

denominational resources was present in the founding

and support of the early colleges.” Jorgenson, supra, at

4. While “the interconnected nature of the private and

public sector” in the education of children “might be

difficult for contemporary Americans to comprehend,”

throughout the late-eighteenth and nineteenth

centuries “there was not such a rigid distinction

between the two sectors.” Jeynes, supra, at 49. The

reason for this joint effort was that “Americans

believed that the presence of education was so

important that it was imperative that the private and

public sectors support one another for the greater good

of the country.” Id. Accordingly, “churches often

intervened to support struggling state universities,

and state and city funds were frequently used to help

private schools.” Id. Through this collaboration, the

state discharged its obligation to educate the public.

Indeed, as governments across the country looked to

educate their burgeoning populations, public funding

of private schools—including religious schools—was

common. Local governments provided grants to

private schools for the education of the poor, and early

federal aid (in the form of land grants) was specifically

directed to religious schools. See Michael W.

McConnell et al., Religion and the Constitution 318-19

(4th ed. 2016). As this Court too has noted, “[e]ven

States with bans on government-supported clergy,

such as New Jersey, Pennsylvania, and Georgia,

provided various forms of aid to religious schools.”

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

481 (2020); see also Carl F. Kaestle, Pillars of the

Republic: Common Schools and American Society,

1780-1860 166–67 (1983); Gabel, supra, at 215–18,

241–45, 372–74. In New York, the state helped finance

church-run charity schools “as early as 1795.” Jeynes,

supra, at 51. Shortly thereafter, “[t]he first Roman

Catholic school in New York was established in

connection with St. Peter’s Church in 1801 and the

second in connection with St. Patrick’s in 1815; both

schools received a share of the city’s state school

subsidy[.]” Lawrence Cremin, American Education:

The National Experience, 1783–1876 166 (1980)

[hereinafter Cremin, National Experience]. The

Catholic schools in New York City continued to receive

funding until 1825, along with schools run by

Methodists, Episcopalians, and other denominations.

Kaestle, supra, at 166–67.

New York wasn’t alone: “Public funds were also

granted to Catholic schools in Lowell, Massachusetts,

in the 1830s and 1840s, in Milwaukee, Wisconsin, in

the 1840s, and in Hartford and Middletown,

Connecticut, in the 1860s.” Id. at 166. New Jersey

continued

apportioning

“public

funds

denominational schools . . . until 1866.” Id. at 167.

Indeed, in Massachusetts, the legislature “regularly

chartered and provided initial funding to private

schools, usually at the secondary level, which were

invariably religious.” Richard D. Komer, School Choice

and State Constitutions’ Religion Clauses, 3 J. Sch.

Choice 331, 338 (2009).

These examples barely scratch the surface—more

evidence abounds. Throughout the Midwest in the

1830s and 1840s, Catholic schools “received public aid

from municipal and state governments.” Timothy

Walch, Parish School 49–50 (1996). Maine too

provided public funds to private schools throughout

the 1800s to facilitate a free secondary education.

Logiodice, 296 F.3d at 27. North Carolina also

provided some public funding to private schools.

Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 144

(Quattlebaum, J., dissenting in part and concurring in

part).

Nor was this public funding of private education

limited to state and local governments. Congress

financially supported religious schools in the District

of Columbia until 1848. Espinoza, 591 U.S. at 481. And

it repeatedly appropriated public funds to operate

religious schools for American Indians throughout the

eighteenth and nineteenth centuries. See Quick Bear

v. Leupp, 210 U.S. 50, 78 (1908); Gabel, supra, at 521–

23. Even President Thomas Jefferson convinced

Congress to ratify an 1803 treaty with the Kaskaskia

Indians that provided annual funds for the Tribe’s

Catholic priest to “instruct as many of their children

as possible, in the rudiments of literature” as well as

for the “erection of a church.” 7 Stat. 79 (Aug. 13, 1803).

Indeed, Congress continued to provide aid to religious

schools serving American Indians until 1897, at which

point Congress was annually appropriating $500,000

for this purpose. 30 Stat. 62, 79. And, at the same time,

Congress spent large sums on the education of

emancipated freedmen by supporting religious schools

in the South through the Freedmen’s Bureau.

McConnell, supra, at 323.

The

prevalence

Blaine

Amendments

provides

further

evidence that the provision of “free

public education” was never an

exclusive state prerogative.

Despite evidence of some continued public funding of

private religious schools following the Civil War, the

primacy of independent and religious schools began to

wane in the latter half of the nineteenth century.

Carpenter II & Kafer, supra, at 336. One likely driver

of this change was increasing anti-Catholic animus

and corresponding support for a “Blaine Amendment”

in the 1870s. Id. at 338. Initially proposed by

Representative James Blaine of Maine, this proposal

(which nearly passed in Congress) would have

amended the federal Constitution to prohibit state aid

to “sectarian” schools. See Mitchell v. Helms, 530 U.S.

793, 828 (2000) (plurality opinion). “[I]t was an open

secret that ‘sectarian’ was code for ‘Catholic.’” Id. As

this Court has recognized, “[t]he Blaine Amendment

was ‘born of bigotry’ and ‘arose at a time of pervasive

hostility to the Catholic Church and to Catholics in

general’; many of its state counterparts have a

similarly ‘shameful pedigree.’” Espinoza, 591 U.S. at

482.

Tellingly, Blaine and his contemporaries (many of

them drafters or ratifiers of the Fourteenth

Amendment) argued that their constitutional

amendment was necessary precisely because the

Fourteenth

Amendment

had

not

prohibited

government funding of religious schools. Jorgenson,

supra at 140–41. And, while ultimately unsuccessful,

Blaine’s proposal was defeated on states’-rights

grounds, instead of on any suggestion that the

Fourteenth Amendment rendered his proposal

redundant. Id. Indeed, no member of Congress

expressed the belief that the Establishment Clause

and the Fourteenth Amendment already prohibited

public aid to church schools.

Following the defeat of Blaine’s resolution, the

Republicans added a similar proposal to their 1876

platform, and on six separate occasions similar

amendments were proposed by Senator Henry William

Blair through 1890. Id. at 141–44. In short, these

proposals provide further evidence that, at the time,

Congress did not consider providing public funding to

religious schools unconstitutional.

A similar phenomenon played out in the states. In

the late nineteenth century, numerous state

legislatures considered state-level Blaine Amendment

analogues. Unlike the original Blaine Amendment,

however, thirty-seven of these state constitutional

amendments were adopted (and likely contributed to

the shift towards government-run public schools that

continued into the twentieth century). Carpenter II &

Kafer, supra, at 338. Here too, the adoption of these

“baby Blaines” showed that states did not consider

public funding of private religious schools already

verboten.

Designation as a “public” school does

not mean the school is necessarily a

government-run state actor.

Oklahoma attempts, by ipse dixit, to classify all “free

schools” as state actors under state law. See Okla. Stat.

Ann. tit. 70, § 1-106 (West 2024). But this Court is the

final word on the constitutional understanding of who

is a state-actor—regardless of Oklahoma law. As a

historical matter, designating a school as a free

“public” school did not mean that the school was

necessarily government-run. Rather, privately run

and cooperative schools (operated through a

partnership between the state and a private party)

were consistently called “public” schools because they

received public funds. Thus, designating a school as “a

free public school” is not dispositive as to whether the

school is performing a function that is traditionally

and exclusively the prerogative of the State.

Private schools providing a nominally “free public”

education were established in several states during

the nineteenth century. One early example is the New

York Free School Society, founded in 1805 and later

renamed the Public School Society in 1825. Jeynes,

supra, at 49; Kaestle, supra, at 52. Despite being free,

open to all children, and called a public school, “the

Society was until 1853 run by a self-perpetuating

board of trustees and was supported by both public

grants and private benevolence[.]” Id. Similarly, in

Lowell, Massachusetts during the 1840s, the local

government arranged for Roman Catholic parochial

schools, “which Catholic children only attended” and

which were “taught by [Irish-]Catholic teachers.”

Michael R. Smith & Joseph E. Bryson, Church-State

Relations: The Legality of Using Public Funds for

Religious Schools 10 (1972); Cremin, National

Experience, at 172. These schools were fully publicly

funded and “actually incorporated into the public

school system and reported as public schools” even

though they remained exclusively operated by the

Catholic Church and Catholics had the right to “use

the buildings for religious exercises.” Smith & Bryson,

supra, at 10.

Similarly, in 1856, the Texas legislature passed a

law designating “any and all schools to which parents

might choose to send their children as ‘free public

schools,’ and therefore entitled to receive their pro rata

share of the state school fund[.]” Jorgenson, supra, at

6. This law remained in effect “until after the Civil

War.” Id. The Texas State Treasurer, whom the law

designated as the ex officio Superintendent of Schools,

affirmed that “[b]y a compliance with the law, all

schools are declared ‘free public Schools.’ This, of

course, would include Colleges, Universities,

Academies and Institutions of the highest grade . . . as

well as the County Schools.” Frederick Eby, Education

in Texas: Source Materials, 1824 U. Tex. Bull. 306–07

(1918).

Numerous other private schools operating in the

postcolonial period were likewise designated as

“public” schools, including: the “William Penn Charter

School” (described in its 1701 charter as a “public

school” even though it was founded and operated by

the Quakers); a Congregationalist secondary school

“styled the Hartford (Connecticut) Public High School

as late as 1871”; and virtually all the “public” schools

of Washington and Georgetown, D.C. “until the middle

of the nineteenth century.” Jorgenson, supra, at 5.

Thus, even looking only at schools which have been

labeled “public,” post-colonial history reveals that this

was a flexible designation and that privately operated

schools sometimes also provided “free public”

education with the support of their state and local

governments. This evidence confirms that—far from

being a traditionally exclusive prerogative of the

State—even the provision of “free public” education

historically was undertaken in part by private entities.

II. DEEMING CHARTER SCHOOLS STATE

ACTORS UNDERMINES INNOVATION AND

DENIES EDUCATIONAL OPPORTUNITIES

TO DISADVANTAGED CHILDREN.

True to their names, charter schools reflect a

transactional agreement between state and non-state

actors. The charter school helps carry out the state’s

obligation to educate children. The state grants to

charter schools broad pedagogical discretion and

control over the school’s day to day operation. This

structure allows charter schools to implement

educational ideas that are novel or tailored to the

needs of particular students or families.

Over the last 50 years, America has witnessed an

unprecedented growth in charter school formation.

Fueled in part by a movement toward greater school

choice, charter schools provide parents with an

accessible alternative to public schools.

While they are often free to the student, charter

schools depend on the state for funding. A significant

portion of their state funding is based on the number

of students they enroll. Thus, charter schools must

innovate to attract prospective students. Two such

innovations in the charter school movement are singlesex and strict discipline schools.

A. An adverse decision will expose singlesex charter schools to constitutional

liability, undermining STEM education

for girls.

Single-sex schools can provide enormous benefits to

their students. E.g., Teresa A. Hughes, The

Advantages of Single-Sex Education, 23 Nat’l Forum

of Educ. Admin. & Supervision J. 2, 13 (2006),

https://bit.ly/2swFNGX (“[I]n single-sex settings

teachers are able to design the curriculum to tailor to

the individual needs of each sex.”); Amy Robertson

Hayes et al., The Efficacy of Single-Sex Education:

Testing for Selection and Peer Quality Effects, in Sex

Roles at 10 (Nov. 2011), https://bit.ly/3fJCVCl (“[G]irls

attending a single-sex school outperformed those girls

attending coeducational schools”). Accordingly, “since

the 1990s, there has been a resurgence of interest in

single-sex education in public schools [.]” Melinda D.

Anderson, The Resurgence of Single-Sex Education,

The Atlantic (Dec. 22, 2015), https://bit.ly/3V6n3d4.

There are numerous single-sex charter schools, and

many of them emphasize STEM education for girls.

Although women make up a majority of college

applicants and incoming college students, they earn

only 36% of STEM degrees. Because of this pipeline

problem, while women make up nearly half of the

nation’s workforce, they account for only 27% of STEM

workers. Anthony Martinez & Cheridan Christnacht,

Women Are Nearly Half of U.S. Workforce but Only

27% of STEM Workers, U.S. Census Bureau (Jan. 26,

2021), https://bit.ly/3MaJfPj. “By graduation, men

outnumber women in nearly every science and

engineering field, and in some, such as physics,

engineering, and computer science, the difference is

dramatic, with women earning only 20 percent of

bachelor’s degrees.” Am. Ass’n of Univ. Women, Why

So Few? (Feb. 2010) xiv, https://bit.ly/3T14pBR.

Girls-only STEM-based charter schools aim to fix

this problem. And their approach works. “Graduates of

girls’ schools are six times more likely to consider

majoring in math, science, and technology and three

times more likely to consider engineering compared to

girls who attended coed schools.” Int’l Coal. Of Girls

Schs., Why Girls’ Schools, https://bit.ly/3M6SbW3 (last

visited Mar. 10, 2025).

Deeming charter schools state actors under Section

1983 could expose these single-sex schools to lawsuits

and decisions that hold their policies unconstitutional.

In 1996, this Court held that the exclusion of women

from the Virginia Military Institute, then an all-male

public college, violated the Fourteenth Amendment’s

Equal Protection Clause. There, the Court reasserted

its “strong presumption that gender classifications are

invalid.” United States v. Virginia, 518 U.S. 515, 532

(1996) (citations omitted) [hereinafter VMI]. Justice

Scalia, in dissent, recognized the logical implication:

the VMI decision would render “single-sex public

education . . . unconstitutional.” Id. at 595 (Scalia, J.,

dissenting).

That prophecy has not yet come to pass. In the years

since, the Department of Education has adopted

regulations allowing public single-sex education,

provided that a “substantially equal” school is also

operated for the opposite sex. 34 C.F.R. § 106.34(c)(1).

But scholars have long argued that VMI makes singlesex primary and secondary schools unconstitutional.

See David S. Cohen & Nancy Levit, Still

Unconstitutional: Our Nation’s Experiment With State

Sponsored Sex Segregation in Education, 44 Seton

Hall L. Rev. 339 (2014). And leading advocacy groups

have signaled their constitutional objections to singlesex public schools. See Elizabeth Weil, Teaching Boys

and Girls Separately, N.Y. Times Mag. (Mar. 2, 2008),

https://nyti.ms/3Mgfgpd (noting that the ACLU

opposes all single-sex education); The Leadership

Conf. on Civ. & Hum. Rts., Single-Sex Proposed

Regulations

Comments

(Apr.

23,

2004),

https://bit.ly/3RFRjIS (opposing single-sex public

schools as unconstitutional, citing VMI).

It is entirely foreseeable that such a challenge could

reach this Court. Under VMI, those challenges may

well prevail on the merits. Deeming St. Isidore a state

actor, then, will deprive single-sex charter schools of

their best defense. As a result, these schools will

become subject to constitutional constraints ill-suited

to their innovative purposes. And, perversely, losing

the educational opportunities these schools provide

will primarily harm those who most need help.

Wealthier families can continue to pay for private

single-sex education. Lower-income families will be

deprived of yet another opportunity afforded to their

more affluent peers.

B. An adverse decision will hobble strictdiscipline charter schools that serve

underprivileged and at-risk youth.

Charter schools play a particularly important role in

inner cities, where they offer a viable alternative to

government-run schools. See Philip M. Gleason,

What’s the Secret Ingredient? Searching for Policies

and Practices that Make Charter Schools Successful,

Mathematica Policy Research Working Paper No. 47

at 9–10 (July 2016). Indeed, “[t]he greatest demand for

charters comes from parents in urban areas like

Newark and D.C. that have struggled with lowperforming traditional public schools.” Laura

McKenna, Why Don’t Suburbanites Want Charter

Schools?,

The

Atlantic

(Oct.

2015),

https://bit.ly/3fMlOQj. In such areas, violence and

lawlessness often prevent motivated students from

receiving the education that they deserve. See, e.g.,

Gerald J. Brunetti, Resilience Under Fire: Perspectives

on the Work of Experienced, Inner City High School

Teachers in the United States, 22 Teaching & Teacher

Edu. 812, 812 (2006).

Responding to parent demand, charter schools can

offer demanding curricula and safe environments

where inner-city students can thrive. To achieve those

goals, the schools often employ strict rules and

stringent discipline. This may involve tightly

regulated codes of conduct, restrictions or prohibitions

on cell phones or other electronic devices, and other

restrictions that remove distractions. This approach

has shown great promise. The network of Success

Academy Charter Schools is one example. Success

Academy opened its first campus in Harlem in 2006,

but today it operates four dozen New York City

campuses that serve more than 10,000 students, most

them

from

traditionally

disadvantaged

socioeconomic groups.

Parents flock to the Academy, hoping to provide

their children a path to success––with good reason.

Among other things, Success Academy students

outscore other New York City students on

standardized tests by more than two-fold. Rebecca

Mead, Success Academy’s Radical Educational

Experiment, The New Yorker (Dec. 4, 2017),

https://bit.ly/3CAeXCr (“[N[inety-five per cent of

Success Academy students achieved proficiency in

math, and eighty-four per cent in English Language

Arts; citywide, their respective rates were thirty-six

and thirty-eight per cent.”). Academy students are

“testing dynamo[s]” who outscore even many of their

counterparts in wealthy suburbs. Kate Taylor, At

Success Academy, Charter Schools, High Scores and

Polarizing Tactics, NY Times (Apr. 6, 2015),

https://nyti.ms/3M9XCnd.

Part of the Academy’s recipe for success is a strict

disciplinary policy. For example, in 2015, the schools

suspended 11% of their students over the course of the

school year, compared to the 4% suspension rate of the

City’s public schools. Eva Moskowitz, Turning Schools

Into

Fight

Clubs,

WSJ

(Apr.

2015)

https://on.wsj.com/3CAfPH9. In some Academy

schools, up to 20% of students may be suspended at

least once during the school year. Mead, supra.

The Academy and the thousands of families who

choose to attend deem this discipline necessary to

achieve the schools’ (undeniably) stellar results. Eva

Moskowitz, the founder of Success Academy, explains

that “we have found that when rules are clearly

established and are fairly and consistently enforced,

the learning environment is purposeful and joyful.”

Moskowitz, supra. It also teaches children the value of

accountability: “In [the real world], when you assault

your co-worker or curse out your boss, you don’t get a

‘restorative circle,’ you get fired.” Id. Accordingly,

“[s]uspensions convey the critical message to students

and parents that certain behavior is inconsistent with

being a member of the school community.” Id. Publiclyfunded charter schools like Success Academy make

this disciplinary system available to low-income

families who would not otherwise have the option to

send their children to private schools with stricter

codes of conduct, if they deem such an environment

necessary or beneficial for their children.

Adopting the Oklahoma Supreme Court’s erroneous

logic could threaten schools with these disciplinary

philosophies by opening the floodgates to litigation.

Indeed, this Court and the lower courts have heard

numerous Section 1983 cases regarding school

suspensions and expulsions, including cases alleging

violations of free speech and due process rights, as well

as cases alleging violations of the right against

unreasonable searches and seizures, including as

pertains to cell phone searches. See, e.g., Goss v. Lopez,

419 U.S. 565 (1975); Mahoney Area Sch. Dist. v. B.L.

ex rel Levy, 594 U.S. 180 (2021); Tinker v. Des Moines

Ind. Cmty. Sch. Dist., 393 U.S. 503 (1969); New Jersey

v. T.L.O., 469 U.S. 325 (1985); G.C. v. Owensboro Pub.

Schs., 711 F.3d 623 (6th Cir. 2013). Courts once

declined to expand these claims to charter schools, see,

e.g., Logiodice, 296 F.3d 22, but some have more

recently begun unleashing the tidal bore of Section

1983 suits. See, e.g., Patrick v. Success Acad. Charter

Sch., Inc., 354 F. Supp. 3d 185 (E.D.N.Y. 2018)

(holding that charter school was a state actor for

purposes of bringing Fourteenth Amendment due

process claims). Those most likely to suffer from this

change are the minority and low-income families who

cannot afford to pay for private education.

In sum, reducing charter schools to state actors

creates a certain and immediate risk of litigation that

would eviscerate the very independence and

innovation that charter schools need, that parents

demand, and that students deserve. Charter schools

are precisely the kind of “individual liberty and private

enterprise[,]” Halleck, 587 U.S. at 818, that the state

action doctrine ought to protect.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

GORDON D. TODD*

MACKENZI J.S. EHRETT

JOHN LEE

C. LEVI BROWN†

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

NICHOLAS R. REAVES

YALE FREE EXERCISE CLINIC

1919 Penn. Ave. N.W.

Suite 400

Washington, DC 20006

nicholas.reaves@yale.edu

Attorneys for Amicus Curiae

March 12, 2025

* Counsel of Record

† Admitted only in Arkansas and practicing pending

admission to the D.C. Bar and under the supervision

of the D.C. Bar.

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.