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

Supreme Court briefApr 7, 2025

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Nos. 24-394 and 24-396

In the Supreme Court of the United States

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, et al.,

Petitioners,

GENTNER DRUMMOND, Attorney General of

Oklahoma, ex rel. OKLAHOMA,

Respondent.

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

GENTNER DRUMMOND, Attorney General of

Oklahoma, ex rel. OKLAHOMA,

Respondent.

On Writs of Certiorari to the

Oklahoma Supreme Court

BRIEF OF OKLAHOMA PARENT LEGISLATIVE ADVOCACY

COALITION AND OKLAHOMA PARENTS, EDUCATORS,

CLERGY, AND TAXPAYERS AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

DANIEL MACH

HEATHER L. WEAVER

American Civil Liberties

Union Foundation

915 15th Street, NW

Suite 600

Washington, DC 20005

(202) 675-2330

dmach@aclu.org

hweaver@aclu.org

ALEX J. LUCHENITSER*

*Counsel of Record

LUKE ANDERSON

Americans United for

Separation of Church and

State

1310 L Street NW

Suite 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

anderson@au.org

(Additional counsel for Amici listed on inside cover.)

CECILLIA D. WANG

American Civil Liberties

Union Foundation

425 California Street

Suite 700

San Francisco, CA 94104

(415) 343-0775

cwang@aclu.org

LOUISE MELLING

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

lmelling@aclu.org

PATRICK ELLIOTT

Freedom From Religion

Foundation

P.O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

J. DOUGLAS MANN

1116 E. 21st Place

Tulsa, OK 74114

(918) 742-6188

douglasmann66@icloud

.com

ROBERT KIM

JESSICA LEVIN

WENDY LECKER

Education Law Center

60 Park Place

Suite 300

Newark, NJ 07102

(973) 624-1815

RKim@edlawcenter.org

JLevin@edlawcenter.org

WLecker@edlawcenter.org

BENJAMIN H. ODOM

JOHN H. SPARKS

MICHAEL W. RIDGEWAY

LISA M. MASON

Odom & Sparks, PLLC

2500 McGee Drive

Suite 140

Norman, OK 73072

(405) 701-1863

odomb@odomsparks.com

sparksj@odomsparks.com

ridgewaym@odomsparks

.com

masonl@odomsparks

.com

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ...............................................................3

I. As a public charter school, St. Isidore is a

governmental entity or other state actor .............3

A. Like all other Oklahoma virtual

charter schools, St. Isidore is a state

actor because it is a governmental

entity ................................................................3

Created by governmental action......................5

Subject to dissolution by government .............6

Controlled by governmental officials ..............6

Pursue governmental objectives ......................7

Directed by statutory mandates ......................8

Fully funded by the state .................................8

Mandatory reporting requirements .................9

Other attributes of governmental

entities ........................................................9

Defined as public schools and

governmental entities ...............................10

Petitioners’ other arguments .........................14

B. Alternatively, St. Isidore is a state

actor under state-action tests that

apply to private entities ................................15

1. St. Isidore is a state actor because it

performs a traditional, exclusive

public function..........................................15

TABLE OF CONTENTS—continued

Page

2. St. Isidore is a state actor because

Oklahoma has delegated one of its

constitutional obligations to the

school ........................................................21

II. Because St. Isidore is a governmental

entity and a state actor, it may not assert

a free-exercise challenge to state law that

governs the school...............................................22

III. Even if St. Isidore could assert freeexercise rights, Oklahoma’s prohibition on

religious education in public schools

satisfies any level of scrutiny .............................23

A. The Establishment Clause forbids the

creation of religious–governmental

institutions ....................................................25

B. The Establishment Clause forbids

public schools from inculcating a

religion in students .......................................27

C. Carson, Espinoza, and Trinity

Lutheran are inapplicable .............................29

CONCLUSION ..........................................................29

iii

TABLE OF AUTHORITIES

Page(s)

CASES

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

526 U.S. 40 (1999) .................................................. 16

Arkansas v. Texas,

346 U.S. 368 (1953) ................................................ 11

Biden v. Nebraska,

600 U.S. 477 (2023) ............................................ 4, 11

Board of Cnty. Comm’rs v. Umbehr,

518 U.S. 668 (1996) ................................................ 11

Board of Educ. v. Grumet,

512 U.S. 687 (1994) ................................................ 26

Briscoe v. Bock,

540 F.2d 392 (8th Cir. 1976).................................. 13

Capitol Square Rev. & Advisory Bd. v. Pinette,

515 U.S. 753 (1995) ................................................ 24

Carson v. Makin,

596 U.S. 767 (2022) ................................................ 29

Chudacoff v. University Med. Ctr. of S. Nev.,

649 F.3d 1143 (9th Cir. 2011).......................... 12, 13

Department of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) ................................................ 4, 5

Edwards v. Aguillard,

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

Engel v. Vitale,

370 U.S. 421 (1962) .......................................... 25, 28

Epperson v. Arkansas,

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

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ................................................ 29

TABLE OF AUTHORITIES—continued

Page(s)

Estelle v. Gamble,

429 U.S. 97 (1976) .................................................. 22

Evans v. Newton,

382 U.S. 296 (1966) .................................... 16, 21, 26

Everson v. Board of Educ.,

330 U.S. 1 (1947) .............................................. 24, 25

Garcetti v. Ceballos,

547 U.S. 410 (2006) ................................................ 23

Hayut v. State Univ. of N.Y.,

352 F.3d 733 (2d Cir. 2003) ................................... 12

Illinois ex rel. McCollum v. Board of Educ.,

333 U.S. 203 (1948) .......................................... 26, 28

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) .......................................... 13, 15

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .......................................... 24, 28

Larkin v. Grendel’s Den, Inc.,

459 U.S. 116 (1982) ................................................ 26

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ............................ 3–5, 10, 11, 15

Lee v. Weisman,

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

Lindke v. Freed,

601 U.S. 187 (2024) ............................................ 3, 12

Manhattan Cmty. Access Corp. v. Halleck,

587 U.S. 802 (2019) ........................ 13, 15, 16, 20, 21

Matrix Distributors, Inc. v. National Ass’n of

Bds. of Pharmacy,

34 F.4th 190 (3d Cir. 2022).................................... 12

TABLE OF AUTHORITIES—continued

Page(s)

NCAA v. Tarkanian,

488 U.S. 179 (1988) ................................................ 12

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 23

Polk County v. Dodson,

454 U.S. 312 (1981) ................................................ 13

Regents of Univ. of Cal. v. Doe,

519 U.S. 425 (1997) ................................................ 12

Rendell-Baker v. Kohn,

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

Rust v. Sullivan,

500 U.S. 173 (1991) ................................................ 23

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

530 U.S. 290 (2000) ................................................ 28

School Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) .......................................... 25–28

Town of Greece v. Galloway,

572 U.S. 565 (2014) ................................................ 24

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) ................................................ 29

United States v. Ackerman,

831 F.3d 1292 (10th Cir. 2016)................ 4, 5, 10, 14

Wallace v. Jaffree,

472 U.S. 38 (1985) .................................................. 28

West v. Atkins,

487 U.S. 42 (1988) ...................................... 15, 21, 22

Williams v. Mayor of Baltimore,

289 U.S. 36 (1933) .................................................. 23

TABLE OF AUTHORITIES—continued

Page(s)

Woodbury v. McKinnon,

447 F.2d 839 (5th Cir. 1971).................................. 13

Ysursa v. Pocatello Educ. Ass’n,

555 U.S. 353 (2009) ................................................ 23

Zorach v. Clauson,

343 U.S. 306 (1952) ................................................ 27

CONSTITUTIONAL PROVISIONS

Ga. Const. of 1868, Art. VI, § 1 ................................. 18

Mass. Const. of 1780, Ch. 5, § 2 ................................ 17

Okla. Const. Art. I, § 5 .............................. 7, 17, 21, 22

Okla. Const. Art. XI, § 2 ........................................ 7, 21

Okla. Const. Art. XI, § 3 ........................................ 7, 21

Okla. Const. Art. XIII, § 1 ......................... 7, 17, 21, 22

STATUTES

20 U.S.C. 7801 ........................................................... 11

Okla. Stat. tit. 11, §§ 3-101 to 107 ............................ 14

Okla. Stat. tit. 11, § 12-102 ....................................... 14

Okla. Stat. tit. 63, § 3203 .......................................... 12

Okla. Stat. tit. 70, § 1-109 ........................................... 8

Okla. Stat. tit. 70, §§ 3-130 et seq. .............................. 6

Okla. Stat. tit. 70, § 3-131 ........................................... 7

Okla. Stat. tit. 70, § 3-132.1 .................................. 6, 23

Okla. Stat. tit. 70, § 3-132.2 ...................................... 10

Okla. Stat. tit. 70, § 3-134 ....................................... 6–9

Okla. Stat. tit. 70, § 3-136 ............. 7–10, 14, 15, 17, 21

vii

TABLE OF AUTHORITIES—continued

Page(s)

Okla. Stat. tit. 70, § 3-137 ....................................... 6, 7

Okla. Stat. tit. 70, § 3-140 ........................................... 8

Okla. Stat. tit. 70, § 3-141 ........................................... 8

Okla. Stat. tit. 70, § 3-142 ..................................... 9, 10

Okla. Stat. tit. 70, § 5-200 ........................................... 7

Okla. Stat. tit. 70, § 6-401 ........................................... 8

Okla. Stat. tit. 70, § 9-101 ........................................... 8

Okla. Stat. tit. 70, § 11-103.6m ................................... 8

Okla. Stat. tit. 70, § 11-103.16 .................................... 8

Okla. Stat. tit. 70, § 11-202 ......................................... 8

Okla. Stat. tit. 70, § 13-101.2 .................................... 20

Okla. Stat. tit. 70, § 18-200.1 ...................................... 8

Okla. Stat. tit. 70, § 18-201.1 ...................................... 8

Okla. Stat. tit. 70, § 24-100.10 .................................... 8

Okla. Stat. tit. 70, § 24-101.3 ...................................... 8

Okla. Stat. tit. 70, § 24-157 ......................................... 8

Okla. Stat. tit. 70, §§ 28-100 et seq. .......................... 20

Okla. Stat. tit. 70, § 28-101 ....................................... 20

Okla. Stat. tit. 70, § 1210.196 ..................................... 8

Okla. Stat. tit. 70, § 1210.508 ..................................... 8

Okla. Stat. tit. 70, § 1210.508-5 .................................. 8

Okla. Stat. tit. 70, § 1210.508-6 .................................. 8

Okla. Stat. tit. 70, § 1210.508B .................................. 8

Okla. Stat. tit. 70, § 1210.545 ..................................... 7

Okla. Stat. tit. 70, § 3206 .......................................... 12

Okla. Stat. tit. 70, § 3301 .......................................... 12

viii

TABLE OF AUTHORITIES—continued

Page(s)

Okla. Stat. tit. 70, § 3302 .......................................... 12

Okla. Stat. tit. 70, § 3901 .......................................... 12

REGULATIONS

Okla. Admin. Code § 210:35-3-201 ............................. 7

Okla. Admin. Code § 210:35-33-2 ............................... 8

Okla. Admin. Code § 210:40-87-6 ............................... 8

OTHER MATERIALS

Carl F. Kaestle, Pillars of the Republic:

Common Schools and American Society,

1780–1860 (Eric Foner, ed., 1983) .................. 17, 19

Charles Pablico-Fernandez, Note, Born to Die:

Finding the Right to Healthcare in the

History and Tradition of the Bill of Rights

Amendments, 57 Loy. L.A. L. Rev. 791

(2024) ...................................................................... 22

Cong. Globe, 40th Cong., 1st Sess. (1867) ................ 18

Derek W. Black, Localism, Pretext, and the

Color of School Dollars, 107 Minn. L. Rev.

1415 (2023) ............................................................. 18

Derek W. Black, The Constitutional

Compromise to Guarantee Education, 70

Stan. L. Rev. 735 (2018) .................................. 18, 19

Derek W. Black, The Fundamental Right to

Education, 94 Notre Dame L. Rev. 1059

(2019) ...................................................................... 19

Dianna Everett, The Encyclopedia of

Oklahoma History and Culture: Schools,

TABLE OF AUTHORITIES—continued

Page(s)

Common, Okla. Hist. Soc’y,

https://perma.cc/544H-RJH8 (last visited

Mar. 30, 2025) .................................................. 16, 17

Grace and Truth Christian Acad., Application,

https://perma.cc/U28Z-RNXK (last visited

Apr. 2, 2025) ........................................................... 20

Hon. Al. McAffrey, Okla. Op. Att’y Gen. No.

07-23, 2007 WL 2569195 (2007) ............................ 11

James Madison, Detached Memoranda (1820),

https://bit.ly/3HGs2e7. ........................................... 27

James Madison, Memorial and Remonstrance

against Religious Assessments (1785),

https://bit.ly/2YwACub .......................................... 25

Johann N. Neem, Democracy’s Schools: The

Rise of Public Education in America (2017) ......... 19

Letter from Thomas Jefferson to Samuel

Miller (Jan. 23, 1808), https://bit.ly/31BeShI ....... 27

Okla. Code Jud. Conduct R. 3.4 ................................ 11

Okla. Jud. Ethics Op. 2023-3,

538 P.3d 572 (Okla. Jud. Ethics Advisory

Panel 2023) ...................................................... 11, 14

Oscar William Davison, Oklahoma’s

Educational Heritage, 27 Chrons. Okla. 354

(1949) ................................................................ 16, 17

St. Isidore of Seville Catholic Virtual School,

Parent & Student Handbook 2024–2025

(Mar. 18, 2024), https://perma.cc/NHP2D5Q6 ................................................................ 28, 29

TABLE OF AUTHORITIES—continued

Page(s)

Steven J. Heyman, The Light of Nature: John

Locke, Natural Rights, and the Origins of

American Religious Liberty, 101 Marq. L.

Rev. 705 (2018) ...................................................... 25

William C. Sonnenberg, Elementary and

Secondary Education, in Nat’l Ctr. for Educ.

Stat., U.S. Dep’t of Educ., 120 Years of

American Education: A Statistical Portrait

(Thomas D. Snyder ed., 1993) ............................... 19

BRIEF OF OKLAHOMA PARENT LEGISLATIVE

ADVOCACY COALITION AND OKLAHOMA PARENTS,

EDUCATORS, CLERGY, AND TAXPAYERS MELISSA

ABDO, KRYSTAL BONSALL, BRENDA LENÈ, MICHELE

MEDLEY, DR. BRUCE PRESCOTT, REV. DR. MITCH

RANDALL, REV. DR. LORI WALKE, AND

ERIKA WRIGHT AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

INTERESTS OF THE AMICI CURIAE 1

Amici are Oklahoma public-school parents,

educators, public-education advocates, clergy, and

taxpayers. They are committed supporters of public

schools and religious freedom, and they oppose the use

of their tax dollars to establish and fund a religious

public school—petitioner St. Isidore of Seville

Catholic Virtual School. They are also plaintiffs in a

related lawsuit that challenges the establishment and

proposed state funding of St. Isidore under Oklahoma

law, OKPLAC, Inc. v. Oklahoma Statewide Charter

School Board, No. CV-2023-1857 (Okla. Cnty. Dist.

Ct. 2023).

1 No counsel for a party authored this brief in whole or in part,

and no person other than amici, their members, or their counsel

made a monetary contribution to fund the brief ’s preparation or

submission.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners seek to establish a religious governmental entity. There is no clearer Establishment

Clause violation than this.

Oklahoma virtual charter schools are governmental entities. They are created by and can be dissolved

by governmental action, are controlled by governmental officials, pursue governmental objectives, are governed by extensive statutory mandates, are fully

state-funded, have numerous other characteristics of

governmental entities, and are defined as public

schools and governmental entities by state law. And

even if they were not governmental entities, they

would still qualify as state actors under other criteria

developed by this Court.

As governmental entities, Oklahoma virtual charter schools do not have Free Exercise Clause rights to

challenge the very laws that create them. But even if

St. Isidore could do so, it must—as a governmental entity or other state actor—comply with the U.S. Constitution. And the Constitution’s Establishment Clause,

which the Free Exercise Clause cannot override, prohibits St. Isidore from operating as a religious public

charter school.

This Court has long recognized that the Establishment Clause bars governmental entities from establishing religious bodies, from fusing governmental

and religious functions, and from delegating governmental authority to religious entities. The Court also

has long held that the Establishment Clause prohibits

public schools from inculcating a particular faith in

their students. These longstanding principles are

rooted in the Founders’ understandings that religion

is a matter of personal conscience, and that the lessons of history have demonstrated that governmental

efforts to control or influence religious belief lead to

religious strife and oppression.

The Oklahoma Supreme Court’s judgment should

be affirmed.

ARGUMENT

As a public charter school, St. Isidore is a

governmental entity or other state actor.

To assert the protections of the Free Exercise

Clause and evade the prohibitions of the Establishment Clause, petitioners attempt to paint St. Isidore—a public charter school—as a private entity that

is not engaged in any state action. But Oklahoma virtual charter schools are governmental entities, so they

are inherently state actors. And even if they are not

governmental entities, they are still state actors under at least two state-action tests that apply to otherwise private entities.

A. Like all other Oklahoma virtual charter

schools, St. Isidore is a state actor because it is a governmental entity.

Governmental entities are inherently state actors.

See, e.g., Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374, 378, 383, 400 (1995). As this Court recently

noted, in cases involving governmental employees or

entities, “state action is easy to spot.” Lindke v. Freed,

601 U.S. 187, 195 (2024). “Courts do not ordinarily

pause to consider whether [the Constitution] applies

to the actions of police officers, public schools, or

prison officials.” Ibid.

Thus, to determine whether a party is a state actor, this Court first considers whether the party is a

governmental entity; if it is, there is no need to consider state-action tests applicable to private parties.

For example, in Lebron, 513 U.S. at 378, 400, the

Court held that Amtrak “is part of the Government for

purposes of the First Amendment,” and that it was

therefore “unnecessary to traverse th[e] difficult terrain” of determining when the acts of private entities

can be regarded as state action.

The Court explained in Lebron that Amtrak was

created by legislation, that it is controlled by government-appointed officials, and that its purpose is to

pursue governmental objectives. 513 U.S. at 383–386,

391, 397–400. The Court reaffirmed that Amtrak is a

governmental entity in Department of Transportation

v. Ass’n of American Railroads, 575 U.S. 43, 52–53

(2015), pointing to these and additional considerations, including that “Congress has mandated certain

aspects of Amtrak’s day-to-day operations,” that

Amtrak is “dependent on federal financial support,”

that Amtrak must provide annual reports on certain

matters to Congress and the President, and that

Amtrak has other characteristics of governmental entities, such as being subject to the Freedom of Information Act. Similarly, in Biden v. Nebraska, 600 U.S.

477, 491 (2023), the Court held that the Missouri

Higher Education Loan Authority (MOHELA) was a

governmental entity because “[i]t was created by the

State to further a public purpose, is governed by state

officials and state appointees, reports to the State,

and may be dissolved by the State.” In addition, thenJudge Gorsuch applied this kind of analysis for the

Tenth Circuit in United States v. Ackerman, concluding that a clearinghouse for missing children was a

governmental entity because it was given exclusive

duties and powers by a federal statute, was funded

primarily by the federal government, and “is statutorily required to perform over a dozen separate functions, a fact that evinces the sort of ‘day-to-day’ statutory control over its operations that the Court found

tellingly present in the Amtrak cases.” 831 F.3d 1292,

1295–1300 (10th Cir. 2016) (quoting Ass’n of Am.

R.Rs., 575 U.S. at 53).

Oklahoma virtual charter schools have the same

characteristics that led this Court to hold that Amtrak

and MOHELA are governmental entities. The schools

are created by governmental action. They can be dissolved by governmental action. They are controlled by

governmental officials. They are charged with pursuing governmental objectives. They are subject to extensive statutory mandates that direct their day-today operations. They are fully funded by the government. They must report on their operations to the government. And they have many other attributes of governmental entities. What is more, while this Court

held that Amtrak is a governmental entity notwithstanding that a statute professed that it wasn’t (see

Lebron, 513 U.S. at 391–392), Oklahoma virtual charter schools are defined and designated as public

schools and governmental entities under state law, so

this case should be an easier one than the Amtrak

cases were.

Created by governmental action. Governmental action is responsible for the creation of Oklahoma

virtual charter schools in two respects. First, virtual

charter schools were authorized by the Oklahoma legislature through the Oklahoma Charter Schools Act,

Okla. Stat. tit. 70, §§ 3-130 et seq.2 Second, an individual virtual charter school can come into existence only

if the Oklahoma Statewide Charter School Board—a

governmental entity—approves a detailed application

for a charter for the school. Okla. Stat. tit. 70, §§ 3132.1(A), 3-132.1(I), 3-134(B), 3-134(I). The application process requires the Charter Board to assess the

quality of the application by considering thirty-five

statutorily enumerated categories of information submitted by the applicant, including a mission statement, a financial plan, hiring policies, academic programs, an organizational chart, governing bylaws,

and specific individuals responsible for startup tasks.

Id. § 3-134(B).

Subject to dissolution by government. Oklahoma virtual charter schools can be dissolved by governmental action as well. They may be abolished in

their entirety by repeal of the Charter Schools Act.

And the Charter Board may deny renewal of or terminate an individual school’s charter for poor performance or other good cause. Okla. Stat. tit. 70, § 3137(D)–(F).

Controlled

governmental

officials.

Throughout their existence, Oklahoma virtual charter

schools remain under the control of superior governmental officials. The Charter Board must provide

“oversight of the operations of * * * virtual charter

schools in the state through annual performance reviews and reauthorization.” Id. § 134(I)(1). It must

“approve or deny proposed contracts between the governing board of a * * * virtual charter school and an

2 All citations to Oklahoma statutes and regulations are to the

current versions.

educational management organization” (id. §

134(I)(6)), which is a “for-profit or nonprofit organization that receives public funds to provide administration and management services” for public schools (id.

§ 5-200(A)). And the Charter Board must monitor “the

performance and legal compliance of * * * virtual

charter schools.” Id. § 134(I)(7).

Moreover, the Charter Board is not the only superior governmental entity that exercises control over

virtual charter schools in Oklahoma. The schools

must submit annual accreditation applications to the

Oklahoma State Department of Education. Okla. Admin. Code § 210:35-3-201(a). The Charter Schools Act

also requires the Oklahoma State Board of Education

to “identify * * * virtual charter schools in the state

that are ranked in the bottom five percent (5%) of all

public schools as determined pursuant” to a statutory

formula, and virtual charter schools that are so

ranked over a three-year period are subject to closure.

Okla. Stat. tit. 70, § 3-137(H) (citing id. § 1210.545).

Pursue governmental objectives. Oklahoma

virtual charter schools are charged by statute with

fulfilling governmental objectives—including effectuating an Oklahoma constitutional mandate that the

state provide free education that is open to all. See

Okla. Const. Art. I, § 5; Art. XI, §§ 2 and 3; Art. XIII,

§ 1; Okla. Stat. tit. 70, § 3-131(A). To that end, the

Charter Schools Act requires virtual charter schools

to “be as equally free and open to all students as traditional public schools.” Okla. Stat. tit. 70, § 3136(A)(9). Thus, the Act prohibits virtual charter

schools from “charg[ing] tuition or fees.” Ibid. Further,

the Act requires that a lottery be used to select which

students may enroll in a charter school if the number

of students applying exceeds the space available, and

the Act prohibits admission preferences other than geographic ones. Id. § 3-140(A) and (D).

Directed by statutory mandates. Oklahoma exercises significant control over virtual charter schools’

day-to-day operations through extensive statutory requirements that do not apply (see generally Okla. Admin. Code § 210:35-33-2) to private schools. For example, Oklahoma virtual charter schools must establish

“academic program[s] aligned with state standards”

(Okla. Stat. tit. 70, § 3-134(B)(12)) and must adhere to

certain curricular requirements and prohibitions that

are applicable to other public schools (id. §§ 11103.6m(C), 11-103.16, 24-157(B)(1), 1210.508B(D)).

They must “comply with all * * * laws relating to the

education of children with disabilities in the same

manner as a school district.” Id. § 3-136(A)(6). They

must follow the same rules that govern other public

schools on school-year length (id. §§ 3-136(A)(10), 1109(A)), bus transportation (id. §§ 3-141(A), 9-101(C)),

student testing (id. §§ 3-136(A)(4), 1210.508(F),

1210.508-5), student suspension (id. §§ 3-136(A)(11),

24-101.3), school libraries (id. § 11-202), electronic

communication with students (id. § 6-401), provision

of health-related information (id. §§ 24-100.10(A),

1210.196(B)), college financial-aid applications (id. §

1210.508-6), and insurance coverage and fidelity

bonding (Okla. Admin. Code § 210:40-87-6(a)–(b)). See

also supra at 7; infra at 8–9.

Fully funded by the state. Oklahoma provides

full state funding for virtual charter schools. They are

funded in accordance with the same statutory formulas as traditional public schools. Okla. Stat. tit. 70, §§

3-142(A), 3-142(C), 18-200.1, 18-201.1.

Mandatory reporting requirements. Oklahoma virtual charter schools must submit to the Charter Board detailed annual reports that cover “student

academic proficiency,” “student academic growth,”

“achievement gaps in both proficiency and growth between major student subgroups,” “student attendance,” “recurrent enrollment from year to year,” highschool graduation rates, “postsecondary readiness,”

“financial performance and sustainability and compliance with state and Internal Revenue Service financial reporting requirements,” “audit findings or deficiencies,” “accreditation and timely reporting,” “governing board performance and stewardship,” and “mobility of student population.” Okla. Stat. tit. 70, § 3136(A)(18); see also id. § 3-136(A)(17). They also must

comply with all other “reporting requirements” that

apply to public “school district[s].” Id. § 3-136(A)(5).

For example, they must report student test results in

the same manner “as is required of a school district.”

Id. § 3-136(A)(4).

Other attributes of governmental entities.

Oklahoma virtual charter schools are similar to other

governmental entities in many additional respects.

Like other governmental entities, they must “comply

with the Oklahoma Open Meeting Act and the Oklahoma Open Records Act.” Okla. Stat. tit. 70, § 3136(A)(15). They must have governing boards that

hold public meetings in at least ten months of the

year. Id. §§ 3-134(B)(33), 3-136(A)(7). Governing

board members are “subject to the same conflict of interest requirements” and “continuing education requirements” as members of local school boards. Id. §

3-136(A)(7).

Oklahoma virtual charter schools are also “eligible to receive current government lease rates” if they

choose to lease property. Okla. Stat. tit. 70, § 3-142(F).

Their employees are eligible for the same retirement

benefits that Oklahoma provides to teachers at other

public schools (id. § 3-136(A)(13)) and for the same insurance programs that are available to employees of a

traditional public-school district (id. § 3-136(A)(14)).

And Oklahoma virtual charter schools are “considered

* * * school district[s] for purposes of tort liability under The Governmental Tort Claims Act.” Id. § 3136(A)(12).

Defined as public schools and governmental

entities. While there are numerous similarities between Oklahoma virtual charter schools and the entities held to be governmental in Lebron and Ackerman,

there is one major difference between them, which

should make this case a far easier one than those

cases were. The courts concluded that the entities in

those cases were governmental even though Amtrak

was defined by statute as a for-profit corporation and

not “an agency or establishment of the United States

government” (Lebron, 513 U.S. at 385, 391) and the

agency in Ackerman was a nonprofit corporation (831

F.3d at 1295). By contrast, Oklahoma virtual charter

schools are defined as governmental entities under

state law, both by statute and through judicial opinions.

The Oklahoma Charter Schools Act defines “charter school” as “a public school established by contract.”

Okla. Stat. tit. 70, § 3-132.2(C)(1)(b). Furthermore,

each Oklahoma virtual charter school is considered to

be a separate “local education agency” (id. § 3-142(D)),

which is “a public board of education or other public

authority legally constituted” for “administrative control or direction” of public schools (see 20 U.S.C.

7801(30)(A)). The Oklahoma Judicial Ethics Advisory

Panel treats service on the board of an Oklahoma

charter school as an “appointment to a governmental

committee, board, commission, or other governmental

position.” Okla. Jud. Ethics Op. 2023-3, 538 P.3d 572,

572 (Okla. Jud. Ethics Advisory Panel 2023) (quoting

Okla. Code Jud. Conduct R. 3.4). A 2007 Oklahoma

Attorney General opinion states that “[t]he charter

school program is part of the public education system”

and that charter schools are “under the control of the

Legislature” and further the Legislature’s “mandate

of establishing and maintaining a system of free public education.” Hon. Al. McAffrey, Okla. Op. Att’y Gen.

No. 07-23, 2007 WL 2569195, at *6–7 (2007). And, of

course, the Oklahoma Supreme Court concluded below that Oklahoma virtual charter schools are governmental entities as a matter of state law. Pet. App.

17a–19a.

To be sure, in determining whether an entity is

governmental for federal constitutional purposes, how

the entity is defined by statute cannot override the

substance of what the entity is. See Lebron, 513 U.S.

at 392–393, 397; see also Board of Cnty. Comm’rs v.

Umbehr, 518 U.S. 668, 679–680 (1996). Nevertheless,

this Court has accorded considerable weight to how a

state defines an entity. See Biden, 600 U.S. at 490–

491 (emphasizing that MOHELA was statutorily defined as a “public instrumentality” and concluding

that MOHELA was governmental both “[b]y law and

function”); Arkansas v. Texas, 346 U.S. 368, 370 &

nn.7–9 (1953) (relying on state judicial opinions that

held that University of Arkansas was state entity, together with factors similar to those used in Amtrak

cases, to conclude that University was governmental);

see also Lindke, 601 U.S. at 195 (“Courts do not ordinarily pause to consider whether [the Constitution]

applies to the actions of * * * public schools.”); Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 n.5

(1997) (holding that a state agency’s status under the

Eleventh Amendment “is a question of federal law”

that “can be answered only after considering the provisions of state law that define the agency’s character”). Here, the substance and the definition both lead

to the same conclusion: Oklahoma virtual charter

schools are governmental entities.

In these respects, Oklahoma virtual charter

schools are similar to public universities and public

hospitals, which are not only labeled as “public” but

also are created by governmental action, are overseen

by governmental officials, are charged with pursuing

governmental objectives, are funded by taxes, and

have various other governmental characteristics. See

Okla. Stat. tit. 70, §§ 3206, 3301–3302, 3901 (describing the creation, funding, and governance of the University of Oklahoma); Okla. Stat. tit. 63, § 3203 (describing the purpose and structure of the Oklahoma

university hospital system). Public universities and

public hospitals are, of course, readily recognized as

government-entity state actors. See NCAA v. Tarkanian, 488 U.S. 179, 192 (1988) (“A state university

without question is a state actor.”); Matrix Distributors, Inc. v. National Ass’n of Bds. of Pharmacy, 34

F.4th 190, 195 (3d Cir. 2022) (confirming that “a public entity (like a state university)” is a “classic” example of a state actor); Hayut v. State Univ. of N.Y., 352

F.3d 733, 744 (2d Cir. 2003) (“We think it clear that a

professor employed at a state university is a state actor.”); Chudacoff v. University Med. Ctr. of S. Nev., 649

F.3d 1143, 1150 (9th Cir. 2011) (“[T]here is no dispute

that the operation of [a public] hospital is state action[.]” (quoting Woodbury v. McKinnon, 447 F.2d 839,

842 (5th Cir. 1971)); Briscoe v. Bock, 540 F.2d 392,

394–395 (8th Cir. 1976) (“There is no question that

* * * those in charge of the affairs of a public hospital

* * * must conform to * * * the fourteenth amendment.”).

Petitioners contend that there are three cases in

which this Court concluded that entities or persons labeled as “public” were not engaged in state action:

Manhattan Community Access Corp. v. Halleck, 587

U.S. 802, 805 (2019); Jackson v. Metropolitan Edison

Co., 419 U.S. 345, 350 n.7 (1974); and Polk County v.

Dodson, 454 U.S. 312, 317–320 (1981). See St. Isidore

Br. 32; see also Board Br. 26–27. But the entity at issue in Halleck was not even labeled “public”—it was a

private nonprofit corporation that merely operated a

public-access cable channel (587 U.S. at 805); and the

entity at issue in Jackson was a “privately owned and

operated” utility company (419 U.S. at 350). Neither

entity was defined under state law as governmental,

and neither had any substantive attributes of governmental entities. See Halleck, 587 U.S. at 805, 809–811

& n.1; Jackson, 419 U.S. at 350–353. And in Polk, the

Court concluded that public defenders are not state

actors when acting as counsel in a criminal proceeding, because they are acting as adversaries to the state

in that role. See 454 U.S. at 318–320, 325. Oklahoma

virtual charter schools, on the other hand, are defined

as governmental entities under state law, have numerous attributes of governmental entities, and do

not act as adversaries to the state.

Petitioners’ other arguments. None of petitioners’ remaining arguments can overcome the voluminous evidence establishing that Oklahoma virtual

charter schools are governmental entities.

Petitioners argue that St. Isidore is a private entity because it was originally created by private entities. Board Br. 40; St. Isidore Br. 29. But in Ackerman,

then-Judge Gorsuch rejected a similar argument, reasoning that “an admittedly private entity can be made

into a public one later.” 831 F.3d at 1299. Even if the

entity that submitted St. Isidore’s charter application

was private when it did so, once the application was

approved, the entity became a governmental body (see

supra at 5–13) (or a new governmental body—the St.

Isidore charter school—was formed, see Resp’t’s Br.

13 n.5, 35), and the members of the entity’s governing

board became public officials (see Okla. Jud. Ethics

Op. 2023-3, 538 P.3d at 572; Okla. Stat. tit. 70, § 3136(A)(7)). The situation here is akin to what happens

when private residents of an unincorporated community get together to organize a town in Oklahoma: The

governmental entity—the town—comes into being

upon electoral approval, and the persons elected to the

town’s board of trustees become public officials. See

Okla. Stat. tit. 11, §§ 3-101 to 107, 12-102.

Petitioners also argue that Oklahoma virtual

charter schools are not governmental entities because

they are exempt from some rules that govern traditional public schools. See Board Br. 42–43; St. Isidore

Br. 35. But these exemptions do not change any of the

numerous above-described characteristics that render

Oklahoma virtual charter schools governmental entities. See Lebron, 513 U.S. at 392 (Amtrak was governmental entity despite being exempted from various

legal requirements ordinarily applicable to governmental bodies).

Because Oklahoma virtual charter schools are

governmental entities, there is no question that they

are state actors, and this should end the inquiry. See

Lebron, 513 U.S. at 378.

B. Alternatively, St. Isidore is a state actor

under state-action tests that apply to private entities.

Even if Oklahoma virtual charter schools are not

governmental entities, they are still state actors. In

some circumstances, the conduct of private entities

“may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351. These circumstances include

“when the private entity performs a traditional, exclusive public function” and “when the government has

outsourced one of its constitutional obligations to a

private entity.” Halleck, 587 U.S. at 809, 810 n.1; see

also West v. Atkins, 487 U.S. 42, 56 (1988). Oklahoma

virtual charter schools are state actors under both of

these tests.

1. St. Isidore is a state actor because it

performs a traditional, exclusive public function.

A private entity is a state actor when it exercises

a function “traditionally and exclusively performed”

by the government. Halleck, 587 U.S. at 809. Oklahoma virtual charter schools perform the traditional,

exclusive public function of providing education that

is “free and open to all students.” Okla. Stat. tit. 70, §

3-136(A)(9) (emphasis added).

When analyzing a state-level function such as the

one at issue here, this Court has looked primarily to

statewide traditions and history. See Rendell-Baker v.

Kohn, 457 U.S. 830, 842 (1982); American Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999). The Court

has also sometimes situated its state historical analysis within broader, nationwide traditions. See, e.g.,

Halleck, 587 U.S. at 810–811 (citing local and nationwide historical sources). The tradition at issue must

be well established. See Rendell-Baker, 457 U.S. at

842; Evans v. Newton, 382 U.S. 296, 301 (1966).

That is the case here. In Oklahoma, the provision

of education that is free and open to all has been an

exclusively public function since the state came into

existence. Prior to Oklahoma statehood in 1907,

schools in the region generally fell into three categories: subscription schools, mission schools, and schools

operated by Indigenous nations and reservations. Dianna Everett, The Encyclopedia of Oklahoma History

and Culture: Schools, Common, Okla. Hist. Soc’y,

https://perma.cc/544H-RJH8. These schools were not

free and open to all. Subscription schools relied on

funding from pupils’ parents. Ibid. Mission schools

and those operated by Indigenous people generally

served only Indigenous pupils. See Oscar William Davison, Oklahoma’s Educational Heritage, 27 Chrons.

Okla. 354, 362–365 (1949). In the years following the

Civil War, the children of white settlers were sometimes allowed to attend these schools, but they were

required to pay tuition. Id. at 365.

Under this hodgepodge educational arrangement,

many children did not have access to educational facilities. Everett, Okla. Hist. Soc’y. During the Oklahoma Territory period (1890–1907), school enrollment

grew as the territorial government appropriated

funds for public schools. See Davison, 27 Chrons.

Okla. at 367; Everett, Okla. Hist. Soc’y. But it was the

adoption of the state constitution in 1907 that fully

committed Oklahoma to the provision of education

that is free and open to all: Section 5 of Article I of the

Oklahoma Constitution required that “[p]rovisions

shall be made for the establishment and maintenance

of a system of public schools, which shall be open to all

the children of the state”; and Section 1 of Article XIII

required that “[t]he Legislature shall establish and

maintain a system of free public schools wherein all

the children of the State may be educated.” (Emphases added.)

Indeed, the Charter Schools Act’s mandate that

charter schools be “free and open to all students”

(Okla. Stat. tit. 70, § 3-136(A)(9)) quotes directly from

these 1907 Oklahoma constitutional clauses, which

remain in place today. Following the enactment of the

1907 Constitution, education expanded rapidly in Oklahoma. According to the state’s first superintendent

of public instruction, Oklahoma enrolled in 1908 “not

less than 140,000 children who never entered a public

schoolhouse before and a vast majority of whom never

attended a school of any kind a single day.” Everett,

Okla. Hist. Soc’y. Oklahoma public schools had done

what private education simply could not: provide a

system of free education for all children.

Oklahoma’s experience mirrors that of states

across the union, where “tax support was a necessary

condition for a free school system.” Carl F. Kaestle,

Pillars of the Republic: Common Schools and American Society, 1780–1860 at 151 (Eric Foner, ed., 1983)

(Kaestle). When our nation was founded, several state

constitutions mandated some state support for education. See, e.g., Mass. Const. of 1780, Ch. 5, § 2 (“[I]t

shall be the duty of legislatures and magistrates * * *

to cherish the interests of * * * public schools and

grammar schools in the towns.”); see generally Derek

W. Black, Localism, Pretext, and the Color of School

Dollars, 107 Minn. L. Rev. 1415, 1448–1449 (2023).

But in the early days of the Republic, schools were

generally “a product of private action” and were “not

open to all, free, or part of some formal system of

schools.” Black, 107 Minn. L. Rev. at 1450. Early

schools “depended heavily on tuition,” and “many

communities had no schools at all.” Ibid.

This changed with the advent of the “common

schools” movement, which transformed education in

the North in the 1820s and 1830s and in the South

after the Civil War. Black, 107 Minn. L. Rev. at 1450–

1451. Common schools “fell under the purview of public officials” and were “funded by state and local taxes

designated precisely for them.” Id. at 1451. Soon

states “began abolishing tuition and fees in common

schools,” and many states mandated “free” education

for “all” in their state constitutions. Id. at 1457–1458;

see, e.g., Ga. Const. of 1868, Art. VI, § 1 (mandating

that public education “be forever free to all Children

of the State”).

The phrase “open to all” traces its origins to a proposed amendment to the Reconstruction Act of 1867,

introduced by Senator Charles Sumner, which would

have required readmitted states “to establish and sustain a system of public schools open to all, without distinction of race or color.” See Cong. Globe, 40th Cong.,

1st Sess. 165 (1867) (statement of Sen. Sumner).

While this amendment failed by a narrow margin,

Sumner’s proposed language “would make its way

into all of the education clauses in the newly readmitted states’ constitutions.” Derek W. Black, The Constitutional Compromise to Guarantee Education, 70

Stan. L. Rev. 735, 780 (2018). During Reconstruction

Era state constitutional conventions, “[v]oting and education held [a] unique position because of their centrality to a republican form of government itself.”

Derek W. Black, The Fundamental Right to Education, 94 Notre Dame L. Rev. 1059, 1090–1091 (2019).

As a result of this focus on public education, nationwide school enrollment increased quickly after the

Civil War. See id. at 1094; William C. Sonnenberg, Elementary and Secondary Education, in Nat’l Ctr. for

Educ. Stat., U.S. Dep’t of Educ., 120 Years of American Education: A Statistical Portrait 36 tbl. 9 (Thomas

D. Snyder ed., 1993).

Public education grew in the nineteenth century

because private schooling had proven to be incapable

of providing a system of free education open to all. See

Johann N. Neem, Democracy’s Schools: The Rise of

Public Education in America 67 (2017) (Neem). In

some places, private charity schools offered free education “explicitly for the poor,” but “traditional views”

dictated that “[s]chooling should not be free for those

able to pay for it.” See Kaestle 60, 149. Meanwhile, the

affluent sent their children to “expensive and exclusive” independent pay schools. Id. at 60. Assessing

this class-segregated education system, lawmakers

across the country concluded that “free public education in common schools was vital.” Neem 67. In the

words of North Carolina state senator Archibald Murphey, provision of universal education “require[d] a

system of public education” because “private effort”

had failed to accomplish that goal. Ibid. (emphasis

added). Senator Murphey, like the Reconstruction Era

state-constitution framers, grounded the importance

of universal education in the “virtues” that uphold “a

republic.” See ibid. Thus, education that is free and

open to all students is a traditionally exclusive public

function both in Oklahoma and nationwide.

In arguing otherwise, petitioners point to schoolvoucher programs. Board Br. 34; St. Isidore Br. 42.

But the very purpose of these programs is to help parents pay “tuition and fees at a private school.” Okla.

Stat. tit. 70, § 28-101(A)(6) (emphasis added); see also

id. § 13-101.2(J)(3). For example, Oklahoma offers a

tax credit to reimburse private-school tuition payments. Id. § 28-101(A)(6). Schools that take part in

this program are not free—the amount of the tax

credit depends on parental income and does not guarantee full tuition coverage. See id. § 28-101(C)(1);

Board Br. 34. Nor are the schools open to all students;

instead, they can maintain discriminatory admission

policies (see id. §§ 28-100 et seq.), and many do (see,

e.g., Grace and Truth Christian Acad., Application,

https://perma.cc/U28Z-RNXK). The longstanding tradition of government being the exclusive provider of

education that is free and open to all thus continues

in the present day.

Petitioners also contend that the function the

Court should analyze should just be “education,” not

education that is free and open to all, and they point

out that the former is not a traditionally exclusive

public function. See Board Br. 32–33; St. Isidore Br.

41–43. But this Court’s public-function cases demonstrate that the conduct at issue must be identified

with specificity instead of being defined too broadly.

For example, although the government does not conduct elections for private offices, such as positions on

corporate boards, running elections for public office is

a quintessential example of a traditionally exclusive

public function. See Halleck, 587 U.S. at 809–810 (collecting cases). Similarly, although both private and

public parks exist, trustees of public parks are considered state actors because operating a public park is a

function “like [running] a fire department or police department that traditionally serves the community.”

See Evans, 382 U.S. at 302. So too is education that is

“free and open to all students” (Okla. Stat. tit. 70, § 3136(A)(9)).

2. St. Isidore is a state actor because Oklahoma has delegated one of its constitutional obligations to the school.

Even if the provision of education that is free and

open to all were not a traditionally exclusive governmental function, “this Court has recognized that a private entity may * * * be deemed a state actor when

the government has outsourced one of its constitutional obligations to [the] entity.” Halleck, 587 U.S. at

810 n.1. For example, in West, 487 U.S. at 56, the

Court held that a physician who contracted with the

state to provide medical services to incarcerated individuals was a state actor even though he was not a

state employee, because the state had “delegated” to

the doctor “its constitutional duty to provide adequate

medical treatment to those in its custody.”

Several provisions of the Oklahoma Constitution

obligate the state to provide free education that is

open to all. See Okla. Const. Art. I, § 5; Art. XI, §§ 2

and 3; Art. XIII, § 1. Oklahoma virtual charter schools

are statutorily created to perform this constitutionally

mandated state duty. See Okla. Stat. tit. 70, § 3136(A)(9). Thus, they are state actors.

Petitioners argue that the state did not delegate

all responsibility for public education for the entire

state to St. Isidore. Board Br. 35–36; St. Isidore Br.

45. But the state in West did not delegate

responsibility for all medical care in prisons across the

state to a single doctor. Indeed, the state prison at issue employed both a “full-time staff physician” and

contract doctors such as the respondent there. 487

U.S. at 44. A partial delegation of a constitutional

duty is a delegation all the same.

Petitioners also try to distinguish West by pointing out that the incarcerated individual there had no

choice but to “rely on prison authorities to treat his

medical needs.” Board Br. 36 (quoting West, 487 U.S.

at 54); see also St. Isidore Br. 45. But the Court in

West discussed this lack of choice only to explain why

a constitutional duty existed there notwithstanding

that there is no recognized, freestanding right to

healthcare under the Constitution. See 487 U.S. at 54

(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)); see

also Charles Pablico-Fernandez, Note, Born to Die:

Finding the Right to Healthcare in the History and

Tradition of the Bill of Rights Amendments, 57 Loy.

L.A. L. Rev. 791, 816 (2024). Here, Oklahoma children

enjoy an express right to access public education that

is free and open to all. See Okla. Const. Art. I, § 5; id.

Art. XIII, § 1. Oklahoma’s duty to make such education available is not dependent on context.

II. Because St. Isidore is a governmental entity

and a state actor, it may not assert a freeexercise challenge to state law that governs

the school.

Because Oklahoma virtual charter schools are

governmental entities and state actors, they have no

right under the Free Exercise Clause to present programming that state constitutional provisions or statutes prohibit. Oklahoma virtual charter schools are

created by state law and through charters granted by

the Charter Board—a governmental entity to which

the schools are subordinate. See Okla. Stat. tit. 70, §

3-132.1(A). “[S]ubordinate unit[s] of government * * *

‘ha[ve] no privileges or immunities under the federal

constitution which [they] may invoke in opposition to

the will of [their] creator.’” Ysursa v. Pocatello Educ.

Ass’n, 555 U.S. 353, 363 (2009) (quoting Williams v.

Mayor of Baltimore, 289 U.S. 36, 40 (1933)). As a subordinate governmental unit, St. Isidore is precluded

from challenging Oklahoma law on free-exercise

grounds under the U.S. Constitution.

In addition, when a state actor speaks in the

course of exercising official duties, the speech is government speech. See, e.g., Garcetti v. Ceballos, 547

U.S. 410, 421 (2006) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for

First Amendment purposes[.]”). An entity delivering

government speech has no right under the First

Amendment to present speech that the law prohibits.

See, e.g., Pleasant Grove City v. Summum, 555 U.S.

460, 468 (2009) (“[G]overnment speech must comport

with the Establishment Clause.”); Rust v. Sullivan,

500 U.S. 173, 198–199 (1991) (holding that medical

staff did not have free-speech right to provide abortion

counseling and referral in violation of Title X rules

when carrying out duties of government-funded program).

III. Even if St. Isidore could assert free-exercise

rights, Oklahoma’s prohibition on religious

education in public schools satisfies any

level of scrutiny.

Even if St. Isidore could assert free-exercise

rights, they would not override Oklahoma’s

prohibition on the teaching of a religious curriculum

by a public charter school, because the prohibition is

necessary to comply with the federal Establishment

Clause. Adherence to the federal Establishment

Clause is a compelling governmental interest that satisfies any level of scrutiny under other provisions of

the First Amendment. See Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 761–762 (1995)

(plurality opinion of Scalia, J., joined by Rehnquist,

C.J., Kennedy, J., and Thomas, J.); accord id. at 783

(O’Connor, J., concurring in part and concurring in

the judgment, joined by two other Justices); see also

Lee v. Weisman, 505 U.S. 577, 587 (1992).

The creation of St. Isidore as an Oklahoma charter school violates the Establishment Clause in two

respects. First, the Establishment Clause prohibits a

state agency from establishing a state religious institution, fusing governmental and religious functions,

and delegating governmental authority to a religious

entity. Second, the Establishment Clause bars state

actors from inculcating a religion in students or otherwise promoting a religion to them.

This Court derived these Establishment Clause

rules through “analysis focused on original meaning

and history” that “‘faithfully reflec[ted] the understanding of the Founding Fathers.’” See Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 536 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 577

(2014)). The “meaning and scope of the First Amendment” are best understood in light “of its history and

the evils it was designed forever to suppress.” Everson

v. Board of Educ., 330 U.S. 1, 14–15 (1947). As this

Court has repeatedly observed, the Founders wrote

the First Amendment’s Religion Clauses to avoid

repeating an ugly history of persecution of religious

minorities that occurred both in Europe and in the colonies. See, e.g., id. at 8–11; School Dist. of Abington

Twp. v. Schempp, 374 U.S. 203, 214 (1963). And the

Founders’ vision of a country free from religious persecution coincided with their embrace of the Enlightenment ideal that religion is a matter of personal conscience, not to be influenced or directed by the government. See Steven J. Heyman, The Light of Nature:

John Locke, Natural Rights, and the Origins of American Religious Liberty, 101 Marq. L. Rev. 705, 748–

749 (2018). “The Establishment Clause thus stands as

an expression of principle on the part of the Founders

of our Constitution that religion is too personal, too

sacred, too holy, to permit its ‘unhallowed perversion’

by a civil magistrate.” Engel v. Vitale, 370 U.S. 421,

431–432 (1962) (quoting James Madison, Memorial

and Remonstrance against Religious Assessments

(1785), https://bit.ly/2YwACub).

A. The Establishment Clause forbids the

creation of religious–governmental institutions.

State-established churches were a driving force of

religious oppression in seventeenth- and eighteenthcentury Europe and in the American colonies. Engel,

370 U.S. at 431–433. The Founders “fervently wished

to stamp out” that practice, and therefore “[t]he ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church.” Everson, 330

U.S. at 8, 15–16. Similarly, based on the “the teachings of history,” the Establishment Clause prohibits

“a fusion of governmental and religious functions or a

concert or dependency of one upon the other to the end

that official support of the State or Federal Government would be placed behind the tenets of one or of all

orthodoxies.” Schempp, 374 U.S. at 222.

Thus, this Court has held that a state may not run

a “joint public-school religious-group program.” Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203,

205 (1948). Nor may a state create a special school district specifically for one religious sect. See Board of

Educ. v. Grumet, 512 U.S. 687, 690 (1994); see also

Evans, 382 U.S. at 300 (“[A] State may not segregate

public schools so as to exclude one or more religious

groups.”). “The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with

religious institutions” (Larkin v. Grendel’s Den, Inc.,

459 U.S. 116, 127 (1982)), particularly where such

powers are exercised for “‘explicitly religious’ reasons”

(id. at 130 (Rehnquist, J. dissenting) (quoting id. at

125 (majority opinion)).

Therefore, Oklahoma may not create a religious

governmental entity or delegate the critical governmental function of providing free, open-to-all education to a religious entity that will impose religious dictates in fulfilling that function. Uniting “civic and religious authority” in this way is “a violation of ‘the core

rationale underlying the Establishment Clause.’”

Grumet, 512 U.S. at 697 (plurality opinion) (quoting

Larkin, 459 U.S. at 126).

The United States has a “long tradition” of religion flourishing in “the home, the church and the inviolable citadel of the individual heart and mind,” not

predominating in the public school or any other governmental institution. See Schempp, 374 U.S. at 226.

Oklahoma’s establishment of a religious public school

flies in the face of that tradition.

B. The Establishment Clause forbids public

schools from inculcating a religion in

students.

St. Isidore’s religious curriculum is unconstitutional because the “[g]overnment may not * * * undertake religious instruction nor blend secular and

sectarian education.” Zorach v. Clauson, 343 U.S. 306,

314 (1952). Thomas Jefferson and James Madison—

whose views on religious freedom “came to be incorporated * * * in the Federal Constitution” (Schempp,

374 U.S. at 214)—articulated the basis for this principle. Jefferson expressed opposition to governmental

action concerning religion that could result in “some

degree of proscription perhaps in public opinion.” Letter from Thomas Jefferson to Samuel Miller (Jan. 23,

1808), https://bit.ly/31BeShI. He explained that official action amounting to “recommendation” of prayer,

for example—even without the backing of legal

force—was no “less a law of conduct for those to whom

it is directed.” Ibid. Similarly, Madison wrote that

even a practice of governmental “recommendations

only” concerning religion “naturally terminates in a

conformity to the creed of the major[ity] and of a single

sect, if amounting to a majority.” James Madison, Detached Memoranda (1820), https://bit.ly/3HGs2e7.

The Founders’ broad opposition to religious establishment, their respect for religious diversity, and

their veneration of the personal religious conscience

demonstrate that American tradition does not permit

inculcation of any religion in public schools. “The design of the Constitution is that preservation and

transmission of religious beliefs and worship is a

responsibility and a choice committed to the private

sphere, which itself is promised freedom to pursue

that mission.” Lee, 505 U.S. at 589.

Given the role of public schools in American society, use of those schools to instill a particular faith in

students is especially egregious. As Justice Frankfurter explained nearly seventy years ago, “[t]he public

school is at once the symbol of our democracy and the

most pervasive means for promoting our common destiny.” McCollum, 333 U.S. at 231 (Frankfurter, J.,

concurring). For that reason, “[i]n no activity of the

State is it more vital to keep out divisive forces” such

as those invited by “the commingling of sectarian with

secular instruction.” Id. at 212, 231 (Frankfurter, J.,

concurring). Thus, this Court has ruled that the “state

cannot consistently with the [Establishment Clause]

utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” Id. at 211 (majority opinion).

This Court has repeatedly applied these principles to prohibit religious indoctrination in public

schools. See Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 310–313 (2000); Lee, 505 U.S. at 598; Kennedy, 597 U.S. at 541–542 (citing Santa Fe and Lee

with approval); Edwards v. Aguillard, 482 U.S. 578,

596–597 (1987); Wallace v. Jaffree, 472 U.S. 38, 61

(1985); Epperson v. Arkansas, 393 U.S. 97, 109 (1968);

Schempp, 374 U.S. at 205; Engel, 370 U.S. at 424;

McCollum, 333 U.S. at 211–212. As a public school

that inculcates its students in a particular religion—

including through mandatory theology classes and religious services, as well as the integration of religious

doctrine in otherwise secular subjects—St. Isidore

would flout these long-cherished constitutional

protections. See J.A. 18–19; Pet. App. 7a; Pet. 8; St.

Isidore of Seville Catholic Virtual School, Parent &

Student Handbook 2024–2025 27 (Mar. 18, 2024),

https://perma.cc/NHP2-D5Q6.

C. Carson, Espinoza, and Trinity Lutheran

are inapplicable.

Because permitting St. Isidore to operate as a

public charter school would violate the Establishment

Clause, the three principal cases on which petitioners

rely for their free-exercise argument—Carson v.

Makin, 596 U.S. 767 (2022); Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020); and Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449 (2017)—are inapplicable. In all three of those

cases, the state involvement with the religious schools

at issue would not have violated the Establishment

Clause. All of those schools were private schools, not

public ones. And none of them was a governmental entity or other state actor.

CONCLUSION

The judgment of the Oklahoma Supreme Court

should be affirmed.

Respectfully submitted.

DANIEL MACH

HEATHER L. WEAVER

American Civil Liberties

Union Foundation

915 15th Street, NW

Suite 600

Washington, DC 20005

(202) 675-2330

dmach@aclu.org

hweaver@aclu.org

CECILLIA D. WANG

American Civil Liberties

Union Foundation

425 California Street

Suite 700

San Francisco, CA 94104

(415) 343-0775

cwang@aclu.org

LOUISE MELLING

American Civil Liberties

Union Foundation

125 Broad Street

New York, NY 10004

(212) 549-2500

lmelling@aclu.org

PATRICK ELLIOTT

Freedom From Religion

Foundation

P.O. Box 750

Madison, WI 53701

(608) 256-8900

pelliott@ffrf.org

ALEX J. LUCHENITSER*

*Counsel of Record

LUKE ANDERSON

Americans United for

Separation of

Church and State

1310 L Street NW

Suite 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

anderson@au.org

ROBERT KIM

JESSICA LEVIN

WENDY LECKER

Education Law Center

60 Park Place

Suite 300

Newark, NJ 07102

(973) 624-1815

rkim@edlawcenter.org

jlevin@edlawcenter.org

wlecker@edlawcenter

.org

BENJAMIN H. ODOM

JOHN H. SPARKS

MICHAEL W. RIDGEWAY

LISA M. MASON

Odom & Sparks, PLLC

2500 McGee Drive

Suite 140

Norman, OK 73072

(405) 701-1863

odomb@odomsparks.com

sparksj@odomsparks.com

ridgewaym@odomsparks.

com

masonl@odomsparks.com

J. DOUGLAS MANN

1116 E. 21st Place

Tulsa, OK 74114

(918) 742-6188

douglasmann66

@icloud.com

Counsel for Amici Curiae

APRIL 2025

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.