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

NOS. 24-394 and 24-396

In the

Supreme Court of the United States

________________________________

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD,

ET AL.,

Petitioners,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

________________

Respondent.

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

________________

Respondent.

On Writs of Certiorari to the

Supreme Court of Oklahoma

________________

BRIEF OF COLORADO AND 17 STATES AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

________________

PHILIP J. WEISER

Attorney General

SHANNON STEVENSON

Solicitor General

Counsel of Record

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

Shannon.Stevenson@coag.gov

(720) 508-6000

RUSSELL D. JOHNSON

Deputy Solicitor General

JOE PETERS

Senior Assistant Attorney

General

ABBY CHESTNUT

Assistant Solicitor General

DAYNA ZOLLE HAUSER

Assistant Solicitor General

Counsel for the State of Colorado

TABLE OF CONTENTS

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

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

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

SUMMARY OF THE ARGUMENT ........................... 2

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

I.

Charter schools are public, governmental

entities. ................................................................ 4

A. The core aspects of charter schools

confirm their public nature. ......................... 5

B. Charter schools’ incorporation and

charter contracts confirm their public

status. ......................................................... 10

C. Petitioners

and

their

amici

mischaracterize the history of charter

schools. ........................................................ 14

D. Even if private entities could become

charter schools, such schools would be

pervasively entwined with the State. ........ 18

II. States have the discretion to create

participatory public institutions. ...................... 21

A. States are free to structure their

governmental entities as they see fit......... 21

B. States’ discretion includes creating

public school choices, private choices, or

both—as they see fit. .................................. 24

ii

III. A broad ruling would disrupt charter schools

across the country and likely force thousands

of schools to close. .............................................. 26

A. States’ education funding policies rely on

charter schools’ constitutional status as

public schools. ............................................. 27

B. Private markets have invested billions in

reliance on charter schools’ public status.

..................................................................... 30

C. The harms alleged by Petitioners and

their amici are fictional. ............................. 32

CONCLUSION ......................................................... 34

APPENDIX – LIST OF STATE STATUTES ........... 1a

iii

TABLE OF AUTHORITIES

Cases

Acad. of Charter Sch. v. Adams Cnty. Sch.

Dist. No. 12, 32 P.3d 456 (Colo. 2001) ............. 11, 13

Apple Inc. v. Pepper, 587 U.S. 273 (2019) ................ 26

Araujo v. Bryant, 283 So. 3d 73 (Miss. 2019) .......... 28

Bd. of Educ. of Sch. Dist. No. 1 v. Booth, 984

P.2d 639 (Colo. 1999) ............................................. 12

Biden v. Nebraska, 600 U.S. 477 (2023) .................. 23

Blum v. Yaretsky, 457 U.S. 991 (1982) .............. 18, 19

Brammer-Hoelter v. Twin Peaks Charter

Acad., 602 F.3d 1175 (10th Cir. 2010) .................. 34

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288 (2001) ................. 18, 19

Carson v. Makin, 596 U.S. 767 (2022) ........... 8, 14, 24

Colo. State Bd. of Educ. v. Brannberg, 525

P.3d 290 (Colo. 2023) ............................................. 18

Commonwealth ex rel. Cameron v. Johnson,

658 S.W.3d 25 (Ky. 2022) ...................................... 29

Council for Better Educ., Inc. v. Glass,

No. 23-CI-0020, 2023 WL 11987862 (Ky.

Cir. Ct. Dec. 11, 2023)............................................ 29

Council of Organizations & Others for Educ.

About Parochiaid, Inc. v. Governor, 566

N.W.2d 208 (Mich. 1997) ................................. 27, 28

Dep’t of Transp. v. Ass’n of Am. R.Rs., 575

U.S. 43 (2015)........................................... 5, 7, 20, 26

iv

Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 21

Eidson v. S.C. Dep’t of Educ., 906 S.E.2d 345

(S.C. 2024) .............................................................. 30

El Centro De La Raza v. State, 428 P.3d 1143

(Wash. 2018) .......................................................... 29

Everson v. Bd of Educ. of Ewing, 330 U.S. 1

(1947) ...................................................................... 13

First Nat’l City Bank v. Banco Para El

Comercio Exterior de Cuba, 462 U.S. 611

(1983) ...................................................................... 10

Goss v. Lopez, 419 U.S. 565 (1975) ............................ 8

Holt Civic Club v. City of Tuscaloosa, 439

U.S. 60 (1978)......................................................... 23

Iberville Par. Sch. Bd. v. La. State Bd. of

Elementary & Secondary Educ., 248 So. 3d

299 (La. 2018) ........................................................ 28

Larson v. Valente, 456 U.S. 228 (1982) .................... 14

League of Women Voters of Wash. v. State,

355 P.3d 1131 (Wash. 2015) .................................. 29

Lebron v. Nat’l R.R. Passenger Corp., 513

U.S. 374 (1995)............................................. 4, 10, 26

Maine v. Taylor, 477 U.S. 131 (1986) ........................ 2

Mamas de DPS, LLC v. Denver Public Sch.

Dist. No. 1, Case No. 24CV33951 (Denver

Dist. Ct.) ................................................................. 30

N.C. State Bd. of Dental Exam’rs v. F.T.C.,

574 U.S. 494 (2015) ................................................ 22

v

Oliver v. Hofmeister, 368 P.3d 1270 (Okla.

2016) ....................................................................... 25

Our Lady of Guadalupe Sch. v. MorrisseyBerru, 591 U.S. 732 (2020) .................................... 14

Papasan v. Allain, 478 U.S. 265 (1986) ................... 27

Rendell–Baker v. Kohn, 457 U.S. 830 (1982) ........... 18

Sailors v. Bd. of Educ. of Kent Cnty., 387

U.S. 105 (1967)................................................. 21, 23

Schuette v. Coal. to Defend Affirmative

Action, 572 U.S. 291 (2014) ................................... 23

State ex rel. Ohio Cong. of Parents &

Teachers v. State Bd. of Educ., 857 N.E.2d

1148 (Ohio 2006) .................................................... 28

Wisc. Pub. Intervenor v. Mortier, 501 U.S.

597 (1991) ............................................................... 23

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................. 21

Statutes and Session Laws

105 Ill. Comp. Stat. 5/2-3.25g (2024) ......................... 9

105 Ill. Comp. Stat. 5/27A-2(a)(2) (2024) ................... 3

105 Ill. Comp. Stat. 5/27A-2(c) (2024) ...................... 17

1991 Minn. Laws 1124 ............................................. 16

1992 Cal. Stat. 3756 ................................................. 17

1993 Colo. Sess. Laws 1051...................................... 17

1997 Colo. Sess. Laws 400........................................ 11

20 U.S.C. § 7221i(2)(E) (2024) .................................... 1

2017 Ky. Acts 758 ..................................................... 29

vi

2022 Ky. Acts 1982 ................................................... 29

Act of Feb. 22, 1889, ch. 180, 25 Stat. 676 ............... 28

Ala. Code § 16-6F-9(a) (2024) ................................... 17

Ala. Code § 16-6F-9(c) (2024) ................................... 17

Cal. Educ. Code §§ 33050–33054 (2024) .................... 9

Charter School Expansion Act of 1998, Pub.

L. 105-278, sec. 3, § 10306, 112 Stat. 2682 ............. 2

Colo. Rev. Stat. § 7-123-102(2) (2024)........................ 6

Colo. Rev. Stat. § 12-115-104 (2024) ........................ 22

Colo. Rev. Stat. §§ 22-5-101 to -122 (2024) .............. 22

Colo. Rev. Stat. § 22-11-103(1) (2024)........................ 8

Colo. Rev. Stat. § 22-11-103(28) (2024)...................... 8

Colo. Rev. Stat. § 22-2-117 (2024) .............................. 8

Colo. Rev. Stat. § 22-30.5-102 (2024) ......................... 7

Colo. Rev. Stat. § 22-30.5-102(3) (2024)............... 5, 24

Colo. Rev. Stat. § 22-30.5-104(1) (2024)..................... 1

Colo. Rev. Stat. § 22-30.5-104(2)(b) (2024) ................ 9

Colo. Rev. Stat. § 22-30.5-104(3) (2024)................. 8, 9

Colo. Rev. Stat. § 22-30.5-104(4)(a) (2024) .......... 6, 11

Colo. Rev. Stat. § 22-30.5-104(5) (2024)..................... 8

Colo. Rev. Stat. § 22-30.5-104(6) (2024)..................... 8

Colo. Rev. Stat. § 22-30.5-104(6)(b)(III)

(2024) ........................................................................ 8

Colo. Rev. Stat. § 22-30.5-104(7)(a) (2024) .............. 10

Colo. Rev. Stat. § 22-30.5-104(7.5) (2024)................ 31

vii

Colo. Rev. Stat. § 22-30.5-104(8) (2024)..................... 8

Colo. Rev. Stat. § 22-30.5-104.9 (2024) ...................... 6

Colo. Rev. Stat. § 22-30.5-104.9(2) (2024).................. 9

Colo. Rev. Stat. § 22-30.5-104.9(2)(b) (2024) ............. 9

Colo. Rev. Stat. § 22-30.5-104.9(4) (2024).................. 7

Colo. Rev. Stat. § 22-30.5-104.9(5) (2024)................ 11

Colo. Rev. Stat. § 22-30.5-105 (2024) ......................... 6

Colo. Rev. Stat. § 22-30.5-105(1)(a) (2024) .............. 12

Colo. Rev. Stat. § 22-30.5-106 (2024) ......................... 6

Colo. Rev. Stat. § 22-30.5-106(1)(h) (2024) ................ 7

Colo. Rev. Stat. § 22-30.5-106(1)(p) (2024) ................ 8

Colo. Rev. Stat. § 22-30.5-106(2) (2024)................... 12

Colo. Rev. Stat. § 22-30.5-106(3) (2024)..................... 5

Colo. Rev. Stat. § 22-30.5-107 (2024) ......................... 6

Colo. Rev. Stat. § 22-30.5-107.5(4) (2024)................ 13

Colo. Rev. Stat. § 22-30.5-108(3)(d) (2024) .............. 13

Colo. Rev. Stat. § 22-30.5-110(1)(a) (2024) .............. 11

Colo. Rev. Stat. § 22-30.5-110(3)(b) (2024) .............. 12

Colo. Rev. Stat. § 22-30.5-110(3)(d) (2024) ................ 8

Colo. Rev. Stat. § 22-30.5-111(3) (2024)..................... 6

Colo. Rev. Stat. § 22-30.5-111(3) (2024)..................... 9

Colo. Rev. Stat. § 22-30.5-112(7) (2024)..................... 8

Colo. Rev. Stat. § 22-30.5-118(10) (2024)................... 6

Colo. Rev. Stat. § 22-30.5-119(4) (2024)..................... 6

viii

Colo. Rev. Stat. § 22-30.5-404 (2024) ....................... 31

Colo. Rev. Stat. § 22-30.5-404(6) (2024)..................... 6

Colo. Rev. Stat. § 22-30.5-405(4) (2024)..................... 6

Colo. Rev. Stat. § 22-30.5-512 (2024) ......................... 6

Colo. Rev. Stat. § 22-30.5-513(6)(b) (2024) ................ 6

Colo. Rev. Stat. § 22-30.5-703 (2024) ......................... 7

Colo. Rev. Stat. § 22-30.5-703(8)(b) (2024) ................ 7

Colo. Rev. Stat. § 22-30.5-704 (2024) ......................... 7

Colo. Rev. Stat. § 22-36-101 (2024) ............................ 9

Colo. Rev. Stat. § 22-61-103 (2024) ............................ 6

Colo. Rev. Stat. § 22-7-1003(9) (2024)........................ 8

Colo. Rev. Stat. § 24-10-106.3 (2024) ......................... 9

Colo. Rev. Stat. § 24-77-102(15) (2024).................... 22

Colo. Rev. Stat. § 29-1-203 (2024) ............................ 22

Colo. Rev. Stat. § 29-1-203.5 (2024) ......................... 22

Del. Code tit. 14, § 506(a) (2024) .............................. 17

Educational Deregulation Act, Okla. Stat.

tit. 70, §§ 3-124 to 3-129.11 (2011) .......................... 9

Every Student Succeeds Act, Pub. L. No. 11495, sec. 4301, §§ 4301–4305, 129 Stat. 1802

(2015) ........................................................................ 2

Haw. Rev. Stat. § 302D-1 (2024) ................................ 1

Improving America’s Schools Act of 1994,

Pub. L. No. 103-382, sec. 101, § 10306, 108

Stat. 3518 ................................................................. 1

La. Stat. § 17:3991(E) (2024) ................................... 17

ix

Me. Stat. tit. 20-A, § 8 (2024) ..................................... 9

Me. Stat. tit. 20-A, § 2402 (2024) ............................. 17

No Child Left Behind Act of 2001, Pub. L.

No. 107-110, sec. 501, § 5210, 115 Stat.

1425 (2002) ............................................................... 2

Okla. Stat. tit. 68, § 2357.206 (2024) ....................... 25

Okla. Stat. tit. 70, § 3-131 (2024) ............................. 24

Okla. Stat. tit. 70, § 3-132.2(C)(1) (2024) ................ 24

Okla. Stat. tit. 70, § 3-134(C) (2024) .................. 12, 21

Okla. Stat. tit. 70, § 3-136(A)(2) (2024) ..................... 1

Okla. Stat. tit. 70, § 3-136(A)(5)–(17) (2024) ........... 25

Okla. Stat. tit. 70, § 3-136(A)(18) (2024) ................. 25

Okla. Stat. tit. 70, § 3-136(G) (2024)........................ 25

Okla. Stat. tit. 70, § 3-137 (2024) ............................. 25

Okla. Stat. tit. 70, § 3-140 (2024) ............................. 25

Okla. Stat. tit. 70, § 3-153 (2024) ............................. 25

Okla. Stat. tit. 70, § 13-101.1 (2024) ........................ 25

Okla. Stat. tit. 70, § 13-101.2 (2024) ........................ 25

Okla. Stat. tit. 70, § 28-100 to -103 (2024) .............. 25

Oklahoma Enabling Act, ch. 3335, 34 Stat.

267 (June 16, 1906) ................................................ 27

S.C. Code § 59-40-20 (2024) ..................................... 20

S.C. Code § 59-40-30 (2024) ..................................... 20

S.C. Code § 59-40-40(2)(a) (2024) ............................. 19

S.C. Code § 59-40-40(2)(c) (2024) ............................. 19

x

S.C. Code § 59-40-50(B)(2) (2024) ............................ 19

S.C. Code § 59-40-50(B)(3) (2024) ............................ 19

S.C. Code § 59-40-50(B)(7) (2024) ............................ 19

S.C. Code § 59-40-50(B)(8) (2024) ............................ 19

S.C. Code § 59-40-50(B)(9) (2024) ............................ 19

S.C. Code § 59-40-50(B)(10) (2024) .......................... 19

S.C. Code § 59-40-50(B)(11) (2024) .......................... 19

S.C. Code § 59-40-60 (2024) ..................................... 19

S.C. Code § 59-40-75(C) (2024) ................................ 19

S.C. Code § 59-40-110 (2024) ................................... 19

S.C. Code § 59-40-120 (2024) ................................... 19

S.C. Code § 59-40-125 (2024) ................................... 19

S.C. Code § 59-40-140 (2024) ................................... 19

S.C. Code § 59-40-155 (2024) ................................... 19

S.C. Code § 59-40-210 (2024) ................................... 19

Utah Code § 53G-5-404 (2024) ................................. 17

Other Authorities

Albert Shanker, President, Am. Fed’n of

Teachers, National Press Club Speech

(Mar. 31, 1988) ....................................................... 15

Alyssa Rafa et al., Educ. Comm’n of the

States, 50-State Comparison: Charter

School Policies,

https://www.ecs.org/charter-school-policies/

(last visited Apr. 3, 2025) ...................................... 17

xi

Ansley T. Erickson and Ernest Morrell (eds.),

Educating Harlem: A Century of Schooling

and Resistance in a Black Community

(2018) ...................................................................... 14

Charter, Black’s Law Dictionary (12th ed.

2024) ....................................................................... 11

Cong. Budget Off., Budget Options:

Eliminate the Tax Exemption for New

Qualified Private Activity Bonds (Dec. 12,

2024) https://www.cbo.gov/budgetoptions/60944 ......................................................... 32

Contract, Black’s Law Dictionary (12th ed.

2024) ....................................................................... 11

Derrick Bell, Silent Covenants: Brown v.

Board of Education and the Unfulfilled

Hopes for Racial Reform (2004)............................. 14

EdChoice, School Choice in Michigan,

https://www.edchoice.org/schoolchoice/state/michigan/ (last visited Apr. 3,

2025) ....................................................................... 27

Electronic Municipal Market Access,

https://emma.msrb.org/IssueView/Details/E

S397606 (last visited Apr. 3, 2025) ....................... 32

Electronic Municipal Market Access,

https://emma.msrb.org/IssueView/Details/S

S401108 (last visited Apr. 3, 2025) ....................... 32

Ember Reichgott Junge, Zero Chance of

Passage: The Pioneering Charter School

Story (2012) ............................................................ 15

xii

Jeffrey S. Sutton, Who Decides? States as

Laboratories of Constitutional

Experimentation (2022) ......................................... 22

John E. Chubb & Terry M. Moe, America’s

Public Schools: Choice Is a Panacea,

Brookings Rev., Summer 1990 .............................. 16

Kenneth B. Clark, Alternative Public School

Systems, 38 HARV. EDUC. REV. 100 (1968) ............ 15

Matthew Ladner, In Defense of Education’s

“Wild West,” Education Next (Jan. 25,

2018), https://www.educationnext.org/indefense-educations-wild-west-charterschools-thrive-four-corners-states/ ........................ 33

Miriam Seifter, Understanding State Agency

Independence, 117 MICH. L. REV. 1537

(2018) ...................................................................... 22

Northwest Ordinance of 1787, Confederation

Cong., § 14, art. 3 ................................................... 27

Ray Budde, Education by Charter:

Restructuring School Districts (1974/1988) .......... 15

Sara Sorbello, Local Initiatives Support

Corporation, Charter School Bond Issuance

by State, https://assets.foleon.com/eucentral-1/de-uploads7e3kk3/48388/charter_school_bond_issuanc

e_volume_4_1312024.41cd689c8da3.pdf............... 31

U.S. Dep’t of Educ. Charter School Resource

Center, Facilities Financing Opportunities

(Credit Enhancement),

https://charterschoolcenter.ed.gov/funding/f

xiii

acilities-financing-opportunities (last

visited Apr. 3, 2025) ............................................... 31

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

Statistics,

https://nces.ed.gov/fastfacts/display.asp?id=

30 (last visited Apr. 3, 2025) ................................... 3

Rules

Colo. R. Civ. P. 106(a)(2) .......................................... 13

INTEREST OF AMICI

Amici are the State of Colorado, 16 other States—

Arizona, California, Connecticut, Delaware, Illinois,

Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon,

Rhode Island, and Washington—and the District of

Columbia, all of whom (like Oklahoma) have statutes

requiring charter schools to be nonsectarian. See, e.g.,

Okla. Stat. tit. 70, § 3-136(A)(2) (“A charter school

shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.”); Colo. Rev. Stat. § 22-30.5-104(1) (“A charter

school shall be a public, nonsectarian, nonreligious,

non-home-based school which operates within a public

school district.”).

In all, forty-four States and the District of Columbia have enacted such laws as part of their charter

schools acts, see App., while two more States impose

the same nonsectarian requirement on charter schools

through their general school laws, see Haw. Rev. Stat.

§ 302D-1; Tex. Const. art. I, § 7. 1 The Federal government, too, expressly requires charter schools to be

nonsectarian. 20 U.S.C. § 7221i(2)(E). These laws exist not because every State and a full generation of

Congresses 2 were hostile to religion but because charter schools are bound by the First Amendment—and

1 Four States do not have charter schools. No State—not one—

permits sectarian charter schools.

2 Congress adopted its law in 1994 and has reaffirmed it three

times since. See Improving America’s Schools Act of 1994, Pub.

L. No. 103-382, sec. 101, § 10306, 108 Stat. 3518, 3829–30 (enacting Charter Schools Program and defining charter schools as

2

granting charters to create religious schools would violate the Establishment Clause.

Amici have an interest in enforcing the laws duly

enacted by their elected representatives. See Maine v.

Taylor, 477 U.S. 131, 137 (1986) (“[A] State clearly has

a legitimate interest in the continued enforceability of

its own statutes.”). Amici thus have an interest in preserving charter schools as public, governmental entities that bring citizens into the governance of their

public schools.

In addition, Amici are concerned about the potentially massive disruption from holding that charter

schools are private institutions. Because many States

have tight constitutional restrictions that prevent

public funding of private schools, and because bond

markets have invested tens of billions of dollars in reliance on charter schools’ public status, such a holding

could destroy the country’s extensive and popular

charter school systems.

SUMMARY OF THE ARGUMENT

Charter schools are not private entities that agree

to provide education on the State’s behalf. They are

public schools, in which the State has placed control

over day-to-day operations in school-level boards to

empower the schools’ parents and teachers.

public, nonsectarian schools); Charter School Expansion Act of

1998, Pub. L. 105-278, sec. 3, § 10306, 112 Stat. 2682, 2687 (expanding program without amending definition); No Child Left

Behind Act of 2001, Pub. L. No. 107-110, sec. 501, § 5210, 115

Stat. 1425, 1798–99 (2002) (readopting definition); Every Student Succeeds Act, Pub. L. No. 114-95, sec. 4301, §§ 4301–4305,

129 Stat. 1802, 1993–2013 (2015) (readopting program without

amending definition).

3

The model is widely used. Nationwide, more than

3.5 million students attend charter schools. 3 In at

least nine States, charter schools enroll more than one

in ten students. And in many cities, charter enrollment is higher yet: over 30% of students in Kansas

City, MO, Gary, IN, and Cleveland, OH; over 40% of

students in Detroit and Flint, MI, and Washington,

DC; and (remarkably) over 90% of students in New Orleans, LA. The model’s prevalence illustrates the desire for citizen-led public schools, as embodied in the

declarations of statutes like Illinois’s: “There are educators, community members, and parents in Illinois

who can offer flexible and innovative educational techniques and programs” and who deserve “an avenue

through which to provide them within the public

school system.” 105 Ill. Comp. Stat. 5/27A-2(a)(2).

St. Isidore frames this case as if it had applied for

public aid—that is, as if it were a private entity, seeking a subsidy or other benefit offered to the public at

large. But that’s simply not so: charter schools are not

a type of subsidy, outsourcing, or public-private partnership. They are public schools in which citizens participate directly in running the school. They exist only

when the State approves a request by parents, teachers, and other school-level stakeholders to form and

operate their own public school; their boards, governance structures, and educational programs must be

approved by the State; and their assets ultimately belong to the State. And while States usually require

these schools to operate through a corporate form,

3 U.S. Dep’t of Educ., Nat’l Center for Educ. Statistics,

https://nces.ed.gov/fastfacts/display.asp?id=30 (last visited Apr.

3, 2025).

4

they do so simply because a corporate form empowers

the local stakeholders’ operational control. A charter

school is thus like an appointed board or commission

or any other public entity in which citizens themselves

engage in governing. And like any public entity, they

are bound by the Establishment Clause.

Contrary to Petitioners’ suggestion, St. Isidore is

a putative governmental entity—formed under a statute authorizing citizens to propose a charter school, to

open if (and only if) they receive the State’s approval

to operate. As a result, whatever the First Amendment

might require when State-sponsored education has

been outsourced to a private entity is irrelevant. The

question instead is whether States may create public

schools as participatory institutions—that is, governmental entities in which citizens engage directly in

governing—without those schools thereby becoming

private actors. And given the respect this Court owes

both to federalism and to the States’ longstanding responsibility for education, the answer is “yes.”

ARGUMENT

I.

Charter schools are public, governmental

entities.

In looking to this Court’s state-action cases, Petitioners continue a framing error begun in the briefing

below. The nuanced doctrine governing when private

entities will be treated as state actors is not relevant

because the proposed school is not a private entity.

Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374,

378 (1995) (finding it “unnecessary” to address stateaction doctrine where entity “is not a private entity

but Government itself”). When an entity is created and

5

controlled under the State’s authority, with its mission, operations, and even budget determined by legislative processes, it is part of the government for

constitutional purposes. See Dep’t of Transp. v. Ass’n

of Am. R.Rs., 575 U.S. 43, 50–55 (2015). Applying this

analysis here, a charter school is simply a public

school—and like any other public school, it is an arm

of the State.

A. The core aspects of charter schools confirm their public nature.

Petitioners assume that charter schools are private because, in most States, they are incorporated as

nonprofit entities. Charter Board Br., pp. 33–34; St.

Isidore Br., p. 40. But that elevates form over substance, letting the legislative label control the constitutional analysis. The reality is precisely the opposite:

the essential aspects of charter schools—including

separate incorporation—confirm their governmental

nature. Cf. Dep’t of Transp., 575 U.S. at 50–55 (rejecting legislative label based on constitutional substance).

To begin with, charter schools are created and operated under State authority, through an authorizing

statute. See id. at 51 (“It is appropriate to begin the

analysis with [the entity’s] ownership and corporate

structure.”). Colorado’s statute is illustrative: under it,

parents, teachers, and other community members can

come to their school district with a proposal for a public school. Colo. Rev. Stat. §§ 22-30.5-102(3) & -106(3).

Doing so requires a comprehensive application, a public hearing at which the school district’s community

can be heard, and a public vote by the elected school

6

board. Colo. Rev. Stat. §§ 22-30.5-106 & -107. If approved, the proposed school’s organizers adopt a corporate form and execute a charter contract detailing

their obligations. Colo. Rev. Stat. §§ 22-30.5-104(4)(a)

& -105. The State maintains ownership despite the

use of a municipal corporation: the school has no

shareholders, Colo. Rev. Stat. § 7-123-102(2), and its

assets revert directly to the government when it

closes, Colo. Rev. Stat. §§ 22-30.5-118(10), -119(4),

-404(6), -405(4) & -513(6)(b). 4 Similarly, a charter

school’s employees are public employees. See Colo.

Rev. Stat. §§ 22-30.5-111(3) & -512. Their teachers

even take the same loyalty oath as any other public

school teacher. See Colo. Rev. Stat. § 22-61-103. As

Colorado’s statute expressly explains, the separate incorporation does not change its status as a public entity for any such purpose. Colo. Rev. Stat. §§ 22-30.5104(4)(a) & -104.9. Other State’s laws, including Oklahoma’s, are materially the same on nearly every

point.

States also control the board and management of

charter schools. In Colorado, for example, charter

school board members take the same oath of office

taken by every elected and appointed public official in

4 Or sooner. The New Mexico legislature once swept charter

schools’ bank accounts to help balance the State budget. See New

Mexico Political Report, Martinez signs budget-balancing

measures

(Jan.

31,

2017),

https://nmpoliticalreport.com/2017/01/31/martinez-signs-budget-balancingmeasures/. The rule that charter schools’ assets revert to the

State (or authorizing school district) appears in nearly every

charter schools act in the country. E.g., Me. Stat. tit. 20-A,

§ 2411(8)(B); Mich. Comp. Laws § 380.507(9); Minn. Stat.

§ 124E.25, subd. 1a(c); N.Y. Educ. Law § 2851(2)(t).

7

the State. Colo. Rev. Stat. § 22-30.5-104.9(4); cf. Dep’t

of Transp., 575 U.S. at 57–58 (noting the importance

of oaths of office) (Alito, J., concurring). To be sure,

since the central purpose of charter schools is to empower local stakeholders, Colo. Rev. Stat. § 22-30.5102, the State does not appoint individuals to their

governing boards. Yet the State does pre-approve each

individual applicant’s plans for its board and for the

management that board will oversee. Colo. Rev. Stat.

§ 22-30.5-106(1)(h). And even then, in appropriate

cases the Commissioner of Education can remove or

replace the board members—or even reform the

school’s articles of incorporation and bylaws, reconstituting the very structure of the board. Colo. Rev. Stat.

§ 22-30.5-703(8)(b). In fact, the Commissioner can assume the powers of the board, vest those powers in an

independent fiduciary, and rescind or reform the

school’s contracts. Colo. Rev. Stat. §§ 22-30.5-703 &

-704. Again, Oklahoma’s and other State’s statutes are

materially identical on most of these points. A charter

school nominally appoints its own board, as needed for

the school community to control the school’s affairs.

But that board’s membership and conduct are thoroughly governed by the State.

Finally, the governmental authority of charter

schools—and the thorough public regulation of that

authority—also confirm their public nature. See Dep’t

of Transp., 575 U.S. at 50–55 (noting that “the political branches exercise substantial, statutorily mandated supervision over [entity’s] priorities and

operations”). Charter schools exercise the delegated

power of their authorizing public entity to issue public-school diplomas, to regulate student conduct, and

even to suspend and expel students—all with the

8

same legal consequences as when done by traditional

public schools. See Colo. Rev. Stat. §§ 22-30.5-104(8) &

-106(1)(p); cf. Goss v. Lopez, 419 U.S. 565 (1975) (recognizing such matters as the exercise of state power).

Unsurprisingly, then, charter schools are subject to

the same legal constraints in doing so as any school

district. Colo. Rev. Stat. §§ 22-30.5-110(3)(d)

& -112(7); cf. Carson v. Makin, 596 U.S. 767, 782–85

(2022) (distinguishing private schools for lacking

these features). They must be open to all students on

the same terms as any other public school, Colo. Rev.

Stat. § 22-30.5-104(3); they cannot charge tuition,

Colo. Rev. Stat. § 22-30.5-104(5) ; they must honor the

same instructional mandates and assessments, Colo.

Rev. Stat. §§ 22-7-1003(9), 22-11-103(1) & (28); and

unless they receive a waiver, they must hire State-licensed teachers subject to the State’s system of tenure-like job protections, see Colo. Rev. Stat. § 22-30.5104(6)(b)(III). Once more, these features are not

unique to Colorado—each point here is true in most or

all States’ laws, including Oklahoma’s.

To be sure, charter schools receive waivers from

some of Colorado’s usual school regulations. Colo. Rev.

Stat. § 22-30.5-104(6). But so do school districts and

traditional public schools. See Colo. Rev. Stat. § 22-2117 (creating broad authority to waive state education

laws and regulations). As a result, these waivers do

not distinguish charter schools from traditional public

schools—they are, rather, one more way in which

9

charters are just like other public schools. 5 Charter

schools are also schools of choice, open to students

mostly without regard to residence, Colo. Rev. Stat.

§ 22-30.5-104(3)—but again, in Colorado (as in many

States), so too are traditional public schools, Colo.

Rev. Stat. § 22-36-101. And charter schools are just

like other public schools in at least one other way as

well: like school districts, they can never waive out of

the fundamental rules of the public sector—like openrecords and open-meetings laws, limited sovereign immunity, and public employees’ retirement systems.

Colo. Rev. Stat. §§ 22-30.5-104.9(2) & -111(3); § 24-10106.3. All this is true in Oklahoma, too.

The foregoing features all follow logically from the

core premise of Colorado’s charter schools act: “A charter school shall be a public school of the school district[.]” Colo. Rev. Stat. § 22-30.5-104(2)(b). Its board

members and staff are thus public servants—just like

in any other public school. Colo. Rev. Stat. § 22-30.5104.9(2)(b). And Colorado’s charter schools act is not

unique. Most States’ acts, including Oklahoma’s,

share nearly all these features. Unsurprisingly, then,

5 Petitioners make much of the waivers and exemptions that

charter schools receive, arguing that it makes them non-governmental. Charter Board Br., pp. 42–43; St. Isidore Br., p. 35. But

just like Colorado, Oklahoma makes substantially the same

waivers available to traditional public schools. See Educational

Deregulation Act, Okla. Stat. tit. 70, §§ 3-124 to 3-129.11 (2011).

Most States have such laws for their traditional public schools.

E.g., Cal. Educ. Code §§ 33050–33054; 105 Ill. Comp. Stat. 5/23.25g; Me. Stat. tit. 20-A, § 8. These waivers may be easier to

come by for charter schools but are not otherwise a material distinction.

10

each State’s statute also establishes charter schools as

public schools—in substance, not mere label.

B. Charter schools’ incorporation and

charter contracts confirm their public

status.

Despite the clear public nature of charter schools,

Petitioners point to their incorporation and their charter contracts to claim that charter schools are simply

private entities that contract with the State for funding. Charter Board Br., pp. 35–37; St. Isidore Br.,

pp. 1, 3. This framing misunderstands the legal framework twice over.

Begin with the separate incorporation. Colorado’s

statute is again illustrative: like every State, Colorado

gives school-level actors control over a charter school’s

day-to-day operations; that’s the whole point of a charter school. See Colo. Rev. Stat. § 22-30.5-104(7)(a) (“A

charter school shall be responsible for its own operation including, but not limited to, preparation of a

budget, contracting for services, facilities, and personnel matters.”). To exercise that control, a charter

school must sign its own contracts—hiring employees,

purchasing property, and so on—which in turn requires separate legal personhood. Cf. First Nat’l City

Bank v. Banco Para El Comercio Exterior de Cuba, 462

U.S. 611, 625 (1983) (“Separate legal personality has

been described as an almost indispensable aspect of

the [governmental] corporation.” (quotation omitted));

Lebron, 513 U.S. at 386–91 (tracing “the allure of the

corporate form” in public entities). Indeed, Colorado

overlooked this step at first—which led to confusion

over a charter board’s legal status, Acad. of Charter

Sch. v. Adams Cnty. Sch. Dist. No. 12, 32 P.3d 456, 459

11

n.2, 469–70 (Colo. 2001), and a quick statutory amendment allowing charter boards to incorporate, 1997

Colo. Sess. Laws 400. In giving charter schools legal

personhood, however, Colorado made explicit that it

did not create private entities:

[E]ach charter school that was initially chartered on or after August 6, 1997, shall organize as a nonprofit corporation pursuant to the

“Colorado Nonprofit Corporation Act” . . .

which shall not affect its status as a public

school for any purposes under Colorado law.

Colo. Rev. Stat. § 22-30.5-104(4)(a). Instead, it simply

borrowed the nonprofit statutes’ governance rules as a

default system for charter schools to follow. See Colo.

Rev. Stat. § 22-30.5-104.9(5) (explaining default structure). The same purpose underlies Oklahoma’s requirement for separate incorporation.

The lesson is exactly the same for charter contracts. In most States, they are not common-law contracts at all, in the sense of a legally enforceable

exchange of consideration. See Contract, Black’s Law

Dictionary (12th ed. 2024) (defining “contract”). They

are instead a charter—a legal instrument reflecting

the sovereign’s grant of permission to operate in its

name. See id. at Charter (defining “charter” as an “instrument that establishes a body politic or other organization, or that grants rights, liberties, or powers

to its citizens or members”); see also Colo. Rev. Stat.

§ 22-30.5-110(1)(a) (“When a local board of education

approves a new charter application, the charter is authorized for a period of at least four years. The local

board of education and the charter school may renew

the charter for successive periods as provided in this

12

section.”). A charter school program is thus not an offer of funding to private entities who wish to provide

education on the State’s behalf. In fact, in many

states—like Oklahoma—private schools are prohibited from applying to become charter schools. E.g.,

Colo. Rev. Stat. § 22-30.5-106(2); Okla. Stat. tit. 70,

§ 3-134(C). A charter contract is, instead, a delegation

of sovereign authority to those who wish to govern one

of the State’s own schools.

To be sure, the grant of authority is reflected in a

negotiated instrument, known as a “charter contract.”

E.g., Colo. Rev. Stat. § 22-30.5-105(1)(a) (“An approved charter application shall serve as the basis for

a contract between a charter school and the chartering

local board of education.”). But that’s only because the

school district or other authorizing entity must hold

the charter school accountable for meeting its stated

goals. See Colo. Rev. Stat. § 22-30.5-110(3)(b) (allowing district to revoke charter if school fails “to meet or

make adequate progress toward” goals). The charter

contract is, in other words, the written instrument reflecting the terms of the State’s grant of authority to

operate in its name.

Indeed, a charter contract lacks the hallmarks of

a regular contract. In Colorado, for example, the State

Board of Education can compel a school district to negotiate a charter contract against its will, Bd. of Educ.

of Sch. Dist. No. 1 v. Booth, 984 P.2d 639, 650–54

(Colo. 1999), violating the voluntariness essential to

common-law contracts. Further, Colorado’s charter

contracts generally cannot be sued upon and are instead enforced only through the State Board of Education’s power to supervise the public school system.

13

Acad. of Charter Sch., 32 P.3d at 462–63, 468–69. And

there is no such thing as either damages or specific

performance: following a dispute, the State Board of

Education can direct that the school open or remain

open (for disputes over granting or revoking a charter), or it can review a mediator’s report (for disputes

over construing a charter). Colo. Rev. Stat. §§ 22-30.5107.5(4) & -108(3)(d). The only further remedy is mandamus. See Colo. R. Civ. P. 106(a)(2). These are the

remedies of a sovereign charter, not a common-law

contract. 6

A charter school’s separate incorporation and

charter contract thus confirm its public status. These

features exist under a special statute authorizing public schools to be organized in such a manner, and they

serve the shared purpose of empowering a school’s

stakeholders to manage the affairs of that school. Neither feature changes the fact that charter schools, like

any public school, are thoroughly infused with State

6 It is this State grant of authority through the charter contract

that prompts Establishment Clause concerns. If a State were to

grant a charter contract to a religious charter school, the State

itself would be empowering a religious entity to operate in the

State’s name, and the State would retain ultimate control over

the charter school’s existence and performance. This it cannot do.

See Everson v. Bd of Educ. of Ewing, 330 U.S. 1, 15–16 (1947)

(“The ‘establishment of religion’ clause of the First Amendment

means at least this: Neither a state nor the Federal Government

can set up a church. Neither can pass laws which aid one religion,

aid all religions, or prefer one religion over another.”).

14

control. 7 That’s because they are unmistakably governmental entities.

C. Petitioners and their amici mischaracterize the history of charter schools.

Petitioners pick up the story of charter schools in

the 1980s and 1990s, as if the idea began there. See

Charter Board Br., pp. 8–9. In doing so, they overlook

the idea’s origins in the civil rights movement—and

they mistake as privatization a model many viewed as

a tool for community empowerment.

Charter schools first arose from the frustration

that some communities felt with large school systems

and elected school boards. See generally Ansley T. Erickson and Ernest Morrell (eds.), Educating Harlem:

A Century of Schooling and Resistance in a Black

Community 276–97 (2018) (tracing ties between charter schools and “community control” movement); Derrick Bell, Silent Covenants: Brown v. Board of

Education and the Unfulfilled Hopes for Racial Reform 170–74 (2004) (endorsing charters). As the great

civil rights leader Kenneth Clark argued, after the disheartening early years of desegregation, elected school

7 Indeed, the level of State control goes far beyond what any

truly private entity would tolerate. No private school—and especially no church, synagogue, or mosque private school—would

agree to the State takeover of its management, personnel, funds,

property, contracts, and ownership in the event the State disapproves of its conduct. Cf. Carson, 596 U.S. at 787 (citing Our Lady

of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 759–62

(2020); Larson v. Valente, 456 U.S. 228, 244 (1982), and decrying

invasive scrutiny of religious schools). Nor could the government

exercise these responsibilities without intimately involving itself

in the religious affairs of the schools to a degree that should give

schools, religious communities, and governments alike pause.

15

systems were often “captives” of the dominant political

class. Kenneth B. Clark, Alternative Public School

Systems, 38 HARV. EDUC. REV. 100, 101–03 (1968).

While Clark did not give up on reforming school districts, he became the first to urge a new model: school

choice featuring “alternative public school systems”

outside the usual district structure. Id. at 111–13.

Clark’s proposal interested many who sought to

expand the role of parents and teachers in the affairs

of their own schools. See Ember Reichgott Junge, Zero

Chance of Passage: The Pioneering Charter School

Story 42–43 (2012) (noting Clark’s influence). For

these advocates, the alternatives Clark sought could

be created by vesting the day-to-day control of individual public schools in each school’s own parents and

teachers. See, e.g., Ray Budde, Education by Charter:

Restructuring School Districts 6, 9–10, 39–45

(1974/1988) (“Changing the internal organization of

the school district would involve making substantial

changes in the roles of teachers, principals, the superintendent, the school board, parents, and others in the

community.”); Albert Shanker, President, Am. Fed’n

of Teachers, National Press Club Speech (Mar. 31,

1988) (“It would be a way for parents and teachers to

cooperate with each other, to build a new structure.”).

Each school’s self-governance would be reflected in a

written charter held by a council of the school’s community members—and so the model became known as

“charter schools.”

Petitioners correctly cite Professors Chubb and

Moe as advocates for charter schools to be schools of

choice, reiterating the arguments made earlier by

Clark, Junge, Budde, and Shanker. See Charter Board

16

Br., p. 8 (citing John E. Chubb & Terry M. Moe, America’s Public Schools: Choice Is a Panacea, Brookings

Rev., Summer 1990, at 4). But in doing so, Petitioners

cherry-pick from Chubb’s and Moe’s argument—overlooking the central premise that charter schools would

not be private schools but would instead be a new approach to democratic accountability:

This proposal calls for fundamental changes

in the structure of American public education.

Stereotypes aside, however, these changes

have nothing to do with “privatizing” the nation’s schools. The choice system we outline

would be a truly public system—and a democratic one.

Chubb & Moe, at 12. Like their predecessors, Chubb

and Moe saw the charter model as a means to facilitate

the responsiveness of a public school to its own students, parents, and teachers.

Adopting this model, Minnesota passed the first

charter schools act in 1991. The law allowed teachers

to “form and operate a school” under the authority of

a sponsoring school district. 1991 Minn. Laws 1124.

The teachers would negotiate “the terms and conditions” for doing so with their sponsor, and the school

would have a “board of directors” elected by the “staff

members employed at the school” and the “parents of

children enrolled in the school.” Id. Once a sponsoring

school district delegated control to the individual

school’s own board, that board would retain control for

as long as it met its academic goals and complied with

its fiscal and legal obligations. Id. at 1128.

Within two years, California and Colorado followed suit, with both States recognizing the roles of

17

parents and teachers in guiding their individual public schools. See 1992 Cal. Stat. 3756, (declaring intent

“to provide opportunities for teachers, parents, pupils,

and community members to establish and maintain

schools that operate independently”); 1993 Colo. Sess.

Laws 1051 (declaring that “educators and parents

have a right and a responsibility to participate in the

education institutions which serve [their students]”).

Within five years, half the States had done the

same—and today, all but four States have adopted a

charter schools act. See Alyssa Rafa et al., Educ.

Comm’n of the States, 50-State Comparison: Charter

School Policies, https://www.ecs.org/charter-schoolpolicies/ (last visited Apr. 3, 2025). Almost without

fail, each State emphasizes the need to expand the role

of parents and teachers in running their own public

schools. E.g., 105 Ill. Comp. Stat. 5/27A-2(c) (“[T]o create a legitimate avenue for parents, teachers, and

community members to take responsible risks and create new, innovative, and more flexible ways of educating children within the public school system.”); Me.

Stat. tit. 20-A, § 2402 (“[T]o provide students, parents,

community members and local entities with expanded

opportunities for involvement in the public education

system.”). Also without fail, each State reaffirms that,

despite being one degree removed from traditional

elected structures, charter schools must remain public

schools—accepting all students, charging no tuition,

and meeting core academic standards. E.g., Ala. Code

§ 16-6F-9(a) & (c); Del. Code tit. 14, § 506(a); La. Stat.

§ 17:3991(E); Utah Code § 53G-5-404. These essential

public mandates include, of course, complying with

the Establishment Clause. See App.

18

The charter model is thus straightforward: it

vests substantial operational control in a school-level

board, to empower the individual school’s community

members. See, e.g., Colo. State Bd. of Educ. v. Brannberg, 525 P.3d 290, 294 (Colo. 2023) (“[T]he General

Assembly adopted the Act to create a form of direct

citizen participation in government through which

members of a community can come together to build

and operate a public school.”).

D. Even if private entities could become

charter schools, such schools would be

pervasively entwined with the State.

As described above, charter schools are not private entities. But even if they were, as some States try

to claim, such schools are still state actors because

they are sufficiently “entwined” with the State or acting solely due to the State’s “coercive” power and “significant encouragement.” See Brentwood Acad. v.

Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 303

(2001) (“[T]he relevant facts show pervasive entwinement to the point of largely overlapping identity[.]”);

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“[A] State

normally can be held responsible for a private decision

only when it has exercised coercive power or has provided such significant encouragement, either overt or

covert, that the choice must in law be deemed to be

that of the State.”). 8 This test is easily satisfied with

respect to charter schools.

8 As this Court has already explained, the reasoning in Ren-

dell–Baker v. Kohn, 457 U.S. 830 (1982), is immaterial when the

purported state action is predicated on entwinement rather than

on traditional public functions. Brentwood Acad., 531 U.S. at

19

Take South Carolina’s statute as an example. Although South Carolina asserts that its charter schools

are private, Br. of Amici Curiae South Carolina et al.

at 5, its own statute belies that claim. In South Carolina, the charter school’s governing board must be approved by the government and must comply with

numerous statutory criteria (including mandated election by school stakeholders). S.C. Code §§ 59-4040(2)(c), -50(B)(9), & -155. The schools are deemed

public schools for all state-law purposes, S.C. Code

§ 59-40-40(2)(a), and must meet the same academic,

financial, transparency, and ethics standards as a traditional public school, S.C. Code § 59-40-50(B)(2), (3),

(10), & (11); § 59-40-75(C). They are open to all students on the same terms as a traditional public school.

S.C. Code § 59-40-50(B)(7)–(8). They are formed only

after a thorough evaluation, S.C. Code § 59-40-60, and

are subject not just to termination of their contract but

to forced dissolution at the State’s direction, S.C. Code

§ 59-40-110 & -120. Their assets revert to the State

upon dissolution. Id. They are funded on precisely the

same basis as any other public school. S.C. Code § 5940-140. Their employees are in the public employees’

pension system. S.C. Code § 59-40-125. And before

South Carolina allows a private school to become a

charter school, it must first dissolve its previous corporate existence. S.C. Code § 59-40-210. Finally, the

302–03; cf. Blum, 457 U.S. at 1005 (describing public-function

test as alternative to other tests). That said, Amici agree with the

public-function analysis in Respondent’s brief, agree that public

education is a traditional and exclusive State function distinguishable from private (even State-subsidized private) education,

and note that all applicable tests point in the same direction.

20

legislature’s stated intent and purposes make no mention whatsoever of privatization or private education,

speaking solely of empowering teachers and creating

innovation “within the public school system.” S.C.

Code §§ 59-40-20 & -30. If these features do not constitute the “pervasive entwinement” and the “coerci[on]”

or “significant encouragement” sufficient to ascribe

the acts of the charter schools to the State, then these

tests have no meaning.

All the same features (or nearly so) can be found

in Oklahoma’s statute—and in most other States’

laws, too. In truth, these same features compel the

conclusion that the schools are not private entities at

all. But even if that were not so, the state-action doctrine would still require that States be constitutionally responsible for their charter schools.

*

*

*

Charter schools are public entities. Cf. Dep’t of

Transp., 575 U.S. at 51–55 (identifying features of

governmental entities). They exist under special statutes authorizing them to be formed on the State’s behalf; they are independently managed under the

State’s direction and supervision; they exercise discretion only as set forth under State law and a State-issued charter; and the State lays claim to all their

funds and assets. There is simply nothing private

about them.

21

Petitioners thus misframe the issue by arguing

that St. Isidore is a private entity seeking to participate in a public benefit. 9 Correctly framed, the dioceses, not St. Isidore, are the private entities at issue.

And when the dioceses organized St. Isidore, they created an inchoate governmental entity (as they were

authorized to do by the Oklahoma Charter Schools

Act), to be operated as a public charter school if and

only if they received the State’s approval to do so.

II. States have the discretion to

participatory public institutions.

create

“Providing public schools ranks at the very apex

of the function of a State.” Wisconsin v. Yoder, 406 U.S.

205, 213 (1972). This Court has thus often affirmed

the “considerable discretion in operating public

schools” that the Constitution affords to States, Edwards v. Aguillard, 482 U.S. 578, 583 (1987), including the discretion to create new forms of democratic

accountability within the school system, e.g., Sailors

v. Bd. of Educ. of Kent Cnty., 387 U.S. 105, 109 (1967)

(“The science of government . . . is the science of experiment.” (cleaned up)). Petitioners’ claims would upend

these long-established, paramount principles of federalism.

A. States are free to structure their governmental entities as they see fit.

States often experiment with nontraditional governance structures. See generally Jeffrey S. Sutton,

Who Decides? States as Laboratories of Constitutional

9 Again, Oklahoma law does not allow private schools to apply

to become charter schools in the first place. Okla. Stat. tit. 70,

§ 3-134(C).

22

Experimentation 147–235, 303–27 (2022); Miriam

Seifter, Understanding State Agency Independence,

117 MICH. L. REV. 1537 (2018). They use appointed

boards of citizen-experts to regulate the professions.

E.g., Colo. Rev. Stat. § 12-115-104. They use municipal

and other governmental corporations as special-purpose authorities. E.g., Colo. Rev. Stat. § 24-77-102(15).

They allow local governments to band together in joint

ventures. E.g., Colo. Rev. Stat. §§ 29-1-203 & -203.5.

And in myriad different ways, they mix-and-match

these models to create the precise administrative

structure needed for a given job. E.g., Colo. Rev. Stat.

§§ 22-5-101 to -122 (authorizing school-district cooperatives governed by appointed boards as negotiated by

member districts).

Many of these innovations bring the people themselves directly into the work of governing. And by and

large, these innovations also provide a form of responsiveness and democratic accountability to specific constituencies. See N.C. State Bd. of Dental Exam’rs v.

F.T.C., 574 U.S. 494, 512 (2015) (“The States have a

sovereign interest in structuring their governments

. . . . There is, moreover, a long tradition of citizens esteemed by their professional colleagues devoting time,

energy, and talent to enhancing the dignity of their

calling.” (cleaned up)). For a licensing agency like a

state bar or medical board, the structure allows the

profession itself to be heard. For a charter school, the

structure holds the school accountable to its own parents and teachers—elevating their voices to a primary

role, distinct from the voters and taxpayers of the geographic school district.

23

At no point has this Court ever doubted that the

Constitution reserves to States the sovereignty to engage in such innovation. See Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60, 71 (1978) (states have “extraordinarily wide latitude” in creating “various types

of political subdivisions and conferring authority upon

them”); Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597,

607–08 (1991) (states have “absolute discretion” to create political subdivisions “as convenient agencies for

exercising such of the governmental powers of the

State as may be entrusted to them” (quoting Sailors,

387 U.S. at 108) (cleaned up)); Schuette v. Coal. to Defend Affirmative Action, 572 U.S. 291, 327 (2014)

(characterizing this discretion as “near-limitless sovereignty”) (Scalia, J., concurring). And when the

States that create these structures believe the structures to be governmental in nature—that is, to be instrumentalities of the State—this Court does not

second-guess the matter. E.g., Biden v. Nebraska, 600

U.S. 477, 488–94 (2023) (respecting statutory declaration that special-purpose authority was “public instrumentality” of the State); Sailors, 387 U.S. at 108

(approving county-level school boards appointed by

elected members of district school boards).

At bottom, there is no “one best way” to govern.

The Constitution affords States the discretion to create novel models of governance. In public education,

one popular innovation has been to bring parents and

teachers directly into the governing of their own

schools. And never in this Court’s history has it

doubted that such citizen boards, appointed under

State authority and clothed with the power of the

State, are still public entities.

24

B. States’ discretion includes creating public school choices, private choices, or

both—as they see fit.

To the best of Amici’s knowledge, every State to

date has designed charter schools as a tool to expand

the role of a public school’s own parents and educators

in school affairs. See, e.g., Colo. Rev. Stat. § 22-30.5102(3) (“In authorizing charter schools, it is the intent

of the general assembly to create a legitimate avenue

for parents, teachers, and community members to implement new and innovative methods of educating

children . . . within the public education system.” (emphasis added)). And every State to date has required

charter schools to be public, nonsectarian schools. See

App; cf. Carson, 596 U.S. at 785 (States “may provide

a strictly secular education in [their] public schools”).

Amici are aware of no State that adopted charter

schools as a type of subsidy for private education, a

tool for outsourcing, or any other method of relying on

the private sector to assist in the delivery of public services. Indeed, many States—like Oklahoma—have

adopted both charter schools and private school

choice, clearly delineating between them.

Take Oklahoma’s charter schools act, which bears

the usual hallmarks of school-level governance and of

public school choice. The statute was adopted to empower parents and teachers. E.g., Okla. Stat. tit. 70,

§ 3-131 (stating intent to “[c]reate new professional

opportunities for teachers and administrators . . . to be

responsible for the learning program at the school

site”). It expressly declares that charter schools are

public schools, part of the State’s regular system of

public education. Okla. Stat. tit. 70, § 3-132.2(C)(1). It

25

subjects charter schools to the regulations usually applied to governmental entities. E.g., Okla. Stat. tit. 70,

§ 3-136(A)(5)–(17) (requiring charter schools to be

open to all, free of tuition, subject to sovereign immunity waivers and transparency laws, and subject to all

the same financial oversight as school districts). It

subjects charter schools to the comprehensive, soupto-nuts evaluations that all public schools face but

that few private entities would tolerate. E.g., Okla.

Stat. tit. 70, §§ 3-136(A)(18) & -137. It requires charter

schools to be open to all students, Okla. Stat. tit. 70,

§ 3-140, and it subjects them to the State’s usual testbased accountability system, Okla. Stat. tit. 70, § 3153. And finally, it requires charter schools to return

their funds and property to the State upon closure.

Okla. Stat. tit. 70, § 3-136(G).

These features contrast sharply with Oklahoma’s

policies for relying on private educators. The State offers at least three different voucher-like programs to

support private school choice. See Okla. Stat. tit. 68,

§ 2357.206; Okla. Stat. tit. 70, §§ 13-101.1 to -101.2;

§§ 28-100 to -103. These private-school programs are

widely available to religious and nonreligious schools

alike. Oliver v. Hofmeister, 368 P.3d 1270 (Okla. 2016);

see also Br. of Amicus Curiae the Wolff Family, App.

(listing sectarian participants). And in none of these

programs does the State of Oklahoma lay claim to the

school’s governance or property, nor does it purport to

authorize the schools as public schools.

Amici reject the claim by some states that their

charter schools are private. See Br. of Amici Curiae

South Carolina et al. But that does not mean that

there are not other ways a state could allow a private

26

entity to provide some educational services. It is the

prerogative of sovereign States to innovate with new

systems of democratic accountability. It is also only

through their sovereignty that States who wish to rely

on the private sector to help provide public education

can choose to do so. Whether to pursue one model, the

other, or neither, or both—these are decisions properly

reserved to the States to make.

III. A broad ruling would disrupt charter

schools across the country and likely force

thousands of schools to close.

The public-private distinction is not a matter of

mere legislative labels. If the Court finds charter

schools to be private entities here, that ruling would

undermine the settled understanding to the contrary

in countless other legal contexts. After all, a governmental entity for one constitutional purpose is usually

a governmental entity for any other constitutional

purpose too. See Lebron, 513 U.S. at 386–91 (Amtrak

is public for First Amendment purposes); Dep’t of

Transp., 575 U.S. at 50–55 (Amtrak is public for separation-of-powers purposes). And even in statutory contexts, substance generally prevails over form. See, e.g.,

Apple Inc. v. Pepper, 587 U.S. 273, 284 (2019) (arguing

against rule that “would elevate form . . . over substance”); id. at 295 (arguing against rule that “exalts

form over substance”) (Gorsuch, J., dissenting).

States, school districts, and private investors have all

relied on the public status of charter schools for countless legal purposes. Petitioners’ ill-conceived litigation

threatens to upend all of it.

27

A. States’ education funding policies rely

on charter schools’ constitutional status

as public schools.

Dating to the Northwest Ordinance of 1787, the

federal government has directed nearly every State

admitted to the Union to provide for public schools.

Papasan v. Allain, 478 U.S. 265, 268–70 (1986); see,

e.g., Northwest Ordinance of 1787, Confederation

Cong., § 14, art. 3; Oklahoma Enabling Act, ch. 3335,

34 Stat. 267, 270–71 (June 16, 1906). In many States,

Congress even provided a trust fund—seeded with federal lands—for this purpose. Papasan, 478 U.S. at

268–70, 289 n.18; see, e.g., 34 Stat. at 272–74.

In the years since, these Congressional mandates

and the state constitutional doctrines arising from

them have become the foundation for States’ complex

systems of school finance. See, e.g., Okla. Const. art.

XIII (mandated system of public schools relying on

and derived from federal trust). These doctrines draw

sharp constitutional distinctions between public and

private schools. The experiences of Michigan, Washington, and Kentucky are instructive.

Michigan does not have school vouchers or other

forms of private school choice, due to its “extremely restrictive” constitution. 10 But in 1993, it adopted a

charter schools act. See Council of Organizations &

Others for Educ. About Parochiaid, Inc. v. Governor,

566 N.W.2d 208, 211 (Mich. 1997). The program was

10

EdChoice,

School

Choice

in

Michigan,

https://www.edchoice.org/school-choice/state/michigan/ (last visited Apr. 3, 2025).

28

immediately enjoined by a state trial court (in a decision upheld by the intermediate appellate court) on

precisely the grounds urged by Petitioners here: that

the schools were not public because they were not under the “immediate, exclusive control of the state”

through “publicly elected bodies.” Id. at 212. As a result, the courts reasoned, charter schools could not

lawfully receive the state’s constitutionally protected

funding for public schools. Id. The Michigan Supreme

Court reversed in 1997, reasoning that charter schools

were, in fact, under the State’s control through the

statutory chartering process and the statutory constraints on selecting charter schools’ governing

boards. Id. at 216–21. 11

Washington faced a similar challenge. The relevant enabling act, as per usual, directed new States in

the territory to provide in their constitutions “for the

establishment and maintenance of systems of public

schools, which shall be open to all the children of said

States,” and it provided a federal trust fund to support

that effort. Act of Feb. 22, 1889, ch. 180, 25 Stat. 676,

677, 679–80. The Washington Constitution then explicitly tied these mandates together, providing that

the funds derived from or commingled with the federal

trust could be spent only on its constitutional “common schools.” See Wash. Const. art. IX, §§ 2–3. When

the voters of Washington first adopted charter schools

11 Michigan is not unique. Similar lawsuits in Ohio, Louisiana,

and Mississippi have challenged charter schools’ access to their

States’ constitutionally protected education funding. State ex rel.

Ohio Cong. of Parents & Teachers v. State Bd. of Educ., 857

N.E.2d 1148, 1156–60 (Ohio 2006); Iberville Par. Sch. Bd. v. La.

State Bd. of Elementary & Secondary Educ., 248 So. 3d 299, 306–

11 (La. 2018); Araujo v. Bryant, 283 So. 3d 73, 78–83 (Miss. 2019).

29

outside the “complete control” of local elected school

boards, the Washington Supreme Court declared them

not to be common schools eligible for funding under

the State’s regular school-finance system. League of

Women Voters of Wash. v. State, 355 P.3d 1131, 1137–

40 (Wash. 2015). Charter schools survived in the State

only after the legislature switched to a wholly separate stream of funding. El Centro De La Raza v. State,

428 P.3d 1143, 1154–55 (Wash. 2018). The voters of

Washington adopted school choice by initiative—and

due to litigation over the constitutional status of charter schools as public schools, it took six years and legislation allocating an entirely new funding stream

before the people received the benefit of their decision.

Kentucky provides a fitting bookend. The State

adopted a charter schools act in 2017 but did not appropriate funds until 2022. See 2017 Ky. Acts 758;

2022 Ky. Acts 1982. And when the legislature provided funds, the State was promptly enjoined on the

ground that charter schools are, for constitutional purposes, private schools. Council for Better Educ., Inc. v.

Glass, No. 23-CI-0020, 2023 WL 11987862 (Ky. Cir.

Ct. Dec. 11, 2023), appeal pending sub. nom. Commonwealth ex rel. Coleman v. Council for Better Educ., Inc.,

No. 2024-SC-0002 (Ky.). The Kentucky Constitution

also forbids any funding of private schools with constitutionally protected funds. See Commonwealth ex rel.

Cameron v. Johnson, 658 S.W.3d 25 (Ky. 2022). As a

result, until its charter schools are recognized as public entities for constitutional purposes, the people of

30

Kentucky have virtually no access to school choice—

despite their elected legislature’s efforts. 12

Now, more than three million students attend

charter schools whose funding usually relies on the

settled question that charter schools are public

schools—as a matter of constitutional substance, not

just of legislative label. If this Court declares otherwise, many States will live or relive disruptive litigation (and potential need to identify new funding); 13 or,

contrary to their own duly enacted laws, end up like

Kentucky—with no charter schools at all.

B. Private markets have invested billions

in reliance on charter schools’ public

status.

Constitutional lawyers are not the only ones who

care about charter schools’ public status. Charter

schools rely on their public status to pay for school

buildings, and so do the investors who provide that

capital.

Most States do not require school districts to

share their district-owned facilities with charter

schools, nor to include charter schools in local bond

Again, there is not much unique about Kentucky’s story.

South Carolina likewise has little constitutional power to fund

private schools, Eidson v. S.C. Dep’t of Educ., 906 S.E.2d 345

(S.C. 2024)—raising the grave risk that, if its charter schools are

not public entities for constitutional purposes, they too are on the

constitutional chopping block.

12

13 As if to prove the flood of litigation waiting just behind the

gates, a lawsuit predicated on charter schools’ alleged private status is already pending in Colorado. See Mamas de DPS, LLC v.

Denver Public Sch. Dist. No. 1, Case No. 24CV33951 (Denver

Dist. Ct.) (filed Dec. 19, 2024).

31

elections. See, e.g., Colo. Rev. Stat. §§ 22-30.5-104(7.5)

& -404 (discretionary access to district facilities and

bonds). Instead, States provide credit enhancements

that help charter schools access public bonds in their

own right. 14 In the past decade, more than $40 billion

in tax-exempt bond financing has been issued to provide charter schools with school facilities. 15 Every one

of these bond issuances relies on representations, in

the offering statement, about the debtors’ funding system and resulting ability to service the loans. And that

means every such bond is threatened by the wave of

litigation to be set loose by Petitioners’ claims. Take

Colorado: a lawsuit arguing that charter schools are

not public schools in constitutional substance would

undermine the funding systems on which investors

have purchased nearly $4 billion in bonds over the

past decade. The investment is nearly as large in California, and fully twice as large—about $8 billion—in

Texas.

These threats to revenue are only the beginning

of the risk. Although most charter schools (being separately incorporated) qualify for tax-exempt bonds

based on their nonprofit status, many charter schools

14 See, e.g., U.S. Dep’t of Educ. Charter School Resource Center,

Facilities Financing Opportunities (Credit Enhancement),

https://charterschoolcenter.ed.gov/funding/facilities-financingopportunities (last visited Apr. 3, 2025).

15 Sara Sorbello, Local Initiatives Support Corporation, Charter

School Bond Issuance by State, https://assets.foleon.com/eu-central-1/de-uploads-7e3kk3/48388/charter_school_bond_issuance_volume_4_1312024.41cd689c8da3.pdf.

32

choose to do so based on their public status instead. 16

Bond counsel and underwriters are unlikely to support such issuances if courts hold that charter schools

are not, in substance, public schools. And because the

tax exemption for nonprofit uses is currently on the

congressional chopping block, 17 financing based on

public status may soon be the only route left to affordable facilities. Declaring charter schools to be private

schools threatens not only to disrupt the existing $40

billion charter bond market, but also to eliminate future bonds altogether—leaving charter schools with

no access to affordable financing.

C. The harms alleged by Petitioners and

their amici are fictional.

For all the foregoing reasons, the rule urged by St.

Isidore would disrupt the legal frameworks and settled interests on which millions of students and billions of dollars have relied. Nonetheless, Petitioners

and their amici claim two types of adverse consequences running the opposite direction. Both are illusory.

16 For example, Addenbrooke Classical Academy in Lakewood,

Colorado, issued $25.3 million in bonds as a public entity in 2020.

See

Electronic

Municipal

Market

Access,

https://emma.msrb.org/IssueView/Details/SS401108 (last visited

Apr. 3, 2025). So too did the Paradise Schools Project in Arizona,

for over $14 million. See Electronic Municipal Market Access,

https://emma.msrb.org/IssueView/Details/ES397606 (last visited

Apr. 3, 2025).

17 Cong. Budget Off., Budget Options: Eliminate the Tax Exemption for New Qualified Private Activity Bonds (Dec. 12, 2024)

https://www.cbo.gov/budget-options/60944.

33

The biggest risk claimed by Petitioners and their

amici is from unduly expanding the state-actor analysis. On this theory, treating charter schools as state

actors sets a precedent that threatens the same treatment for the countless private providers—religious or

otherwise—on which State and local governments rely

to deliver healthcare, foster care, and dozens of other

public services. But this claim is easily dismissed:

those other private providers are (obviously) private

providers, and charter schools are not. At least in most

States, charter schools are governmental corporations.

Charter schools are created under special statutes authorizing them to exist, they are subject to thorough

State control, and they exercise sovereign authority.

They are in no sense similarly situated to the private

providers of Petitioners’ and their amici’s parade of

horribles.

The second adverse consequence urged by Petitioners is from overly regulating charter schools themselves. On this theory, the diversity and innovation of

the charter sector would be diminished by requiring

charter schools to be secular. Yet that’s the current

law in every State; the diversity and innovation of the

charter sector currently exists in a wholly secular environment. Indeed, three of the States with the fastest-growing charter enrollment 18 are in the Tenth

Circuit, which has always treated charter schools as

public entities. See, e.g., Brammer-Hoelter v. Twin

Peaks Charter Acad., 602 F.3d 1175, 1188–91 (10th

18 Matthew Ladner, In Defense of Education’s “Wild West,” Education Next (Jan. 25, 2018), https://www.educationnext.org/indefense-educations-wild-west-charter-schools-thrive-four-corners-states/.

34

Cir. 2010) (considering Monell claim against charter

school as a local governmental entity). It is Petitioners, not Respondent, who seek to unsettle the law—

and it is thus Petitioners’ claim, not the decision below, that threatens the existing success of the charter

school movement.

CONCLUSION

This Court extends considerable deference to the

States when it comes to public schooling. Amici urge

the Court to exercise the same caution here. States

should be able to let parents and educators govern

their own schools while still maintaining those schools

as public, governmental entities.

35

Respectfully submitted,

PHILIP J. WEISER

Attorney General

SHANNON WELLS

STEVENSON

Solicitor General

Counsel of Record

Office of the Colorado

Attorney General

1300 Broadway

10th Floor

Denver, Colorado 80203

Shannon.Stevenson@coag.gov

(720) 508-6000

RUSSELL D. JOHNSON

Deputy Solicitor General

JOE PETERS

Senior Assistant Attorney

General

ABBY CHESTNUT

Assistant Solicitor

General

DAYNA ZOLLE HAUSER

Assistant Solicitor

General

(counsel continues on next page)

36

KRIS MAYES

Attorney General

State of Arizona

2005 N. Central Ave.

Phoenix, AZ 85004

ROB BONTA

Attorney General

State of California

1300 I St.

Sacramento, CA 95814

WILLIAM TONG

Attorney General

State of Connecticut

165 Capitol Ave.

Hartford, CT 06106

KATHLEEN JENNINGS

Attorney General

State of Delaware

820 N. French St.

Wilmington, DE 19801

BRIAN L. SCHWALB

KWAME RAOUL

Attorney General

Attorney General

District of Columbia

State of Illinois

th

400 6 St., NW., Ste. 8100 500 S. 2nd St.

Washington, D.C. 20001 Springfield, IL 62701

AARON M. FREY

Attorney General

State of Maine

6 State House Station

Augusta, ME 04333

ANTHONY G. BROWN

Attorney General

State of Maryland

200 Saint Paul Place

Baltimore, MD 21202

37

ANDREA JOY CAMPBELL

Attorney General

Commonwealth of

Massachusetts

One Ashburton Place

Boston, MA 02108

KEITH ELLISON

Attorney General

State of Minnesota

102 State Capitol

75 Rev. Dr. Martin Luther

King Jr. Blvd.

St. Paul, MN 55155

AARON D. FORD

Attorney General

State of Nevada

100 N. Carson St.

Carson City, NV 89701

MATTHEW J. PLATKIN

Attorney General

State of New Jersey

25 Market St., 8th Fl.

Trenton, NJ 08625

RAÚL TORREZ

Attorney General

State of New Mexico

408 Galisteo St.

SANTA FE, NM 87501

LETITIA A. JAMES

Attorney General

State of New York

28 Liberty St.

New York, NY 10005

DAN RAYFIELD

Attorney General

State of Oregon

1162 Court St. NE

Salem, OR 97301

PETER F. NERONHA

Attorney General

State of Rhode Island

150 S. Main St.

Providence, RI 02903

NICHOLAS W. BROWN

Attorney General

State of Washington

P.O. Box 40100

Olympia, WA 98504

April 7, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

APPENDIX TABLE OF CONTENTS ....................... ia

LIST OF STATE STATUTES .................................. 1a

1.

Alabama ............................................................. 1a

2.

Alaska ................................................................ 1a

3.

Arizona ............................................................... 1a

4.

Arkansas ............................................................ 1a

5.

California ........................................................... 1a

6.

Colorado ............................................................. 2a

7.

Connecticut ........................................................ 2a

8.

Delaware ............................................................ 2a

9.

District of Columbia .......................................... 2a

10. Florida ................................................................ 2a

11. Georgia ............................................................... 2a

12. Idaho .................................................................. 3a

13. Illinois ................................................................ 3a

14. Indiana ............................................................... 3a

15. Iowa .................................................................... 3a

16. Kansas ............................................................... 3a

17. Kentucky ............................................................ 3a

18. Louisiana ........................................................... 4a

19. Maine ................................................................. 4a

20. Maryland............................................................ 4a

21. Massachusetts ................................................... 4a

iia

22. Michigan ............................................................ 4a

23. Minnesota .......................................................... 4a

24. Mississippi ......................................................... 5a

25. Missouri ............................................................. 5a

26. Montana ............................................................. 5a

27. Nevada ............................................................... 5a

28. New Hampshire ................................................. 5a

29. New Jersey......................................................... 5a

30. New Mexico ........................................................ 6a

31. New York ........................................................... 6a

32. North Carolina................................................... 6a

33. Ohio .................................................................... 6a

34. Oklahoma........................................................... 6a

35. Oregon ................................................................ 7a

36. Pennsylvania ..................................................... 7a

37. Rhode Island ...................................................... 7a

38. South Carolina................................................... 7a

39. Tennessee........................................................... 7a

40. Utah ................................................................... 8a

41. Virginia .............................................................. 8a

42. Washington ........................................................ 8a

43. West Virginia ..................................................... 8a

44. Wisconsin ........................................................... 8a

45. Wyoming ............................................................ 9a

LIST OF STATE STATUTES

1.

Alabama

Ala. Code §§ 16-6F-7(b)(3) (“An authorizer shall

not approve a public charter school application that

includes . . . [a]ny parochial or religious theme.”) & 166F-9cb)(2) (“No public charter school may engage in

any sectarian practices in its educational program, admissions or employment policies, or operations.”)

2.

Alaska

Alaska Stat. § 14.03.265(c) (“In addition to other

requirements of law, a charter school shall be nonsectarian.”)

3.

Arizona

Ariz. Rev. Stat. § 15-183(E) (“The charter of a

charter school shall do all of the following . . . [e]nsure

that it is nonsectarian in its programs, admission policies and employment practices and all other operations.”)

4.

Arkansas

Ark. Code § 6-23-401(a) (“An open-enrollment

public charter school . . . [s]hall not be religious in its

operations or programmatic offerings.”)

5.

California

Cal. Educ. Code § 47605(e)(1) (“In addition to any

other requirement imposed under this part, a charter

school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations, shall not charge tuition, and shall not

discriminate against a pupil on the basis of the characteristics listed in Section 220.”)

2a

6.

Colorado

Colo. Rev. Stat. § 22-30.5-104(1) (“A charter

school shall be a public, nonsectarian, nonreligious,

non-home-based school which operates within a public

school district.”)

7.

Connecticut

Conn. Gen. Stat. § 10-66aa(1) (“‘Charter school’

means a public, nonsectarian school[.]”)

8.

Delaware

Del. Code tit. 14, § 506(a) (“A charter school may

not . . . [b]e home-based nor engage in any sectarian or

religious practices in its educational program, admissions policies, employment policies or operations.”)

9.

District of Columbia

D.C. Code § 38-1802.04(c)(15) (“A public charter

school shall be nonsectarian and shall not be affiliated

with a sectarian school or religious institution.”)

10. Florida

Fla. Stat. § 1002.33(9)(a) (“A charter school shall

be nonsectarian in its programs, admission policies,

employment practices, and operations.”)

11. Georgia

Ga. Code § 20-2-2065 (“[T]he local board and state

board shall ensure that a charter school, or for charter

systems, each school within the system, shall be . . .

[a] public, nonsectarian, nonreligious, nonprofit

school[.]”)

3a

12. Idaho

Idaho Code § 33-5206(1) (“A public charter school

shall be nonsectarian in its programs, affiliations, admission policies, employment practices, and all other

operations[.]”)

13. Illinois

105 Ill. Comp. Stat. 5/27A-5(a) (“A charter school

shall be a public, nonsectarian, nonreligious, nonhome based, and non-profit school.”)

14. Indiana

Ind. Code § 20-24-1-4 (“‘Charter school’ means a

public elementary school or secondary school established under this article that . . . is nonsectarian and

nonreligious[.]”)

15. Iowa

Iowa Code § 256E.7(2) (“A charter school established under this chapter is exempt from all state statutes and rules and any local rule, regulation, or policy,

applicable to a noncharter school, except that the charter school shall . . . [o]perate as a nonsectarian, nonreligious school.”)

16. Kansas

Kan. Stat. § 72-4207 (“The board of education of

any school district may authorize the establishment of

a nonsectarian charter school[.]”)

17. Kentucky

Ky. Rev. Stat. § 160.1592(14) (“A public charter

school shall be nonsectarian in its programs, admissions policies, employment practices, partnerships,

and all other operations[.]”)

4a

18. Louisiana

La. Stat. § 17:3991(C) (“A charter school shall . . .

[b]e nonsectarian in its programs, admissions policies,

and employment practices.”)

19. Maine

Me. Rev. Stat. tit. 20-A, § 2412(4)(B) (“A public

charter school may not engage in any religious practices in its educational program, admissions or employment policies or operations.”)

20. Maryland

Md. Code, Educ. § 9-102 (“In this title, ‘public

charter school’ means a public school that . . . [i]s nonsectarian in all its programs, policies, and operations[.]”)

21. Massachusetts

Mass. Gen. Laws ch. 71, § 89(d) (“Private and parochial schools shall not be eligible for charter school

status.”)

22. Michigan

Mich. Comp. Laws § 380.1217 (“A board of . . . a

public school academy shall not apply money received

by it from any source for the support and maintenance

of a school sectarian in character.”)

23. Minnesota

Minn. Stat. § 124E.06, subd. 3(c) (“A charter

school must be nonsectarian in its programs, admission policies, employment practices, and all other operations.”)

5a

24. Mississippi

Miss. Code § 37-28-43(1) (“A charter school may

not engage in any sectarian practices in its educational program, admissions or employment policies or

operations.”)

25. Missouri

Mo. Stat. § 160.405(4) (“A charter school shall . . .

[b]e nonsectarian in its programs, admission policies,

employment practices, and all other operations[.]”)

26. Montana

Mont. Code § 20-6-811(6)(a) (“A public charter

school may not engage in any sectarian practices in its

educational program, admissions policies, employment policies or practices, or operations.”)

27. Nevada

Nev. Rev. Stat. § 388A.366(1) (“A charter school

shall . . . [r]emain nonsectarian, including, without

limitation, in its educational programs, policies for admission and employment practices.”)

28. New Hampshire

N.H. Rev. Stat. § 194-B:1(IV) (“A chartered public

school shall operate as a nonprofit secular organization under a charter granted by the state board and in

conformance with this chapter.”)

29. New Jersey

N.J. Stat. § 18A:36A-4.1 (“The application of a

nonpublic school to convert to a charter school shall

certify that upon conversion to charter school status

the school shall prohibit religious instruction, events,

6a

and activities that promote religious views, and the

display of religious symbols.”)

30. New Mexico

N.M. Stat. § 22-8B-4(J) (“A charter school shall be

a nonsectarian, nonreligious and non-home-based

public school.”)

31. New York

N.Y. Educ. Law § 2854(2)(a) (“A charter school

shall be nonsectarian in its programs, admission policies, employment practices, and all other operations

and shall not charge tuition or fees; provided that a

charter school may require the payment of fees on the

same basis and to the same extent as other public

schools.”)

32. North Carolina

N.C. Gen. Stat. § 115C-218.50(a) (“A charter

school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.”)

33. Ohio

Ohio Rev. Code § 3314.029(a)(1) (“Each application submitted to the department shall include the following . . . [a] statement that the school will be

nonsectarian in its programs, admission policies, employment practices, and all other operations[.]”)

34. Oklahoma

Okla. Stat. tit. 70, § 3-136(A)(2) (“A charter school

shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.”)

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35. Oregon

Or. Rev. Stat. § 338.115(4) (“A public charter

school may not violate the Establishment Clause of

the First Amendment to the United States Constitution or Article I, section 5, of the Oregon Constitution,

or be religion based.”)

36. Pennsylvania

24 Pa. Stat. § 17-1715-A(a)(4)–(5) (“A charter

school shall be nonsectarian in all operations.” “A

charter school shall not provide any religious instruction[.]”)

37. Rhode Island

16 R.I. Gen. Laws § 16-77-3.1(d) (“Any charter

public school authorized by this chapter shall be nonsectarian and nonreligious in its programs, admissions policies, employment practices, and all other

operations.”)

38. South Carolina

S.C. Code § 59-40-40(1) (“A ‘charter school’ means

a public, nonreligious, nonhome-based, nonprofit corporation forming a school that operates by sponsorship of a public school district, the South Carolina

Public Charter School District, or a public or independent institution of higher learning[.]”)

39. Tennessee

Tenn. Code § 49-13-111(a) (“A public charter

school shall . . . [o]perate as a public, nonsectarian,

nonreligious public school[.]”)

8a

40. Utah

Utah Code § 53G-5-404(1) (“A charter school shall

be nonsectarian in the charter school's programs, admission policies, employment practices, and operations.”)

41. Virginia

Va. Code § 22.1-212.6:1(G) (“No public charter

school shall engage in any sectarian practices in its

educational program, admissions or employment policies, or operations.”)

42. Washington

Wash. Rev. Code § 28A.710.040(4) (“A charter

school may not engage in any sectarian practices in its

educational program, admissions or employment policies, or operations.”)

43. West Virginia

W. Va. Code § 18-5G-3(a)(4) (“Public charter

schools authorized pursuant to this article shall meet

the following general criteria: . . . Are not affiliated

with or espouse any specific religious denomination,

organization, sect, or belief and do not promote or engage in any religious practices in their educational

program, admissions, employment policies, or operations[.]”)

44. Wisconsin

Wis. Stat. § 118.40(4) (“A charter school governing

board shall . . . [b]e nonsectarian in its programs, admissions policies, employment practices and all other

operations.”)

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45. Wyoming

Wyo. Stat. § 21-3-304(a) (“A charter school shall

be a public, nonsectarian, nonreligious, nonhomebased school which operates within a public school district.”)