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

Oklahoma Supreme Court

BRIEF OF AMICUS CURIAE

CHARTER SCHOOL GROWTH FUND

IN SUPPORT OF RESPONDENT

Kathryn M. Barber

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

H. Brent McKnight, Jr.

MCGUIREWOODS LLP

501 Fayetteville St., Suite 500

Raleigh, NC 27601

Jonathan Y. Ellis

Counsel of Record

MCGUIREWOODS LLP

888 16th Street N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ................................ 1

INTRODUCTION ............................................................... 2

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

ARGUMENT ........................................................................ 7

I.

II.

Charter Schools Benefit Students, Families,

and Communities by Providing Free Public

Education with Flexibility to Innovate .................. 7

A.

Charter schools provide high-quality

public education and enhance outcomes

for a diverse range of students ................... 7

B.

A State could construct a charter-school

framework that provides for religious

education ....................................................... 9

The Constitution Need Not Mandate a

Uniform National Approach to Religious

Charter Schools ...................................................... 11

A.

States must have latitude to choose

among various alternatives in providing

public education .......................................... 12

1.

In numerous contexts, this Court

has recognized that the Constitution

affords States substantial latitude

to design and implement

government programs ................... 12

2.

These same principles should

apply to a State’s provision of

public education through charter

schools .............................................. 16

ii

B.

If a State chooses to operate a charterschool program, it is not bound to include

religious charter schools ............................ 19

1.

History and tradition support allowing States to decide whether

to establish religious charter

schools .............................................. 20

2.

Allowing States to operate

secular charter-school programs

does not penalize religion or prohibit religious education................. 25

3.

Compelling, non-discriminatory

reasons support an exclusively

secular public-education

system .............................................. 27

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc., 570 U.S. 205 (2013) ..................... 5, 13, 18, 26

Carson v. Makin,

596 U.S. 767 (2022) .................................... 3, 5, 17-19, 28

Christian Legal Soc’y Chapter of the Univ.

of Cal., Hastings Coll. of Law v.

Martinez, 561 U.S. 661 (2010) ............................... 14, 17

Church of Lukumi Babalu Aye, Inc. v.

Hialeah, 508 U.S. 520 (1993) ....................................... 25

Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788 (1985) ................................... 13

Davenport v. Wash. Educ. Ass’n,

551 U.S. 177 (2007) .................................................. 14-15

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .................................... 3, 5, 17, 22-25

Everson v. Bd. of Educ. of Ewing Twp.,

330 U.S. 1 (1947) ........................................................... 26

Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260 (1988) ....................................................... 16

Iancu v. Brunetti,

588 U.S. 388 (2019) .................................................. 15-16

iv

Legal Servs. Corp. v. Velazquez,

531 U.S. 533 (2001) ........................................... 13, 14, 18

Locke v. Davey,

540 U.S. 712 (2004) ....................................................... 11

Lyng v. Nw. Indian Cemetery Protective

Ass’n, 485 U.S. 439 (1988) ............................................ 26

Matal v. Tam,

582 U.S. 218 (2017) ....................................................... 15

McDaniel v. Paty,

435 U.S. 618 (1978) ....................................................... 26

Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998) ....................................................... 13

New State Ice Co. v. Leibmann,

285 U.S. 262 (1932) ....................................................... 17

Our Lady of Guadalupe Sch. v. MorrisseyBerru, 591 U.S. 732 (2020) ........................................... 28

Plyler v. Doe,

457 U.S. 202 (1982) ....................................................... 18

Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819 (1995) ........................................... 14

Rust v. Sullivan,

500 U.S. 173 (1991) ....................................................... 13

Trinity Lutheran Church of Colum., Inc. v.

Comer, 582 U.S. 449 (2017) ................. 3, 5, 11, 17, 25-26

v

Vidal v. Elster,

602 U.S. 286 (2024) ................................................. 16, 20

Widmar v. Vincent,

454 U.S. 263 (1981) ....................................................... 17

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................. 16, 27

Ysursa v. Pocatello Education Ass’n,

555 U.S. 353 (2009) ....................................................... 15

Zorach v. Clauson,

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

Constitutional Provisions

Ga. Const., Art. LVI (1777),

https://tinyurl.com/vpz4pmnk ..................................... 21

Md. Const., Art. I, § 1 (1792),

https://tinyurl.com/2ux7p4tb; ...................................... 21

N.H. Bill of Rights, § VI (1783),

https://tinyurl.com/yvmpjt89 ....................................... 22

Okla. Const., Art. 13, § 1 .................................................... 16

Pa. Const., Art. IX, § III (1790),

https://tinyurl.com/3mk7x584; .................................... 21

Pa. Const Art. XXXIV (1790),

https://tinyurl.com/49bw8yrt;...................................... 21

U.S. Const., amend. I ......................................................... 11

vi

Vt. Const., Ch. I, § III (1786),

https://tinyurl.com/uw5yspky...................................... 21

Other Authorities

D. Griffith & H. Kuwayama, Does Competition from Charter Schs. Help or Hurt

Traditional Pub. Schs.?, Thomas B.

Fordham Inst. (Aug. 29, 2024),

https://tinyurl.com/4pcxbmh6 ....................................... 9

G. A. Tarr, Church & State in the States, 64

Wash. L. Rev. 73 (1989) ............................................... 21

G. Richmond, Choice, Flexibility, and Accountability Drive Sch. Improvement,

Educ. Next (Jan. 25, 2022),

https://tinyurl.com/yc4uhxcy ......................................... 8

I. Bartrum, The Political Origins of Secular Public Education: The New York

School Controversy, 1840-42, 3 N.Y.U.

J. L. & Liberty 267 (2008) ........................................... 24

L. Jorgenson, The State & the Non-Public

Sch.: 1825-1925 (Univ. of Mo. Press

1987) .......................................................................... 22-24

M. McConnell, Establishment &

Disestablishment at the Founding,

Part I: Establishment of Religion, 44

Wm. & Mary L. Rev. 2105 (2003) ............................... 22

vii

M. Raymond, et al., As a Matter of Fact:

The Nat’l Charter Sch. Study III 2023,

Ctr. for Rsch. on Educ. Outcomes

(2023), https://tinyurl.com/msbeydhf ........................... 9

M. Storslee, Church Taxes & the Original

Understanding of the Establishment

Clause, 169 U. Penn. L. Rev. 111 (2020) .................... 22

Nat’l All. for Pub. Charter Schs., Charter

Schs. 101, https://tinyurl.com/23r89jbw ....................... 7

N. Feldman, Non-Sectarianism Reconsidered, 18 J. L. & Politics 65 (2002) ................................ 24

N. Lopez, Who Attends Charter Schs.?,

Nat’l All. for Pub. Charter Schs. (Nov.

20, 2024), https://tinyurl.com/yfujdds7 ...................... 8-9

Steven K. Green, The Bible, the Sch., and

the Const.: The Clash that Shaped

Modern Church-State Doctrine (Oxford

Univ. Press 2012) ..................................................... 23-24

Understanding Charter Schs. vs. Pub.

Schs., U.S. News & World Rep. (Nov.

14, 2023), https://tinyurl.com/5cmw3ve8 ...................... 8

V. Muñoz, The Original Meaning of the

Establishment Clause & the Impossibility of Its Incorporation, 8 U. Pa. J.

Const. L. 585 (2006) ................................................. 20-21

1

INTEREST OF AMICUS CURIAE 1

Charter School Growth Fund (CSGF) is a national

nonprofit that identifies the country’s best public charter

schools, funds their growth, and helps increase their impact. CSGF makes multi-year, philanthropic investments

in talented education leaders who are building networks

of excellent public charter schools to help expand those

schools’ impact and achieve excellent outcomes for students. CSGF has funded more than 1,600 schools that

serve more than 725,000 students in 32 States, the District

of Columbia, and Puerto Rico.

CSGF knows firsthand how charter schools serve as

hubs for education innovation—whether by implementing

new schooling models or better utilizing technology in the

classroom—tailored to serving their students and families

and to meeting specific community needs. Fostering such

innovation to serve specific communities and student populations requires substantial flexibility for charter schools,

including setting their curriculum and exploring creative

teaching models. By the same token, States must have

flexibility to design their charter-school programs to provide high-quality public education to meet their citizens’

needs. CSGF has a strong interest in any constitutional

limits imposed on States’ and charter schools’ ability to

provide innovative public education for the States’ citizens.

Pursuant to Rule 37.6, amicus curiae affirms that no counsel for

a party authored this brief in whole or in part and that no person other

than amicus curiae or its counsel made a monetary contribution to its

preparation or submission.

1

2

INTRODUCTION

This case concerns the States’ responsibility and ability to provide for public education, and their corresponding authority to decide how best to do it, including whether

and what kinds of charter schools to authorize, fund, and

oversee. The principal arguments of the parties and other

amici address the issue as if the Court must make a choice

between two extremes: the Constitution either demands

religious charter schools or prohibits them. And they

frame that choice as if it turns on whether charter schools

are properly deemed private or public entities (albeit under different standards).

If the Court believes it must follow that course and

make that choice, we fully support Respondent. We support maintaining the current charter-school framework of

providing public education that has served students, families, and communities throughout the country well for the

last three decades. Amicus believes that States can lawfully support religious education in myriad ways while

maintaining a purely secular charter-school program.

But the Court need not see this case as presenting a

choice between two extremes. The Court does not need to

hold that the First Amendment would prohibit a State

from designing a framework, inspired by the success of

charter schools, that includes religious schools to hold that

the First Amendment does not demand that it do so. As

with other government programs, States must have considerable leeway to design their public-education system.

That leeway should include deciding whether to include

religious education within their charter-school system—

regardless of whether those schools are considered public

or private entities for these purposes and whether the

State could make a different choice. The concept of religious charter schools could fit within the “play in the joints”

3

between the Free Exercise and Establishment Clauses.

Because Oklahoma acted within its discretion to design a

charter-school program that does not provide for religious

charter schools, this Court should affirm.

SUMMARY OF ARGUMENT

This Court’s recent decisions confirm that while States

are not required to fund private religious education, they

may not exclude an independent private school from an

otherwise available government benefit based solely on its

religious status or exercise. Carson v. Makin, 596 U.S.

767 (2022); see Espinoza v. Mont. Dep’t of Revenue, 591

U.S. 464 (2020); Trinity Lutheran Church of Colum., Inc.

v. Comer, 582 U.S. 449 (2017). None of these cases, however, involved charter schools established, funded, and

overseen within state-sponsored programs to provide

public education that is free and open to all.

Although charter schools are often run by private

organizations, the schools themselves offer a public education and meaningfully differ from independent private

K-12 schools, like those in Carson and Espinoza, or private preschool and daycare centers like the one in Trinity

Lutheran. Charter schools accept all comers and charge

nothing to students and their families. And while they

enjoy flexibility to innovate, they remain accountable to

the State with respect to their curriculum, operations, and

results. The Court should not extend its private-school

precedents to the distinct charter-school context but

should recognize instead that when a State decides to provide public education to its citizens through a charterschool program, it has latitude to include only secular

charter schools.

I. Charter schools benefit students, families, and communities by providing free, public education that is open

4

to all. They occupy a unique position within public education because of their flexibility to innovate while still being

accountable to their government sponsor. That flexibility

makes charter schools well-positioned to adopt a variety

of education approaches to foster student success. And

the results are clear. Charter schools boost education outcomes compared to their district-school counterparts

while serving more students from diverse backgrounds.

To date, no State in the country has attempted to construct a charter-school program that includes religious

charter schools. As Respondent well explains, there are a

host of potential obstacles to such an approach. But at the

same time, amicus recognizes the benefits of religious education. We celebrate its inclusion among a parent’s

choices. And we can understand why a State might decide,

as a policy matter, to deploy the lessons of the charterschool movement to provide for religious education that

follows the same principles and standards of excellence

that make charter schools thrive.

II.A. The Constitution should not be read to mandate

that approach. States have a responsibility to design and

operate programs that provide for the public education of

their citizens. As the designers and funders of government programs that approve, fund, and oversee charter

schools, States must have latitude to define their programs’ contours, including by defining the characteristics

of the charter schools their programs include (or exclude).

Allowing States to decide the scope of their charterschool programs is fully consistent with this Court’s jurisprudence. This Court has long recognized that in both designing and implementing government initiatives—like

administering spending programs, creating limited-public

forums, and pursuing other public concerns—States need

not provide for or include all alternatives. States “can,

5

without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

570 U.S. 205, 217 (2013) (AOSI). Such programs may further activities that a State wants to promote—like robust

public education—while not providing for every alternative means of promoting that end.

Applying those principles here, States have leeway to

decide how to best structure public-education programs,

including when providing public education through charter schools. Designing such a charter-school program is

distinct from extending a generally available government

benefit like a tax credit or scholarship fund to independent

private schools. In the States where they operate (nearly

all of them), charter schools are a critical component of the

State’s public-education system—free, public, and open to

all. The important constitutional limitations recognized in

Trinity Lutheran, Espinoza, and Carson for providing

generally available government benefits to independent

private schools should not be reflexively extended to a

State’s design of its charter-school program.

II.B. If a State chooses to operate a charter-school program in providing public education to its citizens, the First

Amendment should not be understood to require the State

to include religious charter schools—for three reasons.

First, history and tradition support allowing States to

decide whether and how to establish and authorize religious charter schools. In Espinoza, the Court recognized

that States took varying approaches to religious schools

from the Founding through Reconstruction. That variation is key, suggesting that States perceived freedom to

legislate in this area. Drawing on that history and

6

tradition here favors affording States similar leeway on

the issue of religious charter schools.

Second, allowing States to operate purely secular charter-school programs does not penalize religion or prohibit

religious education. No student or family is barred from

getting a public education at a charter school—nor is any

compelled to attend one. Similarly, private entities are not

prohibited from operating private religious schools, and

parents are not forbidden from sending their children to

them. And, critically, maintaining a secular charter-school

program does not preclude a State from operating other

programs that benefit religious schools.

Third, compelling non-discriminatory reasons support

a State’s decision to design a purely secular charter-school

program. Providing for and supporting religious education is a public good. A State could well decide that creating a charter-school framework that included such education choice could add value to a State’s public-education

system. But there are also compelling reasons why a State

may decide that religious schools should operate independently of its public-education system. Continuing government oversight of religious charter schools would present a host of complex issues that lead a State to find other

ways to support religious education. States may have reasonable concerns about excessive entanglement, given

that charter schools have a closer connection to the State

than independent private schools.

The Court can

acknowledge the lawfulness of that choice without foreclosing a State, in the future, from making a different one.

Because the Constitution grants Oklahoma leeway

to decide not to include religious schools within its charterschool framework—whether another State could constitutionally include them—the Court should hold that

7

Oklahoma has constitutionally exercised its prerogative

here and affirm the judgment below.

ARGUMENT

I. Charter Schools Benefit Students, Families, and

Communities by Providing Free Public Education

with Flexibility to Innovate.

Charter schools have become a critical component of

most States’ public education. These schools diversify the

options that parents have for educating their children.

They often boost educational outcomes for a diverse range

of students and have flexibility to adopt a variety of educational approaches to better serve students and families.

And for decades, charter schools and private religious

schools have co-existed in communities across the country,

striving to educate students and serve more families.

No State has yet attempted to combine charter schooling and religious education. The creation of religious charter schools is fraught with practical complexities. But

designing a charter-school construct that provided for religious education would be yet another innovation that

could add diversity of educational opportunity that could

appeal to some students and families. The Court need not

foreclose that possibility.

A. Charter schools provide high-quality public education and enhance outcomes for a diverse

range of students.

Charter schools now serve millions of students annually in the United States. See Nat’l All. for Pub. Charter

Schs., Charter Schs. 101, https://tinyurl.com/23r89jbw.

These schools provide high-quality public education that

promotes the success of students from all backgrounds.

The results are unmistakably positive.

8

Four traits are critical to any charter school. Charter

schools must (1) be free, public, and open to all; (2) undergo a rigorous and fair authorization process by the

State; (3) be assessed and held accountable for their performance by the State; and (4) comply with relevant state

and federal regulations on human resources in education.

Beyond those four traits, charter schools have substantial “flexibility and autonomy to design classroom instruction to best serve their community’s needs.” Charter

Schs. 101, supra. They employ a variety of approaches to

educate students not just in foundational subjects but also

in STEM, foreign language, the arts, and social-emotional

learning. Indeed, charter schools come in many forms.

While “[s]ome schools may focus on arts or theater,” other

schools “may emphasize science, technology, engineering,

and mathematics.” J. Fischler & C. Claybourn, Understanding Charter Schs. vs. Pub. Schs., U.S. News & World

Rep. (Nov. 14, 2023), https://tinyurl.com/5cmw3ve8.

This flexibility does not come at the expense of

accountability to the State. Charter schools “can tailor

their curriculum, academic focus, staffing ratios, discipline

policies and other matters,” but they remain accountable

to the government body that authorized them. Id.; see G.

Richmond, Choice, Flexibility, and Accountability Drive

Sch. Improvement, Educ. Next (Jan. 25, 2022) (discussing

ways charter schools have flexibility and accountability),

https://tinyurl.com/yc4uhxcy. That accountability helps

maintain high standards among charter schools and can

result in defunding or closure because of low performance.

With this balance, charter schools achieve remarkable

successes for their students, who often reflect more racial

and socioeconomic diversity than traditional public

schools. See N. Lopez, Who Attends Charter Schs.?, Nat’l

All. for Pub. Charter Schs. (Nov. 20, 2024), https://tin

9

yurl.com/yfujdds7. A 2023 study concluded that “the typical charter school student in [the study’s] national sample

had reading and math gains that outpaced their peers in

the traditional public schools … they otherwise would

have attended.” M. Raymond, et al., As a Matter of Fact:

The Nat’l Charter Sch. Study III 2023, at 5, Ctr. for Rsch.

on Educ. Outcomes (2023), https://tinyurl.com/msbeydhf.

These results “represent[] accelerated learning gains for

tens of thousands of students across the country” and

show that “it is possible to dramatically accelerate growth

for students who have traditionally been underserved by

traditional school systems.” Id. 2 And beyond their own

student populations, charter schools often have positive

spillover effects that result in increased achievement for

students in traditional public schools. See D. Griffith & H.

Kuwayama, Does Competition from Charter Schs. Help or

Hurt Traditional Pub. Schs.?, Thomas B. Fordham Inst.

(Aug. 29, 2024), https://tinyurl.com/4pcxbmh6.

In short, charter schooling in the United States

has materially improved public education across the country. In doing so, charter schools have served students

and families in the same communities where private religious schools also operate and serve their own student

populations.

B. A State could construct a charter-school framework that provides for religious education.

To date, no State has attempted to construct a charterschool framework that authorizes, funds, and provides

The CSGF-funded schools included in the study helped drive

these results. The study’s authors found that “the strength of CSGF

student results cannot be ignored.” Raymond, As a Matter of Fact,

supra, at 108.

2

10

continuing oversight of religious charter schools. As Respondent explains, serious obstacles stand in the way of

doing so. See Resp. Br. 41-46. Still, amicus recognizes

that religious education benefits students and aligns with

families’ desires for their children’s education. As a policy

matter, a State could employ the lessons of the charterschool movement to provide for the creation of publicly

funded high-performing religious schools.

A charter school that incorporates religious education

would diversify the public education offered by a State, allowing the State to give families and students a mosaic of

diverse school choices. And just like course offerings in

STEM, the arts, and foreign language can all play important roles in developing well-rounded and successful

students, so too could religious education help students

develop into multifaceted and well-developed citizens. Religious education may also be desirable to parents who

wish to have their children educated in an environment

consistent with lessons and values being taught at home.

A State thus might seek to further these policy considerations while ensuring that the resulting program used

the same standards and guardrails that make the current

status quo in charter schooling so successful. In other

words, it might seek to permit a school to include a component of religious education while still (1) being free, public, and open to all; (2) undergoing a rigorous and fair authorization process like any other charter school; (3) being

assessed and held accountable for their performance by

the State, up to and including through defunding or closure; and (4) complying with state and federal regulations

on human resources in education. In this way, a State

could construct a charter-school framework that increased the diversity of high-performing school choices

11

available to parents without sacrificing the charter-school

principles that make these programs thrive.

II. The Constitution Need Not Mandate a Uniform National Approach to Religious Charter Schools.

The First Amendment, as incorporated through the

Fourteenth Amendment, prohibits States from enacting

laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const., amend. I. As

the Court has recognized, these Religion Clauses often

work in tandem. The arguments in this case have largely

assumed they do so here—either religious charter schools

must be permitted under the Free Exercise Clause and

would not violate the Establishment Clause, or vice versa.

But “there is ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause

compels.” Trinity Lutheran, 582 U.S. at 458 (quoting

Locke v. Davey, 540 U.S. 712, 718 (2004)). “In other words,

there are some state actions permitted by the Establishment Clause but not required by the Free Exercise

Clause.” Locke, 540 U.S. at 718-19. And the only question

the Court must answer in this case is whether designing a

purely secular charter school program violates the Free

Exercise Clause.

It does not violate the Free Exercise Clause to include

only secular schools in a State’s charter-school program,

even if it would not violate the Establishment Clause to

design a new charter-school framework that included religious schools. Charter schools are authorized, publicly

funded, and overseen through programs that States design and administer. States must have considerable latitude in defining the contours and contents of those programs, including by broadening or limiting the types of

charter schools that may be established within them.

12

History, tradition, and reason show that the State has latitude whether to include religious schools in its charterschool program. As Respondent puts it, the “play in the

joints between the Religion Clauses permits States to

maintain strictly secular public schools, if they so choose.”

Resp. Br. 24.

A. States must have latitude to choose among various alternatives in providing public education.

Providing public education through a charter-school

program that best serves the needs of students and families involves considering varying alternatives, including

whether to authorize religious charter schools. A State

may select among these alternatives to achieve valid policy objectives in administering its public-education programs, even if the choice means some putative charter

schools will not be authorized under the program.

1. In numerous contexts, this Court has recognized that the Constitution affords States

substantial latitude to design and implement

government programs.

The Court has recognized in several lines of First

Amendment decisions that in designing and implementing

programs to carry out government functions, a government need not provide for all alternatives. In implementing a spending program, for example, the government can

set its own spending priorities, even if doing so necessarily

means government funds will support some activities but

not others. In a similar vein, a government can create and

operate a limited public forum, even though, by definition,

that forum does not encompass all possible groups or issues. The Court has also extended this principle to state

laws regulating how public-sector unions can spend certain funds. Together, these cases stand for the proposition

13

that the government has leeway to design and implement

its programs, and the mere fact that a program is not allinclusive does not necessarily mean that the government

has penalized or burdened constitutional rights. Each line

of cases is discussed in turn.

When States enact spending programs, they “have

wide latitude to set spending priorities,” “[s]o long as legislation does not infringe on other constitutionally protected rights.” Nat’l Endowment for the Arts v. Finley,

524 U.S. 569, 587-88 (1998). In exercising this discretion,

a State “can, without offending the Constitution, selectively fund certain programs to address an issue of public

concern, without funding alternative ways of addressing

the same problem.” AOSI, 570 U.S. at 217; see Rust v.

Sullivan, 500 U.S. 173, 193 (1991) (articulating a similar

standard); cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533,

543 (2001) (citing Rust for the proposition that when the

government “establishes a subsidy for specified ends,”

“certain restrictions may be necessary to define the limits

and purposes of the program”). Indeed, a State “may allocate competitive funding according to criteria that would

be impermissible were direct regulation of speech or a

criminal penalty at stake.” Finley, 524 U.S. at 587-88.

Similarly, for limited public forums, the Court has recognized that “[n]othing in the Constitution requires the

Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property.” Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 799-800 (1985). The “defining

characteristic of limited public forums,” after all, is that

“the State may reserve them for certain groups” and may

exclude those who are “not a member of the class of speakers for whose especial benefit the forum was created.”

Christian Legal Soc’y Chapter of the Univ. of Cal.,

14

Hastings Coll. of Law v. Martinez, 561 U.S. 661, 681 (2010)

(internal quotation marks and alterations omitted); see Velazquez, 531 U.S. at 543 (“When the government creates a

limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program.”).

Once the government opens a limited public forum, it may

operate it according to “the lawful boundaries it has itself

set.” Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 829 (1995).

The Court has extended these same principles to state

programs allowing public-sector unions to collect fees and

dues but conditioning how the money may be spent. In

Davenport v. Washington Education Ass’n, the State of

Washington enacted a framework allowing the creation of

public-sector unions and permitting those unions to collect

agency shop fees from nonmember-employees. 551 U.S.

177, 181-82 (2007); see id. at 181 (noting the National Labor Relations Act “leaves States free to regulate their labor relationships with their public employees”). By statute, however, the unions could not use the fees to make

campaign contributions, influence an election, or operate

a political committee without the nonmember-employee’s

consent. Id. at 182. The Court upheld this limitation

against a First Amendment challenge, relying on earlier

spending and limited-public-forum cases. The principle

underlying those cases was “equally applicable” to the limitation that Washington had placed on the use of agency

shop fees. Id. at 188-89. Washington’s law did not “impermissibly distort[] the marketplace of ideas” because the

public-sector unions “remain[ed] as free as any other entity to participate in the electoral process.” Id. at 189-90.

Similarly, in Ysursa v. Pocatello Education Ass’n, the

State of Idaho enacted a law prohibiting “payroll deductions for political purposes” from public employees. 555

15

U.S. 353, 355-56 (2009). The Court found no First Amendment problem with the law, as Idaho did “not suppress political speech but simply decline[d] to promote it through

public employer checkoffs for political activities.” Id. at

361. The ban “plainly serve[d] the State’s interest in separating public employment from political activities.” Id.

As in Davenport, the Court again cited its spending and

limited-public-forum cases, among others, to reach this

conclusion. See id. at 358-61. In Davenport and Ysursa,

the Court sustained government initiatives in which

States designed government programs “for the purpose of

furthering activities that they particularly desired to promote but did not provide a similar benefit for the purpose

of furthering other activities.” Matal v. Tam, 582 U.S. 218,

243 (2017) (plurality opinion of Alito, J.). In choosing

among available alternatives, neither State offended the

Constitution.

Several Members of this Court have recognized that

these same principles may apply more broadly beyond the

contexts in which they arose. In Matal v. Tam, a plurality

left open whether “a broader doctrine” based on “‘government-program’ cases” would be an appropriate framework to “analyz[e] free speech challenges to provisions of

the Lanham Act” concerning federal trademark protection. Id. at 241, 244 n.16 (plurality opinion of Alito, J.). In

Iancu v. Brunetti, several Justices again expressed similar interest in extending or applying the reasoning of

these First Amendment cases involving government initiatives. See 588 U.S. 388, 401 (2019) (Roberts, C.J., concurring in part and dissenting in part) (agreeing that refusal

to register certain trademarks did not violate the First

Amendment when “[w]hether such marks can be registered does not affect the extent to which their owners may

use them,” “[n]o speech is being restricted[, and] no one is

16

being punished”); id. at 422-24 (Sotomayor, J., concurring)

(discussing cases involving “government initiatives” and

explaining no First Amendment issue arose “in the limited-forum and government-program cases” where “some

speakers benefit[ed], but no speakers [were] harmed”).

So too for a case decided just last Term. See Vidal v. Elster, 602 U.S. 286, 331-33 (2024) (Sotomayor, J., concurring).

2. These same principles should apply to a

State’s provision of public education

through charter schools.

The Court should extend the logic of its governmentinitiative and limited-public-forum cases to States’ provision of public education through charter schools.

It is this Court’s “oft-expressed view that the education of the Nation’s youth is primarily the responsibility of

parents, teachers, and [the] state.” Hazelwood Sch. Dist.

v. Kuhlmeier, 484 U.S. 260, 273 (1988); see Okla. Const.,

Art. 13, § 1 (“The Legislature shall establish and maintain

a system of free public schools wherein all the children of

the State may be educated.”). The States “hav[e] a high

responsibility for education of [their] citizens,” and

“[p]roviding public schools ranks at the very apex of the

function of a state.” Wisconsin v. Yoder, 406 U.S. 205, 213

(1972). Public education is a “paramount responsibility.”

Id.

Given that weighty responsibility, States must have

corresponding authority to define the contours of their

public-education programs. Schools “enjoy a significant

measure of authority over the types of officially recognized activities in which their students participate.”

Christian Legal Soc’y, 561 U.S. at 686-87 (internal quotation marks omitted). Indeed, this Court has repeatedly

17

cautioned against second-guessing what constitutes sound

education policy, see id. at 686 (collecting cases), subject

to constitutional limits, and has even said that “First

Amendment rights must be analyzed in light of the special

characteristics of the school environment,” Widmar v.

Vincent, 454 U.S. 263, 267 n.5 (1981) (internal quotation

marks omitted). States’ latitude in designing and implementing public education allows for state-by-state experimentation and innovation to build excellent public-education systems that serve the needs of students and families.

The nation’s federal system not only allows such variation

but is built for it. See New State Ice Co. v. Leibmann, 285

U.S. 262, 311 (1932).

Nothing in this Court’s decisions forecloses States’ latitude in designing their public-education system to include

only secular charter schools. In Carson, Espinoza, and

Trinity Lutheran, this Court reaffirmed that “disqualifying otherwise eligible recipients from a public benefit

‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most

exacting scrutiny.’” Espinoza, 591 U.S. at 475 (quoting

Trinity Lutheran, 582 U.S. at 462); see Carson, 596 U.S.

at 780. So, while States have no obligation to provide government aid to independent private schools, “[o]nce a

State decides to do so, it cannot disqualify some private

schools solely because they are religious.” Espinoza, 591

U.S. at 487.

But none of these cases directly considered whether

the States’ decision could be justified by the principles,

discussed above, that give States a significant measure of

freedom in designing and implementing government programs. Cf. Carson, 596 U.S. at 784 (citing AOSI, 570 U.S.

at 215, and Velazquez, 531 U.S. at 547). And there are

good reasons to treat a State’s design of a charter-school

18

program differently than the generally available benefits

considered in those cases.

A charter school’s inclusion in a State’s public-education program does not amount to an independent private

entity’s receipt of a government benefit. See Plyler v. Doe,

457 U.S. 202, 221 (1982) (explaining public education is not

“merely some governmental ‘benefit’ indistinguishable

from other forms of social welfare legislation”). Operating

a charter school within a State’s charter-school program

is entirely different than simply accepting tuition assistance provided to parents by the State. Moreover, charter

schools are not like independent private schools. In Carson, the Court recognized “numerous and important” differences between the private schools at issue in that case

and public schools. 596 U.S. at 783. Those same differences also distinguish charter schools from independent

private schools.

To begin with the “most obvious,” Carson identified

that independent private schools are different from public

schools “by definition because they do not have to accept

all students.” Id. Charter schools, by contrast, do accept

all students—indeed, they obtain authorization from and

collaborate with the State to provide public education

open to everyone. The Court in Carson also noted that

even when States provide tuition assistance, independent

private schools are “often not free” and “charge several

times the maximum benefit” provided by the State. Id.

But as providers of public education, charter schools are

free for students to attend.

The differences do not end with enrollment and tuition.

Carson explained that “the curriculum taught at participating private schools need not even resemble that taught

in the … public schools.” 596 U.S. at 783. In contrast, although charter schools have flexibility in setting their

19

curriculum, the State generally retains some control over

the curriculum and the standards that the curriculum

must meet. Oklahoma is no exception. The contract between the Oklahoma Statewide Virtual Charter School

Board and the St. Isidore of Seville Board of Directors

provides that “[a]ny material change to the program of instruction, curriculum and other services specified in the

Application or this Contract requires Sponsor approval

prior to the change.” Resp. App. 5a. That contractual provision contains no exception for the State’s oversight over

the religious curriculum.

State-sponsored charter schools are thus different

from independent private schools in key respects. In contrast to private schools, charter schools provide not

merely a “rough equivalent of a … public education,” Carson, 596 U.S. at 785, but a bona fide free, open-to-all, public education. Carson poses no obstacle to applying the

government-program cases to a State’s decisions in constructing public-education programs that authorize, fund,

and oversee charter schools to benefit their citizens.

B. If a State chooses to operate a charter-school

program, it is not bound to include religious

charter schools.

Three considerations support the conclusion that, in

exercising its leeway to provide public education through

a charter-school program, a State may permissibly

choose to include only secular charter schools, even if it

would likewise be permissible to make a different choice.

First, history and tradition support leaving it to States to

decide whether to provide for religious schools in their

charter-school programs. Second, choosing not to include

religious schools in a State’s charter-school program does

not penalize the exercise of religion or prohibit religious

education. And finally, there are compelling, non-

20

discriminatory reasons for a State to provide for only secular charter schools.

1. History and tradition support allowing

States to decide whether to establish religious charter schools.

Over the Nation’s history, States have adopted a

variety of approaches to education. This history and

tradition strongly favor allowing States discretion

whether to authorize religious charter schools as part of

the State’s charter-school program. Cf. Vidal, 602 U.S. at

295-308; id. at 313-16, 319-23 (Barrett, J., concurring in

part); id. at 327-29, 331-33 (Sotomayor, J., concurring in

the judgment).

From the start, States have had competing visions for

the relationship between church and state. During the

Founding era, some States—like Massachusetts, Connecticut, New Hampshire, and Vermont—saw religion as

vital to good and virtuous citizenship and provided public

funding to support religious institutions and clergy. See V.

Muñoz, The Original Meaning of the Establishment

Clause & the Impossibility of Its Incorporation, 8 U. Pa.

J. Const. L. 585, 605-08, 611 (2006). Other States—like

Virginia, New York, and Rhode Island—took a more separationist approach, believing that religion did not need

government financial support or influence to flourish. Id.

at 608-12.

But in hashing out church-state relations, “there was

considerable variation in the arrangements adopted in the

various states.” G. A. Tarr, Church & State in the States,

64 Wash. L. Rev. 73, 85 (1989). In fact, “[b]etween the

Declaration of Independence and the ratification of the

Constitution … each of the original thirteen states reconsidered the relationship between church and state within

21

its borders.” Id. Some States enacted constitutional prohibitions against state religious establishments, others

moved from single to multiple establishments, and yet others “liberalized their establishments by permitting citizens to support the churches of their choice.” Id. While

different in their particulars, the “overall direction” was

toward disestablishment—a process that was underway

by the 1780s and continued into the nineteenth century.

Id. at 86.

State constitutional provisions reflect this shift. For

example, constitutions dating between 1776 and 1792

in Maryland, North Carolina, Pennsylvania, and Vermont

all provided in similar language that no person could

be compelled “to contribute to the erection or support

of any place of worship or to the maintenance of any ministry.” Md. Const., Art. I, § 1 (1792), https://tinyurl.com/2u

x7p4tb; see N.C. Const., Art. XXXIV, https://tinyurl.com/

49bw8yrt; Pa. Const., Art. IX, § III (1790), https://tiny

url.com/3mk7x584; Vt. Const., Ch. I, § III (1786), https://

tinyurl.com/uw5yspky. And Georgia and New Hampshire

discussed religious instruction specifically. In Georgia’s

Constitution of 1777, the same provision containing a free

exercise clause also states that persons “shall not, unless

by consent, support any teacher or teachers except those

of their own profession.” Ga. Const., Art. LVI (1777), http

s://tinyurl.com/vpz4pmnk. New Hampshire’s 1783 Bill of

Rights provided that no one could be “compelled to pay

towards the support of the teacher or teachers of another

persuasion, sect or denomination.” N.H. Bill of Rights,

§ VI (1783), https://tinyurl.com/yvmpjt89.

These competing visions for the relationship between

church and state and early trends toward disestablishment were reflected in the provision of education. To be

sure, at the Founding, “there was no such thing as public

22

education in the modern sense.” M. McConnell, Establishment & Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105,

2171 (2003). Even as States became more involved in education, “there was no sharp distinction between public

and private, religious and secular schools, until well into

the nineteenth century.” Id. A “public” school “meant

only that schools were open to the general public.” Id.

Initially, education that included religious components

enjoyed widespread financial support from governments.

See M. Storslee, Church Taxes & the Original Understanding of the Establishment Clause, 169 U. Penn. L.

Rev. 111, 182-83 (2020). This Court has recognized that

“[i]n the founding era and early 19th century, governments provided financial support to private schools, including denominational ones.” Espinoza, 591 U.S. at 480.

States encouraged this policy in their constitutions and

statutes, “[l]ocal governments provided grants to private

schools, including religious ones, for the education of the

poor,” and even States that banned government support

for clergy still “provided various forms of aid to religious

schools.” Id. at 480-81; see L. Jorgenson, The State & the

Non-Public Sch.: 1825-1925, at 4 (Univ. of Mo. Press 1987).

Governments also supported religious schools after the

Civil War. As the Court is aware, “Congress spent large

sums on education for emancipated freedmen, often by

supporting denominational schools in the South through

the Freedmen’s Bureau.” Espinoza, 591 U.S. at 481.

Between the Founding and Reconstruction, however,

as States began to increase their involvement in education,

they simultaneously shifted public funding away from religious schools. Aid to denominational schools peaked in

about 1820, and then gradually diminished. See Jorgenson,

The State & the Non-Public Sch. 4.

23

Developments in New York provide an instructive case

study. In the late 1700s, New York had a variety of schooling options, including boarding schools, denominational

charity schools, and town-operated schools. See Steven K.

Green, The Bible, the Sch., and the Const.: The Clash that

Shaped Modern Church-State Doctrine 46 (Oxford Univ.

Press 2012). In 1795, the State appropriated $50,000 annually for five years for cities and towns to use in support

of existing schools, subject to local officials’ discretion. Id.

New York City used its share to support denominational

charity schools. Id.

From 1800 to 1805, however, the State did not reauthorize the funding. Id. In 1805, the Free School Society

was founded and offered a religious but nonsectarian curriculum. See id.; Jorgenson, The State & the Non-Public

Sch. 14. As it gained popularity, the Free School Society

received greater amounts of available public funding for

schools. Green, The Bible, the Sch., and the Const. 46-47.

By 1825, it boasted eleven elementary schools. Id. at 47;

see Jorgenson, The State & the Non-Public Sch. 14 (explaining the Free School Society “was to all intents and

purposes the public school system of the City of New York

during the first half of the nineteenth century”).

In the early 1820s, the Free School Society successfully opposed public funding for a denominational charity

school operated by Bethel Baptist Church. The church

had in 1820 founded a school and received public funds.

See Green, The Bible, the Sch. & the Const. 47. In 1822,

the church received a state grant to construct a school

building and potentially open additional schools. Id. The

Free School Society viewed the development as “a threat

to its financial well-being, the nonsectarian model, and its

long-range goals,” and petitioned the legislature to repeal

the grant. Id. The legislature deferred to the New York

24

City Common Council. In 1825, the Free School Society

prevailed when the Common Council “voted to end the

funding of religious charity schools. After 1825, only those

schools of the Society and a handful of nondenominational

charity schools were eligible to receive public school funds.”

Id. at 49; I. Bartrum, The Political Origins of Secular

Public Education: The New York School Controversy,

1840-42, 3 N.Y.U. J. L. & Liberty 267, 287-91 (2008) (describing the Free School Society’s origins and this controversy).

During the same period, more than 30 States adopted

so-called “no-aid” provisions. Espinoza, 591 U.S. at 480.

Michigan enacted the first of these provisions in 1835.

More States followed in the 1840s and 1850s. Although noaid provisions are now often associated with the failed

Blaine Amendment, “[f]orty-five percent of the state nofunding provisions were drafted before the debate over the

Blaine Amendment.” S. Green, The Insignificance of the

Blaine Amendment, 2008 B.Y.U. L. Rev. 295, 327–28

(2008) (emphasis added). By the last quarter of the nineteenth century, “states uniformly—even where no state

Blaine existed—declined to fund religious education directly,” instead providing direct funding only to public

schools. N. Feldman, Non-Sectarianism Reconsidered,

18 J. L. & Politics 65, 113-14 (2002).

While historical practice during this period may not establish a “tradition against state support for religious

schools,” it powerfully supports the Court’s recognition

“that the historical record is complex.” Espinoza, 591 U.S.

at 482-83 (internal quotation marks and emphasis omitted).

And for present purposes, that complexity is the point.

“[G]overnments over time have taken a variety of approaches to religious schools.” Id. at 483. The Court

should draw on that history and tradition to afford States

25

similar leeway in deciding whether to establish and

fund religious charter schools within their charter-school

programs.

2. Allowing States to operate secular charterschool programs does not penalize religion

or prohibit religious education.

Against the backdrop of that history and tradition, a

charter-school program’s unique role in public education

makes clear that States do not discriminate against religious education simply by operating secular charterschool programs. This Court’s “now-familiar refrain” is

that “[t]he Free Exercise Clause protects against laws

that ‘impose[] special disabilities on the basis of … religious status.’” Trinity Lutheran, 582 U.S. at 461 (quoting

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.

520, 533 (1993)). But just as the existence and funding

of traditional, secular public schools do not penalize religion or forbid religious education, neither does a secular

charter-school program.

A State that creates a charter-school program and

chooses not to allow religious schools within that program

does not burden the free exercise of religion. Religious

observers are neither excluded from nor compelled to attend state-sponsored charter schools. No student or family is prohibited from getting a public education at a charter school “because of their faith, or lack of it.” Everson v.

Bd. of Educ. of Ewing Twp., 330 U.S. 1, 16 (1947). No student faces a choice in which “to pursue [charter-school education], he would have to give up” his religion. Trinity

Lutheran, 582 U.S. at 459 (discussing McDaniel v. Paty,

435 U.S. 618 (1978)). And those who practice religion are

not denied “an equal share of the rights, benefits, and privileges enjoyed by other citizens” with respect to accessing

high-quality, state-sponsored public education at a

26

charter school. Id. at 460 (quoting Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988)).

Likewise, private entities are not prohibited from operating private religious schools, and parents are not forbidden from sending their students to them. In a secular

charter-school program, the State has simply defined the

contours of one program within its public-education system without purporting to regulate any conduct outside

that program. Cf. AOSI, 570 U.S. at 214-15 (explaining

“the relevant distinction” is between “conditions that define the limits of the government … program” and those

that regulate conduct “outside the contours of the program itself”).

Nor does a State’s creation of a secular charter-school

program preclude a State from operating other programs

in which religious schools may participate or from which

they can benefit. Oklahoma both operates a secular charter-school program and provides several forms of vouchers and need-based scholarships to help parents send

their children to private schools, including religious

schools. See Resp. Br. 6.

One could also readily imagine other creative frameworks that provide a secular charter-school program

while allowing optional religious instruction through

the same. A State might consider, for example, an approach that awards a charter for secular public education

during the school day but does not forbid religious instruction in optional programs after school, especially when

those optional programs are supported by outside funding.

In analogous circumstances, the Court has already held

that optional religious programming with a tangential connection to secular public education does not violate the Religion Clauses. See Zorach v. Clauson, 343 U.S. 306 (1952).

27

3. Compelling, non-discriminatory reasons

support an exclusively secular public-education system.

Finally, a constitutional rule that permits States to authorize only secular charter schools is supported by compelling, non-discriminatory reasons for that choice.

To be sure, religious charter schools could be valuable

additions to a State’s public-education offerings. See supra, Part I.B. Charter schools’ success is driven in part

by their ability to employ a variety of education approaches to meet the particular needs of students and

families in their communities. A charter school that incorporates religious education could enhance students’ personal and academic development, just as training in

STEM, the arts, and foreign language does. In addition,

the availability of religious charter schools could broaden

parents’ ability to direct the upbringing of their children.

See Wisconsin, 406 U.S. at 214 (noting “the traditional interest of parents with respect to the religious upbringing

of their children” (internal quotation marks omitted)).

But there are compelling, non-discriminatory reasons

why, to date, every State to establish a charter-school program has decided that religious schools—even if eligible

for state subsidies—should operate independently of the

State’s public-education system. Respondent persuasively catalogs a number of these reasons. See Resp. Br.

41-46.

A State’s relationship to a charter school does not end

once the school is authorized and established but continues through ongoing oversight of the schools. A State may

well conclude that the complexities of State involvement

in religious charter schools, including overseeing (or at

least having a veto power on) religious curriculum and the

28

hiring and firing of teachers and staff based on the school’s

religious tenets, may be more than a State wishes to take

on. See, e.g., Our Lady of Guadalupe Sch. v. MorrisseyBerru, 591 U.S. 732, 759 (2020) (noting “Catholic elementary school teachers” are “their students’ primary teachers of religion” (emphasis omitted)); id. at 760 (describing

how “many primary school teachers tie their instruction

closely to textbooks, and many faith traditions prioritize

teaching from authoritative texts,” and discussing a

teacher who “prayed with her students, taught them prayers, and supervised the prayers led by students”); id. at

761 (explaining that “[i]n hiring a teacher to provide religious instruction, a religious school is very likely to try to

select a person who” is a practicing member of the employer’s religion, but identifying whether someone is a

“‘co-religionist’ will not always be easy”).

A State may also reasonably be concerned about excessive entanglement with religion, especially given that

charter schools provide public education and have a closer

connection to the State than independent private schools

do. See Carson, 596 U.S. at 787 (rejecting an argument

that would “raise serious concerns about state entanglement with religion”). Finally, State legislatures should be

able to decide whether including religious charter schools

is consistent with the preferences of the citizens in that

State. If it is not, a legislature might reasonably conclude

that it should not act inconsistent with voter preferences

by using public funds to establish religious charter schools.

* * *

Oklahoma created a charter-school program that, as a

condition of the program, requires that charter schools be

secular. The program does not forbid religious education

outside the program and does not compel attendance at

charter schools. In designing its program this way,

29

Oklahoma did not violate the Free Exercise Clause, even

if the Establishment Clause would allow a different choice.

CONCLUSION

For the foregoing reasons, the judgment of the Supreme Court of Oklahoma should be affirmed.

Respectfully submitted,

Jonathan Y. Ellis

Counsel of Record

MCGUIREWOODS LLP

888 16th Street N.W.

Suite 500

Washington, D.C. 20006

(202) 828-2887

jellis@mcguirewoods.com

Kathryn M. Barber

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219

H. Brent McKnight, Jr.

MCGUIREWOODS LLP

501 Fayetteville St., Suite 500

Raleigh, NC 27601

APRIL 7, 2025