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

Nos. 24-394 & 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 FOR SCHOLARS OF THE RELIGION CLAUSES

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

MARTIN S. LEDERMAN

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9937

DONALD B. VERRILLI, JR.

Counsel of Record

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500 E

Washington, DC 20001

(202) 220-1100

Donald.Verrilli@mto.com

Counsel for Amici Curiae Scholars of the Religion Clauses

i

TABLE OF CONTENTS

Page

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

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................ 10

I.

II.

If St. Isidore is an Instrumentality of the

State, both Oklahoma law and the

Establishment Clause Prohibit it from

Inculcating Students in the Doctrines of a

Particular Religion. ....................................... 10

A.

St. Isidore’s comprehensive inculcation

of religious doctrine would violate

Oklahoma statutory law. ................... 10

B.

Even if Oklahoma law did not prohibit

such inculcation of religion in a public

school, the federal Establishment

Clause would. ..................................... 13

If St. Isidore were Deemed a Private School

Rather than an Instrumentality of the State,

the Establishment Clause Would Prohibit

Oklahoma from Establishing, Sponsoring and

Subsidizing Such a School. ........................... 16

A.

Prohibited Establishment of a

Religious Institution. ......................... 17

B.

Prohibited Sponsorship and Approval

of a Religious School. .......................... 19

ii

C.

Prohibited Direct Financial

Subsidization of Religious

Education. ........................................... 21

CONCLUSION ........................................................ 30

iii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) ........................................... 15

Agostini v. Felton,

521 U.S. 203 (1997) ........................................... 22

Arkansas v. Texas,

346 U.S. 368 (1953) ............................................. 6

Biden v. Nebraska,

600 U.S. 477 (2023) ............................................. 7

Board of Ed. of Central School Dist. No. 1 v.

Allen,

392 U.S. 236 (1968) ........................................... 22

Bowen v. Kendrick,

487 U.S. 589 (1988) ..................................... 21, 25

Bowen v. Roy,

476 U.S. 693 (1986) ....................................... 3, 12

Carson v. Makin,

596 U.S. 767 (2022) ......................... 4, 5, 7, 27, 29

Department of Transportation v. Association

of American Railroads,

575 U.S. 43 (2015) ..................................... 2, 9, 16

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................................... 14

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Epperson v. Arkansas,

393 U.S. 97 (1968) ............................................. 15

Espinoza v. Montana Department of

Revenue,

591 U.S. 464 (2020) ....................... 4, 5, 27, 28, 29

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

330 U.S. 1 (1947) ....................... 13, 14, 18, 23, 24

Greater Heights Acad. v. Zelman,

522 F.3d 678 (6th Cir. 2008) ............................... 7

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

333 U.S. 203 (1948) ................................. 3, 14, 15

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................... 12, 23, 25

Larson v. Valente,

456 U.S. 228 (1982) ....................................... 2, 13

Lebron v. National R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................. 6, 7, 8, 9

Lee v. Weisman,

505 U.S. 577 (1992) ........................................... 14

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............................................. 3

Lyng v. Northwest Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) ........................................... 12

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Marks v. United States,

430 U.S. 188 (1977) ........................................... 22

Mitchell v. Helms,

530 U.S. 793 (2000) ................................ 22, 25-29

Our Lady of Guadalupe Sch. v. MorrisseyBerru,

591 U.S. 732 (2020) ..................................... 16, 19

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ........................................... 16

Rendell-Baker v. Kohn,

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

Rendell-Baker v. Kohn,

641 F.2d 14 (1st Cir. 1981), aff’d, 457

U.S. 830 (1982) .................................................... 4

Rosenberger v. Rector & Visitors of Univ. of

Va.,

515 U.S. 819 (1995) ..................................... 22, 27

Tilton v. Richardson,

403 U.S. 672 (1971) ..................................... 22, 25

Town of Greece v. Galloway,

572 U.S. 565 (2014) ........................................... 23

Trinity Lutheran Church v. Comer,

582 U.S. 449 (2017) ........................................... 26

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Trump v. Hawaii,

585 U.S. 667 (2018) ........................................... 13

United States v. Ballard,

322 U.S. 78 (1944) ............................................. 13

Walz v. Tax Comm’n of City of New York,

397 U.S. 664 (1970) ........................... 3, 17, 21, 29

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ............................. 5, 7, 27, 29

Zorach v. Clauson,

343 U.S. 306 (1952) ........................................... 15

Federal Statutes and Regulations

20 U.S.C. 7221i(2) ..................................................... 8

20 U.S.C. 7221i(2)(B) ................................................ 8

Exec. Order No. 13,279, 67 Fed. Reg. 77,141

(2002) ................................................................. 25

Exec. Order No. 13,559, 75 Fed. Reg. 71,319

(2010) ................................................................. 26

85 Fed. Reg. 82,037 (2020) ..................................... 26

88 Fed. Reg. 2395 (2023) ........................................ 26

State Statutes and Regulations

Okla. Stat. tit. 70, § 3-132.1(A) .......................... 5, 19

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Okla. Stat. tit. 70, § 3-132.1(I) ............................... 19

Okla. Stat. tit. 70, § 3-132.2(A) ................................ 5

Okla. Stat. tit. 70, § 3-132.2(A)(3) .......................... 19

Okla. Stat. tit. 70, § 3-132.2(C)(1) ............................ 6

Okla. Stat. tit. 70, § 3-132.2(C)(1)(b)........................ 5

Okla. Stat. tit. 70, § 3-134(B)(2) ............................... 8

Okla. Stat. tit. 70, § 3-134(C) ............................. 4, 18

Okla. Stat. tit. 70, § 3-134(I)(2) .............................. 19

Okla. Stat. tit. 70, § 3-136(A)(2) ............................. 10

Okla. Stat. tit. 70, § 3-136(A)(9) ............................... 7

Okla. Stat. tit. 70, § 3-137(D) ................................... 7

Okla. Stat. tit. 70, § 3-137(F) ................................... 7

Okla. Stat. tit. 70, § 3-137(H) ................................... 7

Okla. Stat. tit. 70, § 3-142(A) ............................. 7, 21

Okla. Stat. tit. 70, § 11-101 .................................... 10

Okla. Admin. Code § 777:10-3-3(c)(1) .................... 20

Okla. Admin. Code § 777:10-3-3(c)(2) .................... 20

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

Thomas E. Buckley, Church and State in

Revolutionary Virginia, 1776-1787 (1977)........ 24

Curriculum of the Archdiocese of OKC’s

Catholic Schools Office,

https://archokc.org/curriculum.......................... 11

Patrick Henry, A Bill Establishing a Provision for Teachers of the Christian Religion (Jan. 1, 1784) ............................................. 24

Douglas Laycock, “Nonpreferential” Aid to

Religion: A False Claim About Original

Intent, 27 Wm. & Mary L. Rev. 875

(1986) ................................................................. 23

James Madison, Memorial and

Remonstrance Against Religious

Assessments (1785),

https://founders.archives.gov/documents/

Madison/01-08-02-0163 ......................... 13, 23, 24

Letter from James Madison to Edward Livingston, 10 July 1822, National Archives,

https://founders.archives.gov/documents/

Madison/04-02-02-0471 ..................................... 24

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Veto Message from President James

Madison to the House of Representatives

(Feb. 21, 1811),

https://founders.archives.gov/documents/

Madison/03-03-02-0233 ..................................... 18

St. Isidore Seville Catholic Virtual Sch.,

Parent & Student Handbook 2024-2025

(Mar. 18, 2024),

https://tinyurl.com/33k8fhck ............................. 11

Virginia Act for Establishing Religious

Freedom (Oct. 31, 1785),

https://founders.archives.gov/documents/

Madison/01-08-02-0206 ..................................... 24

1

INTEREST OF AMICI CURIAE 1

Amici are constitutional law scholars who have for

many years taught and written on the Religion

Clauses of the First Amendment.

B. Jessie Hill is Judge Ben C. Green Professor of

Law at Case Western Reserve University.

Martin S. Lederman is Professor from Practice at

the Georgetown University Law Center and Senior

Fellow of the GULC Supreme Court Institute.

William P. Marshall is the William Rand Kenan Jr.

Distinguished Professor of Law at the University of

North Carolina School of Law.

Richard C. Schragger is the Walter L. Brown Professor of Law and Roy L. and Rosamond Woodruff Morgan Professor of Law at the University of Virginia

School of Law.

Micah Schwartzman is the Hardy Cross Dillard

Professor of Law at the University of Virginia School

of Law.

Nelson Tebbe is the Jane M.G. Foster Professor of

Law at Cornell Law School.

Amici affirm that no counsel for a party authored this brief in

whole or in part, and that no person or entity other than amici,

its members, and its counsel made a monetary contribution intended to fund the preparation or submission of this brief.

1

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

The parties spend the better part of their briefs debating whether Oklahoma charter schools are part of

the state government itself, and must therefore comply

with the U.S. Constitution, or whether they are instead “autonomous private enterprise[s],” Department

of Transportation v. Association of American Railroads, 575 U.S. 43, 53 (2015), that are not bound by

the Religion Clauses.

For reasons amici will explain, this Court need not

resolve that question, because regardless of whether

the St. Isidore of Seville Catholic Virtual School would

properly be deemed a state instrumentality or a private school, the Establishment Clause would prohibit

the State of Oklahoma itself from establishing, sponsoring and subsidizing that charter school, given that

St. Isidore’s declared mission is the systematic inculcation of Catholic faith in its students.

If, on the one hand, St. Isidore is viewed not only as

a “public school” under Oklahoma law (which is uncontested), but also as an instrumentality of the State of

Oklahoma, it could not operate, as its proponent proposes, as a “specific pastoral ministry” of the Catholic

Church, dedicated to “the evangelizing mission of the

Church.” Pet. App. 201a (No. 24-396). Not only would

Oklahoma statutes prohibit a public school from

providing religious instruction in the doctrines of a

particular church, but so, too, would the Establishment Clause of the U.S. Constitution. The “clearest

command” of that clause is that “one religious denomination cannot be officially preferred over another.”

Larson v. Valente, 456 U.S. 228, 244 (1982). Moreover,

a state may not endeavor to assess, or purport to resolve, denominational claims of religious truth. These

3

fundamental Establishment Clause principles apply

with special force in the context of public schools, as

this Court has confirmed in cases long predating

Lemon v. Kurtzman, 403 U.S. 602 (1971). See, e.g., Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203

(1948). Nothing in this Court’s more recent case law

calls into question these well-established principles

and holdings, nor do the petitioners suggest otherwise.

Moreover, the parties who have designed St. Isidore would not have any Free Exercise right to insist

that such a public school teach religious doctrine to its

students, not only because the Establishment Clause

would stand as a barrier, but also because the Free Exercise Clause “simply cannot be understood to require

the Government to conduct its own internal affairs in

ways that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986).

If, on the other hand, this Court were to hold that

St. Isidore should be considered a private school that

is not obligated to comply with the Religion Clauses,

the Establishment Clause would nevertheless prohibit

the State of Oklahoma from establishing that religious

school in the first instance, which is the outcome the

petitioners seek. In addition to that quite literal violation of the prohibition on an establishment of a religious enterprise, the petitioners also seek to require

the State to sponsor a religious school and to subsidize

the distinctively religious education that St. Isidore

would provide. Yet “for the men who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship [and] financial support * * * of the sovereign in religious activity.” Walz v. Tax Comm’n of City of New York, 397 U.S.

664, 668 (1970).

4

The petitioner in No. 24-396 attempts to circumvent these constitutional constraints—and to bolster

its Free Exercise claim—by insisting that this case is

analogous to the Court’s recent decisions in Espinoza

v. Montana Department of Revenue, 591 U.S. 464

(2020), and Carson v. Makin, 596 U.S. 767 (2022).

That analogy fails in at least two important respects.

First, Espinoza and Carson involved existing private schools that the children of the plaintiffs attended

or hoped to attend. The Court held in those cases that

the Constitution did not permit the States of Montana

and Maine to preclude the students from using generally available, state-funded scholarships or tuition assistance to attend those existing private schools because the schools were religiously affiliated (Espinoza)

or because their curriculum included the inculcation of

religious doctrine (Carson). 2

This case, by contrast, does not involve any form of

aid that a state makes generally available to families

for their use at private schools. To the contrary, Oklahoma law excludes all existing private schools, religious or not, from eligibility to become charter schools.

See Okla. Stat. tit. 70, § 3-134(C). The central question

here is thus about whether the Constitution requires

a government agency—the Oklahoma Statewide Charter School Board—to quite literally “establish” the St.

Isidore school in the first instance, see Okla. Stat. tit.

2

Similarly, in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), the

decision on which the petitioners place so much weight for their

argument that the St. Isidore of Seville Virtual Charter School

would not be a state actor, the school in question was “founded as

a private institution,” id. at 832, and was privately subsidized

before it began receiving state aid and contracting with the state,

see Rendell-Baker v. Kohn, 641 F.2d 14, 17 n.1 (1st Cir. 1981),

aff’d, 457 U.S. 830 (1982).

5

70, § 3-132.2(A), (C)(1)(b)) (defining a “charter school”

as, inter alia, “a public school established by contract”

by a private party with one of several sorts of entities

as “sponsors”) (emphasis added); see also id. § 3132.1(A)) (providing that only the Statewide Charter

School Board is eligible to sponsor—and thus establish—a virtual charter school), and about whether the

State of Oklahoma must or can sponsor and subsidize

such a new charter school. Espinoza and Carson do

not bear on those questions.

Second, Espinoza and Carson involved “indirect

aid” programs, i.e., “programs of true private choice, in

which government aid reaches religious schools only

as a result of the genuine and independent choices of

private individuals.” Zelman v. Simmons-Harris, 536

U.S. 639, 649 (2002). As Chief Justice Rehnquist explained in Zelman, this Court has “drawn a consistent

distinction,” for purposes of the Establishment Clause,

between such indirect aid programs and “government

programs that provide aid directly to religious

schools.” Id. Here, in contrast to Espinoza and Carson, if the Oklahoma Board established St. Isidore as

a public charter school, Oklahoma’s substantial funding of that school not only would be direct but would

also be a function of a discretionary choice made by the

Oklahoma Board about whether to establish and sponsor the proposed charter school in the first instance.

Numerous binding precedents of this Court prohibit

such direct funding of religious education—a norm

that traces back to the Founding. The petitioners have

not asked this Court to overrule those precedents, let

alone offered reasons why the predicates for overcoming stare decisis might be satisfied here.

****

6

Before explaining in the Argument below why the

Establishment Clause is a sufficient ground for affirming the decision of the Oklahoma Supreme Court,

amici offer the following thoughts on why we agree

with Attorney General Drummond (Resp. Br. 33-36)

that if the Oklahoma Board were to establish St. Isidore as a public charter school, that school would be an

instrumentality of the State and, as such, would be obligated to comply with the Bill of Rights in the same

way traditional public schools must do.

Of greatest importance, and as noted above, a charter school in Oklahoma does not and cannot exist unless and until a state agency “establishe[s]” it “for the

very purpose of pursuing [state] governmental objectives,” Lebron v. National R.R. Passenger Corp., 513

U.S. 374, 398 (1995). Moreover, the State itself expressly denominates approved charter schools—unlike

private schools—to be part of the state’s system of

“public school[s].” See Okla. Stat. tit. 70, § 3132.2(C)(1) (citing and incorporating the federal definition of “charter school”); see also Arkansas v. Texas,

346 U.S. 368, 370 (1953) (finding that the University

of Arkansas was a state entity in part because Arkansas referred to it as “an instrument of the state in the

performance of a governmental work”). Whether either of these two characteristics, standing alone,

would resolve the question of whether to characterize

St. Isidore as an arm of the State for purposes of applying the U.S. Constitution, amici are unaware of any

case in which a court has held that an entity is not a

state instrumentality where the state both creates it

and designates it as a “public” institution—let alone

where, as with Oklahoma charter schools, the entity in

question as a matter of law cannot exist until a government agency establishes and sponsors it.

7

In addition, Oklahoma law requires charter

schools, unlike private schools, to be “as equally free

and open to all students as traditional public schools,”

Okla. Stat. tit. 70, § 3-136(A)(9), and prohibits charter

schools—but not private schools—from charging tuition or fees, id. See Carson, 596 U.S. at 783 (“private

schools are different by definition [from public schools]

because they do not have to accept all students”). And

the State also funds charter schools through the formula it uses to fund traditional district-run public

schools, something it does not do for private schools.

See Okla. Stat. tit. 70, § 3-136(A)(9); id. § 3-142(A).

Moreover, the Oklahoma Statewide Charter School

Board can under certain circumstances close a charter

school, id. § 3-137(D), (H), including for “good cause,”

id. § 3-137(F)—again, something it cannot do to a private school. See Biden v. Nebraska, 600 U.S. 477, 491

(2023) (relying upon, inter alia, the fact that the Missouri Higher Education Loan Authority could “be dissolved by the State” in holding that it was “an instrumentality of Missouri”).

It is also telling that this Court itself has specifically distinguished private schools from charter

schools, see Zelman, 536 U.S. at 654 (“private schools

receiv[e] only half the government assistance given to

community schools”); see also Greater Heights Acad. v.

Zelman, 522 F.3d 678, 679 (6th Cir. 2008) (noting that

Ohio community schools are “also known as ‘charter

schools’”). That reflects the Court’s evident understanding that the latter are public instrumentalities.

See Lebron, 513 U.S. at 395-396 (looking to how the

Court itself had historically considered certain government-created corporations). And it is particularly significant that the federal government subsidizes Okla-

8

homa charter schools under the Charter Schools Program (CSP) of the Elementary and Secondary Education Act—something it could not do unless those

schools were “public school[s],” 20 U.S.C. 7221i(2) that

are “operated under public supervision and direction,”

id. § 7221i(2)(B). 3 Thus, a conclusion that Oklahoma

3

The United States agrees that Oklahoma charter schools are

“public schools” in at least some “important” senses, but insists

that they are nevertheless not “governmental entities.” U.S. Br.

26. According to the Acting Solicitor General, such charter

schools are not arms of the Oklahoma government because they

are not created by the State and because state officials do not

have the power to appoint a majority of a charter school’s board

of directors. Id. at 23-25 (citing Lebron, 513 U.S. at 398).

The first premise of that argument, however, is mistaken: An

Oklahoma virtual charter school does not and cannot exist unless

and until the Oklahoma Board chooses to enter into a contract

that “establishes” it. And although it is true that the board of

directors of an Oklahoma charter school typically is not composed

of government appointees, this Court has never held that such

immediate control by government appointees is a necessary

condition of an entity’s status as a government instrumentality

for constitutional purposes, nor is there any apparent reason why

that particular condition should be determinative where, as here,

the school has so many other important characteristics of a

governmental entity, including that it cannot exist until a state

agency agrees to create it and become its “sponsor.” In any event,

even if an Oklahoma charter school’s board of directors is not

appointed by state officials, the Oklahoma State Board must sign

off on the proposed directors, see Okla. Stat. tit. 70, § 3-134(B)(2)

(requiring the applicant to disclose “background information of

* * * the governing board of the charter school or virtual charter

school”), and presumably would not approve any application if it

had concerns about the designated individuals. Perhaps that

explains why the federal Government’s view must be that

Oklahoma charter schools are in a meaningful sense operated

under the “supervision and direction” of the Oklahoma Board, 20

U.S.C. 7221i(2)(B). If such state supervision and direction were

9

charter schools are public instrumentalities of the Oklahoma itself “accord[s] with public and judicial understanding of the nature of” such schools “over the

years.” Lebron, 513 U.S. at 394.

In light of this “combination of * * * features” of

Oklahoma charter schools, Association of American

Railroads, 575 U.S. at 53, amici agree that if Oklahoma were to establish the St. Isidore of Seville of Seville Catholic Virtual School as a charter school, St. Isidore would be an instrumentality of the State that is

bound to comply with the Religion Clauses of the federal Constitution.

As we explain below, however, the Establishment

Clause would prohibit Oklahoma from establishing,

sponsoring and directly funding St. Isidore, regardless

of how this Court were to characterize the school itself.

absent, then the federal Government could not subsidize such

schools with CSP funds—yet the Government routinely does fund

such schools, in Oklahoma and in many other states.

10

ARGUMENT

I.

If St. Isidore is an Instrumentality of the

State, both Oklahoma law and the Establishment Clause Prohibit it from Inculcating Students in the Doctrines of a Particular Religion.

If the Oklahoma Supreme Court and the Oklahoma

Attorney General are correct that the St. Isidore of Seville Catholic Virtual School would not only be a public

school but also an instrumentality of the State, St. Isidore could not operate as its proponents have proposed.

A.

St. Isidore’s comprehensive inculcation of religious doctrine would violate Oklahoma statutory law.

Oklahoma law provides without exception that

“[n]o sectarian or religious doctrine shall be taught or

inculcated in any of the public schools of this state.”

Okla. Stat. tit. 70, § 11-101. It also specifies that a

public charter school, in particular, “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations.” Id. § 3136(A)(2).

The St. Isidore of Seville Catholic Virtual School

would violate these statutory commands. In its application to the Oklahoma Board to establish St. Isidore

as a public charter school, the proponent explained

that the school would be “a place of real and specific

pastoral ministry” that would “participate[] in the

evangelizing mission of the [Catholic] Church.” Pet.

App. 201a (No. 24-396). As part of that evangelizing

mission, the school would seek to help “form[] and cultivat[e]” students to know that God “has provided a

path to salvation through the saving power of Christ,

11

the second person of the Trinity, in His suffering,

death and resurrection”; to know “that in this earthly

sojourn, each person is called to participate in Christ’s

suffering and death by daily taking up their own cross

and following Him”; and to know “that human persons

are destined for eternal life with the Holy Trinity * * *

but that * * * an individual may reject God’s invitation and by this ‘definitive self-exclusion’ end up in

hell.” Id. at 203a-204a.

The St. Isidore school would, moreover, incorporate

the teachings of the Catholic Church’s Magisterium

“into every aspect of the School, including but not limited to, its curriculum and co-curricular activities.”

Resp. App. 458a (No. 24-394); see also id. 457a-458a.

Teachers would be expected to “utilize the standards

and benchmarks of the Archdiocese of Oklahoma City”

in their teaching and curricular development. Id. 88a89a; see Curriculum of the Archdiocese of OKC’s Catholic Schools Office, https://archokc.org/curriculum (explaining that the curriculum should be “rooted in the

life and teachings of Jesus Christ and respond[] to His

call to make disciples of all peoples”). Accordingly, as

explained in the St. Isidore School Parent and Student

Handbook that the school would have used for the

2024-2025 school year (before the charter was cancelled), the school would teach “Catholic faith and morals in all fullness” to “students of all faith backgrounds

or none.” St. Isidore Seville Catholic Virtual Sch., Parent & Student Handbook 2024-2025 at 9 (Mar. 18,

2024), https://tinyurl.com/33k8fhck. The “teachings of

Jesus Christ as set by the Catechism of the Catholic

Church and the local ordinaries [of] the Archbishop of

Oklahoma City and the Bishop of Tulsa,” id., would

“permeate the School day” and be expressed “through

worship, prayer, [and] Religion classes,” id. at 17.

12

Oklahoma law would not permit the school to operate in this way. Nor would this application of the state

law prohibitions raise any colorable Free Exercise concerns. To be sure, compliance with such laws would

prevent the Archdiocese of Oklahoma City and the Diocese of Tulsa, which designed the proposed St. Isidore

virtual school, from being able to use that public charter school to inculcate their faith in the students attending it. Compliance with Oklahoma law would

likewise prevent public school teachers dedicated to

St. Isidore’s mission from being able to convey Catholic

doctrine to their students in the course of performing

their official educational functions. That, however,

would not impose a cognizable burden on those actors’

religious exercise, because “[t]he Free Exercise Clause

simply cannot be understood to require the Government to conduct its own internal affairs in ways that

comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986); accord

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439, 448-452 (1988). Compare Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 525 (2022) (explaining that the cognizable religious exercise in that

case involved a coach’s “short, private, personal

prayer” that he was willing to perform after “the players have left the field” and that did “not involve leading

prayers with the team or before any other captive audience”; see also id. at 525-526, 542 n.7 (noting that

Kennedy had earlier “voluntarily discontinued the

school tradition of locker-room prayers and his postgame religious talks to students”; that he “has not

sought to claim First Amendment protection for” those

earlier practices; and that the school district “disciplined him only for his decision to persist in praying

quietly without his players”).

13

B.

Even if Oklahoma law did not prohibit such inculcation of religion in

a public school, the federal Establishment Clause would.

The same would be true even if Oklahoma law did

not itself prohibit such a religious form of education,

as a matter of federal constitutional law.

“[T]he clearest command of the Establishment

Clause is that one religious denomination cannot be

officially preferred over another.” Trump v. Hawaii,

585 U.S. 667, 699 (2018) (quoting Larson v. Valente,

456 U.S. 228, 244 (1982)). Moreover, a state may not

endeavor to assess, or purport to resolve, claims of religious truth. See United States v. Ballard, 322 U.S.

78, 87 (1944). The framers of the First Amendment,

the Court has explained, “fashioned a charter of government” in which “[m]an’s relation to his God was

made no concern of the state.” Id.; see also James Madison, Memorial and Remonstrance Against Religious

Assessments ¶ 5 (1785), https://founders.archives.gov/

documents/Madison/01-08-02-0163 (the notion “that

the Civil Magistrate is a competent Judge of Religious

truth” is “an arrogant pretension falsified by the contradictory opinions of Rulers in all ages”), reprinted in

Everson v. Board of Educ. of Ewing Twp., 330 U.S. 1,

67 (1947) (Appendix to opinion of Justice Rutledge). It

follows that a government may not establish or publicly express a view on distinctly sectarian questions

that divide religions, including, in particular, “[t]he

miracles of the New Testament [and] the Divinity of

Christ.” Ballard, 322 U.S. at 87. As Justice Scalia explained, “our constitutional tradition, from the Declaration of Independence and the first inaugural address

of Washington * * * down to the present day, has,

14

with a few aberrations, * * * ruled out of order government-sponsored endorsement of religion—even

when no legal coercion is present * * * —where the

endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world

are known to differ (for example, the divinity of

Christ).” Lee v. Weisman, 505 U.S. 577, 641 (1992)

(Scalia, J., dissenting).

Ever since the Court recognized that the Establishment Clause applies to the states, see Everson v.

Board of Education, 330 U.S. 1 (1947), it has been

“particularly vigilant in monitoring compliance” with

these fundamental Establishment Clause principles in

public elementary and secondary schools. Edwards v.

Aguillard, 482 U.S. 578, 583-584 (1987). The Court

has done so in large measure because “[f]amilies entrust public schools with the education of their children.” Id. at 584. Such families “condition their trust

on the understanding that the classroom will not purposely be used to advance religious views that may

conflict with the private beliefs of the student and his

or her family. Students in such institutions are impressionable and their attendance is involuntary.” Id.

In Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203 (1948), the Court ruled 8-1 that a public

school could not permit religious teachers employed by

private religious groups to come into the school buildings during regular school hours in order to teach

Catholic, Protestant and Jewish doctrine to students

in grades four through nine, even though attendance

at such religious classes would have been limited to

students whose families requested such religious clas-

15

ses. That practice, the Court found, “falls squarely under the ban of the First Amendment (made applicable

to the States by the Fourteenth).” Id. at 210.

Four years later, in Zorach v. Clauson, 343 U.S.

306 (1952), this Court distinguished McCollum in upholding a “released time” program that permitted New

York City public school students to leave school for religious instruction during what would otherwise be instructional time. In doing so, however, the Court in

Zorach confirmed that “Government may not * * * undertake religious instruction nor blend secular and

sectarian education nor use secular institutions to

force one or some religion on any person.” Id. at 314.

Likewise, in Epperson v. Arkansas, 393 U.S. 97

(1968), the Court invoked McCollum, among other

cases, as having established that that whereas “study

of religions and of the Bible from a literary and historic

viewpoint, presented objectively as part of a secular

program of education, need not collide with the First

Amendment’s prohibition, the State may not adopt

programs or practices in its public schools or colleges

which ‘aid or oppose’ any religion.” Id. at 106 (quoting

Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225

(1963)). “This prohibition,” wrote the Court, “is absolute. It forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.” Id. at 106-107.

In the 77 years since McCollum, nothing in this

Court’s jurisprudence has called into question this

basic understanding that the Establishment Clause

prohibits a public school from inculcating in its students the doctrine of a particular church.

To be sure, inculcating a church’s teachings, and

training young persons “to live their faith,” are “responsibilities that lie at the very core of the mission of

16

a private religious school.” Our Lady of Guadalupe

Sch. v. Morrissey-Berru, 591 U.S. 732, 753-754 (2020)

(emphasis added). The Constitution protects the

rights of such schools, and of the families that choose

them in lieu of public schools, to incorporate such religious education within their pedagogical missions.

See Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Those are not, however, the responsibilities of a public

school that is a part of the state’s own educational system—to the contrary, the Establishment Clause forbids a public school from engaging in any such effort

to infuse its pedagogy with such religious inculcation.

Yet that is precisely what the St. Isidore school would

be designed to do.

Importantly, the petitioners have not taken issue

with this long-settled understanding of what the Establishment Clause prohibits with respect to a public

school that is itself an instrumentality of the state.

Their argument depends, instead, on first establishing

that St. Isidore, though denominated a “public school,”

would nonetheless be “an “autonomous private enterprise,” Association of American Railroads, 575 U.S. at

53, rather than an instrumentality of the State of Oklahoma. As we explain in Part II, however, even if the

Court were to adopt that view, the result under the Establishment Clause would be the same.

II.

If St. Isidore were Deemed a Private

School Rather than an Instrumentality of

the State, the Establishment Clause Would

Prohibit Oklahoma from Establishing,

Sponsoring and Subsidizing Such a

School.

Even if this Court were to conclude that the St. Isidore school should be deemed a private institution for

purposes of applying the Constitution (but see supra

17

at 6-9), the Establishment Clause would prohibit the

State of Oklahoma itself from establishing, sponsoring

and directly subsidizing that school.

The proponents of the St. Isidore school are seeking

to have the State bring into being a religious institution that otherwise would not exist. That would be a

literal “establishment of religion” that the First

Amendment prohibits. Moreover, “for the men who

wrote the Religion Clauses of the First Amendment

the ‘establishment’ of a religion connoted sponsorship

[and] financial support * * * of the sovereign in religious activity.” Walz, 397 U.S. at 668. The relief petitioners seek would involve the State in both the sponsorship and the direct financial support of religious activity designed to promulgate the faith of a particular

church—a result that this Court’s precedents forbid.

A.

Prohibited Establishment of a Religious Institution.

The Oklahoma Supreme Court correctly observed

that this case “is about the State’s creation * * * of a

new religious institution.” Pet. App. 26a (No. 24-396).

As we explain, supra at 4, the St. Isidore of Seville

Catholic Virtual School does not now exist, even

though nothing in Oklahoma or federal law would prohibit the Archdiocese of Oklahoma City and the Diocese of Tulsa from creating and operating St. Isidore

as a private school outside the aegis of the Oklahoma

charter school system. What is more, St. Isidore cannot be “established” and begin to operate as a charter

school without a formal decision by a state entity, the

18

Oklahoma Statewide Charter School Board, to create

that school and sponsor it. 4

Such a formal “establishment” by the State of Oklahoma of a religious institution designed to inculcate

the faith of a particular church would directly violate

the constitutional prohibition against an “establishment of religion.” Cf. Everson, 330 U.S. at 15 (“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.”); Veto Message

from President James Madison to the House of Representatives (Feb. 21, 1811), https://founders.archives.gov/documents/Madison/03-03-02-0233 (vetoing a bill that would have incorporated an “Episcopal

Church in the Town of Alexandria in the District of

Columbia” “[b]ecause the Bill exceeds the rightful au-

Petitioners insist that the charter contract with the Oklahoma

Board would not create, or “establish,” the St. Isidore school

because that school was previously “formed as a private

institution by the Archbishop of Oklahoma City and the Bishop

of Tulsa.” Pet. Br. at 19 (No. 24-396); see also, e.g., Pet. Br. at 2122 (No. 24-394) (similar). That is incorrect. The entity previously

formed by the Archbishop and the Bishop was not the St. Isidore

school itself but instead a nonprofit corporation, St. Isidore of

Seville Virtual Charter School, Inc.—the entity that is seeking to

have the Oklahoma Board establish and sponsor the St. Isidore

charter school. The school itself does not yet exist (which is why

there is no such school currently operating, even though

Oklahoma law would not prohibit its operation as a private

institution). Indeed, if, as petitioners suggest, the school did exist

before the Board “established” it as a charter school, then it would

be ineligible under Oklahoma law to be established as a charter

school. See Okla. Stat. tit. 70, § 3-134(C) (“A private school shall

not be eligible to contract for a charter school or virtual charter

school under the provisions of the Oklahoma Charter Schools

Act.”).

4

19

thority, to which Governments are limited by the essential distinction between Civil and Religious functions, and violates, in particular, the Article of the

Constitution of the United States which declares, that

‘Congress shall make no law respecting a Religious establishment’”); see also Our Lady of Guadalupe, 591

U.S. at 754-756 (describing the “close connection”

many churches draw “between their central purpose

and educating the young in the faith”).

B.

Prohibited Sponsorship and

proval of a Religious School.

Ap-

If the Oklahoma Statewide Charter School Board

were to enter into a contract establishing the St. Isidore of Seville Catholic Virtual School, the Board

would thereby become a “sponsor” of that charter

school under the plain terms of Oklahoma law. See

Okla. Stat. tit. 70, § 3-132.1(A) (providing that the Oklahoma Board has “the sole authority to sponsor

statewide virtual charter schools in this state and may

sponsor charter schools in this state”); see also id. §§

3-132.1(I); 3-132.2(A)(1).

Such sponsorship is not a mere formality. The Oklahoma Board must not only “accept[]” but also “approv[e]” a proponents’ application in order to establish

any virtual charter school, id. § 3-132.2(A)(3)—a subjective process that involves the Board’s careful “evaluat[ion]” of that application, id. § 3-134(I)(2). Amici

assume the Oklahoma Board will generally give some

deference to charter school proponents when assessing

a proposed charter school’s mission, vision and curricular plans. After all, a principal objective of the State’s

charter school initiative is to encourage an array of innovative curricular approaches. Nevertheless, as part

20

of its evaluation, the Board must review the application “for high quality academic programming,” Okla.

Admin. Code § 777:10-3-3(c)(1), and assess whether

the school officials will have the “capacity to successfully comply with the goals set forth in [the school’s]

vision and mission statements,” id. § 777:10-3-3(c)(2).

Such decisions are inevitably quite subjective. And it

is easy to imagine proposed school missions and curricula that would cause the Board to refuse to approve

an application and decline to sponsor a proposed

school, particularly because the State would devote

considerable resources to any such school deemed to be

an Oklahoma “public school.”

St. Isidore’s vision and mission statements are, and

its proposed curriculum would be, pervasively centered around “the evangelizing mission of the [Catholic] Church” and the objective of teaching students the

truth of particular religious doctrines. Pet. App. 201a

(No. 24-396); see supra at 10-11. It is difficult to see

how the Board could assess whether St. Isidore’s plans

with respect to such matters involve “high quality

* * * programming” and whether school officials are

likely “to successfully comply with the goals set forth

in [the school’s] vision and mission statements”—assessments of religious matters by civil authorities that

would themselves raise profound constitutional concerns. But if the Oklahoma Board were, in the exercise

of its discretion, to approve the application and

thereby establish and “sponsor” the school, that decision would have to be understood as a decision by the

Board as vouching that the St. Isidore school is likely

to successfully advance its religious missions and, in

effect, to declare to parents that they ought to consider

that school among the government-approved “public

school” options for their children’s education.

21

Such approval would be a form of “sponsorship

* * * of the sovereign in religious activity” that the Establishment Clause prohibits. Walz, 397 U.S. at 668.

C.

Prohibited Direct Financial Subsidization of Religious Education.

If the Oklahoma Statewide Charter School Board

were to establish the St. Isidore of Seville Catholic Virtual School as a charter school, the State of Oklahoma

would directly subsidize the school’s inculcation of religious doctrine to its students. See Resp. Br. 47 (citing

Okla. Stat. tit. 70, § 3-142(A)). The Establishment

Clause prohibits such a direct subsidy of distinctively

religious education.

As the Court unanimously held in Bowen v.

Kendrick, 487 U.S. 589 (1988), even when a government permissibly provides direct financial aid to a religious institution for the achievement of secular governmental objectives, the Constitution “‘prohibit[s]

government-financed * * * indoctrination into the beliefs of a particular religious faith.’” Id. at 611 (citation

omitted). 5 Justice O’Connor reaffirmed this limitation

5

All nine Justices in Kendrick coalesced on this point,

notwithstanding their sharp disagreements on other aspects of

the case. See id. at 611-12 (Establishment Clause would be

violated if public monies were used to fund “indoctrination into

the beliefs of a particular religious faith”) (internal quotation

omitted); id. at 621 (in assessing the constitutionality of funding

a particular program it would be relevant to determine, for

example, “whether the Secretary has permitted * * * grantees to

use materials that have an explicitly religious content or are used

to inculcate the views of particular religious faith"); id. at 623

(O’Connor, J., concurring) (“[A]ny use of public funds to promote

religious doctrines violates the Establishment Clause.”); id. at

624 (Kennedy, J., concurring) (Establishment Clause would be

violated if funds were “in fact being used to further religion”); id.

22

in her concurring opinion in Mitchell v. Helms, 530

U.S. 793, 847 (2000), which is the governing precedent

from that case (see Marks v. United States, 430 U.S.

188, 193 (1977)). “Although ‘[o]ur cases have permitted some government funding of secular functions performed by sectarian organizations,’” Justice O’Connor

explained, “our decisions ‘provide no precedent for the

use of public funds to finance religious activities.’”

Mitchell, 530 U.S. at 840 (2000) (O’Connor, J., concurring) (quoting Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819, 847 (1995) (O’Connor, J., concurring)). 6 Accordingly, in Mitchell itself, Justice O’Connor held that it was constitutional for the federal government to afford private religious schools in-kind

loans of materials and equipment only because there

were sufficient safeguards in place to ensure that the

schools would not divert those materials and equipment to religious educational uses. See id. at 840-841,

848-849.

This “bedrock” Establishment Clause prohibition

on the direct funding of distinctively religious activities, see Rosenberger, 515 U.S. at 847 (O’Connor, J.,

concurring), is starkly illustrated by this Court’s decision in Tilton v. Richardson, 403 U.S. 672 (1971). In

that case, the Justices divided 5-4 in upholding a fed-

at 634-48 (Blackmun, J., dissenting) (government aid may not be

used to advance religion, even if the government provided such

aid for secular objectives).

See also Mitchell, 530 U.S. at 840 (O’Connor, J., concurring)

(explaining that the Court “rested [its] approval of the relevant

programs” in Agostini v. Felton, 521 U.S. 203 (1997), and in Board

of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236 (1968),

“in part on the fact that the aid had not been used to advance the

religious missions of the recipient schools”).

6

23

eral law that provided aid to religiously affiliated colleges and universities for the repair and construction

of school buildings. The Court was unanimous, however, in declaring invalid a provision of the statute

that would have permitted the schools to use the subsidized buildings for religious worship twenty years after the repair or construction; all of the Justices agreed

that the prohibition on the use of such buildings for

religious activities had to be permanent. See id. at 683

(plurality opinion); id. at 692 (Douglas, J., dissenting

in part).

The no-direct-funding rule is, moreover, deeply

grounded in “historical practices and understandings,”

Kennedy, 597 U.S. at 535 (quoting Town of Greece v.

Galloway, 572 U.S. 565, 576 (2014)), extending back at

least to the lessons derived from the debates about religious assessments in Virginia shortly before the Religion Clauses were drafted and ratified. See Baptist

Joint Comm. Amicus Br. Part I-A; see also Douglas

Laycock, “Nonpreferential” Aid to Religion: A False

Claim About Original Intent, 27 Wm. & Mary L. Rev.

875, 921 (1986) (“[I]f the debates of the 1780’s support

any proposition, it is that the Framers opposed government financial support for religion.”). Of particular

significance was James Madison’s Memorial and Remonstrance Against Religious Assessments, 7 in which

he objected to Patrick Henry’s bill that would have levied a tax to be “appropriated to a provision for a Minister or Teacher of the Gospel of their denomination,

See Everson v. Board of Educ. of the Township of Ewing, 330

U.S. 1, 63-72 (1947) (appendix to Justice Rutledge’s opinion)

(reprinting the Memorial and Remonstrance).

7

24

or the providing places of divine worship.” 8 Madison

warned that competition among religions for public resources, with the inevitable strife that accompanies it,

would “destroy that moderation and harmony which

the forbearance of our laws to intermeddle with Religion has produced among its several sects” (¶ 11). He

also identified the potential harms to religion itself

when the state sustains religious institutions with financial inducements, warning that such aid might

sully the “purity and efficacy of Religion” (¶ 7). 9 And

Madison famously remarked (¶ 5) that any state effort

to “employ Religion as an engine of Civil policy” would

be “an unhallowed perversion of the means of salvation.” 10

As support for Henry’s bill dissipated in the face of

those critiques, Madison led the effort to have the Virginia General Assembly instead enact the “Act for Establishing Religious Freedom” (Oct. 31, 1785). See

https://founders.archives.gov/documents/Madison/0108-02-0206. That law guaranteed, inter alia, that “no

man shall be compelled to * * * support any religious

8

Patrick Henry, A Bill Establishing a Provision for Teachers of

the Christian Religion (Jan. 1, 1784), quoted in Everson, 330 U.S.

at 74 (appendix to Justice Rutledge’s opinion).

See also Letter from James Madison to Edward Livingston (July

10, 1822), National Archives, https://founders.archives.gov/

documents/Madison/04-02-02-0471 (“Religion flourishes in

greater purity, without than with the aid of Government.”).

9

Madison was not alone in the effort to emphasize the risks of

harm to religion itself when church and state are financially

intertwined. Indeed, the Memorial and Remonstrance was a

synthesis of well-established, disestablishment views of the era,

many emanating from within Protestant churches themselves.

See generally Thomas E. Buckley, Church and State in

Revolutionary Virginia, 1776-1787, at 136-140, 175-180 (1977).

10

25

worship, place, or ministry whatsoever,” and warned

that state subsidization of religion “tends * * * to corrupt the principles of that very religion it is meant to

encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it.”

Direct funding of religious education is thus

“among the foremost hallmarks of religious establishments,” Kennedy, 597 U.S. at 537, that the Founders

intended to forbid.

This Court’s more recent decisions have not overruled Kendrick, Mitchell, Tilton, or any of the other

cases in which the Court has affirmed—often unanimously—the doctrine that a state cannot provide direct aid to be used for distinctively religious activities,

including religious education. Moreover, Presidents

and agencies in administrations of both parties have

recognized the continuing authority of those precedents. Of particular importance, Section 2(e) of Executive Order 13279, Equal Protection of the Laws for

Faith-Based and Community Organizations, which

President Bush first promulgated in 2002, specifies

that Federal agencies must implement social service

programs “in accordance with the Establishment

Clause and the Free Exercise Clause of the First

Amendment to the Constitution” and that, “[t]herefore, organizations that engage in explicitly religious

activities, such as worship, religious instruction, and

proselytization, must offer those services separately in

time or location from any programs or services supported with direct Federal financial assistance.” See

Exec. Order No. 13,279, 67 Fed. Reg. 77,141 (2002), as

26

amended by Exec. Order No. 13,559, sec. 1(b), 75 Fed.

Reg. 71,319, 71,320 (2010). 11

Amici recognize that in Trinity Lutheran Church v.

Comer, 582 U.S. 449 (2017), two Justices noted that

they “harbor[ed] doubts” about drawing a constitutional line based upon religious uses of government

aid, even in the context of a direct funding program.

Id. at 469 (Gorsuch, J., joined by Thomas, J., concurring in part). 12 Whatever the merits of that course

might be, particularly in the context of direct financial

aid, 13 adopting it would require the Court to overrule

Most of the agencies covered by that Executive Order imposed

such conditions shortly after President Bush promulgated it, see

88 Fed. Reg. 2395, 2399-2400 (2023), and all of the covered agencies maintained the conditions in connection with a rule promulgated during the first Trump Administration, see 85 Fed. Reg.

82,037, 82,041-43, 82,109 (2020).

11

That issue was not raised in Trinity Lutheran itself. The Court

held there that the Establishment Clause did not prohibit a state

from providing financial assistance for the resurfacing of a

playground of a Church-run preschool. Id. at 457 (majority

opinion). The Missouri agency in that case, however, required

grant recipients to certify that that they would use funds “for

secular (separate from religion; not spiritual) purposes rather

than for sectarian (Denominational, devoted to a sect) purposes,”

and the religious school had submitted such a certification in its

grant application. See Plaintiff's Response in Opposition to

Defendant’s Motion to Dismiss, Exh. A, at 5, No. 2:13-cv-04022NKL (W.D. Mo. Apr. 5, 2013), ECF No. 20-1. This Court expressly

declined to opine on the question of whether a direct grant could

be used for religious education. See 582 U.S. at 465 n.3 (“We do

not address religious uses of funding.”).

12

13

It is noteworthy that although Justice Thomas, in his plurality

opinion in Mitchell, expressed some skepticism about the “no

direct funding” doctrine in the context of nonfinancial aid, he

acknowledged that “we have seen ‘special Establishment Clause

dangers’ when money is given to religious schools or entities

27

numerous precedential decisions. Petitioners have not

requested that this Court do so, let alone established

that the predicates for overcoming stare decisis have

been satisfied.

The St. Isidore petitioner does argue, however, that

this case should be viewed not through the lens of

those direct-aid precedents but, rather, as being governed by this Court’s decisions in indirect aid cases,

such as Zelman, Espinoza, and Carson. Pet. Br. at 49

(No. 24-396).

As Respondent notes (Br. 6), Oklahoma does offer

some forms of indirect aid to families who choose to

send students to private schools. Nothing in Oklahoma law or the federal Constitution would preclude

the nonprofit corporation that has proposed St. Isidore, see supra note 4, from itself creating and operating the institution as a private school. If it did so, then

parents could choose to use vouchers under Oklahoma’s Parental Choice Tax Credit Act, or statefunded scholarships, to help defray the costs of tuition

at that private school, in accord with this Court’s indirect aid precedents, including Espinoza and Carson.

The St. Isidore nonprofit corporation, however, has

made no efforts to establish such a private school. Instead, it has asked the Oklahoma Board to establish

St. Isidore as a pubic charter school that would receive

substantial direct financial assistance from the State,

without the intervention of independent private decision-making.

Petitioner argues that “the link between government and religion is attenuated by private choices”

nevertheless, in that the “amount of State Aid received

directly rather than * * * indirectly.”

(quoting Rosenberger, 515 U.S. at 842).

530 U.S. at 818-819

28

by [St. Isidore] is ‘generated by students enrolled in

the virtual charter school for the applicable year.’”

Pet. Br. at 49 (No. 24-396) (quoting Espinoza, 591 U.S.

at 485, and an affidavit in the state court proceedings,

respectively). In relying upon this “per capita” argument, petitioner appears to be taking a page from Justice Thomas’s plurality opinion in Mitchell, which suggested that the Establishment Clause should not prohibit private schools from using at least some forms of

“direct” aid—in that case, library and media materials

and computer software and hardware—for specifically

religious education, as long as the aid also serves the

secular functions for which it was provided and the

government distributes the aid on a strictly per capita

basis, based upon the number of students enrolled at

each school. See 530 U.S. at 829-830 (plurality opinion).

Adopting that view would also require the Court to

overrule precedent, given that Justice O’Connor specifically rejected Justice Thomas’s “per capita” reasoning in her governing opinion in Mitchell itself. See 530

U.S. at 842-844 (O’Connor, J., concurring in the judgment). But even if this Court were inclined to consider

whether to adopt the Mitchell plurality’s rationale, the

Establishment Clause would permit government aid to

subsidize religious education only where “[i]t is the

students and their parents—not the government—

who, through their choice of school, determine who receives * * * funds.” Id. at 830 (plurality opinion).

That does not describe this case. As Respondent

notes (Br. 47-48), not all state funding for Oklahoma

charter schools is calculated solely on the basis of student enrollment. Moreover, even as to those forms of

aid that are based upon enrollment numbers, the funding would not be merely a function of independent

29

choices of private individuals. As we have explained,

supra at 19-20, the Oklahoma State Board is afforded

significant discretion to decide whether or not to “sponsor” and “establish” proposed charter schools in the

first instance, after careful assessment of many factors, including a school’s proposed curriculum and mission statement. Such decisions of the Board are not

based upon private choices, “genuine and independent,” Zelman, 536 U.S. at 649, or otherwise, and would

not necessarily be “neutral” in the sense described in

the Mitchell plurality opinion and the Zelman line of

indirect-aid decisions. There was no similar subjective

and discretionary state evaluation of school eligibility

in Carson and Espinoza. Therefore, the State’s responsibility for the subsidization of religious education

would be present here in a way it was not in those

cases. 14

****

For all of these reasons, the Establishment Clause

would prohibit the State of Oklahoma from establishing and sponsoring the St. Isidore charter school, and

from subsidizing its distinctively religious education,

See Walz, 397 U.S. at 675 (distinguishing the constitutionality

of tax exemptions for churches from prohibited subsidies to places

of worship in part because “[o]bviously a direct money subsidy,”

in contrast to a tax exemption, “would be a relationship pregnant

with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative

relationships for enforcement of statutory or administrative

standards”); see also id. at 699 (Harlan, J., concurring) (explaining that the “general rule” is that because “subsidies or direct aid

* * * are granted on the basis of enumerated and more complicated qualifications [than tax exemptions], [they] frequently involve the state in administration to a higher degree”).

14

30

even if that school were itself deemed to be a private

school rather than a state instrumentality.

CONCLUSION

The Court should affirm the judgment of the Oklahoma Supreme Court.

Respectfully submitted,

MARTIN S. LEDERMAN

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9937

April 7, 2025

DONALD B. VERRILLI, JR.

Counsel of Record

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500 E

Washington, DC 20001

(202) 220-1100

Donald.Verrilli@mto.com