This week, St. Isidore of Seville Catholic Virtual School filed a cert petition to appeal the Oklahoma Supreme Court’s decision denying it the right to take part in Oklahoma’s charter school program because of its religious character. The program followed the lead of many states in allowing charter schools to offer diverse and innovative educational alternatives to families that sought them over often deficient government-run schools.
Oklahoma invited private schools to participate in its program, in which they would contract with the state for funding. The Oklahoma Statewide Virtual Charter School Board found that St. Isidore met all the state’s secular criteria for the program and was impressed by what it had to offer students across the state. Oklahoma law, however, includes “nonsectarian” provisions that raise questions. Its state constitution authorizes public schools “free from sectarian control” and prohibits aid to sectarian institutions. Its Charter Schools Act bars sectarian organizations from applying. Two questions are presented in the cert petition:
- Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students.
- Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires.
In 2022, Oklahoma’s attorney general, John O’Connor, issued an advisory opinion clearing St. Isidore for approval. While Oklahoma law describes charter schools as public, O’Connor recognized that under U.S. Supreme Court precedent, St. Isidore did not constitute a state actor for purposes of the religion clauses of the U.S. Constitution. In Rendell-Baker v. Kohn (1982), the Court found a nominally private school for special needs students that received between 90% and 99% of its operating budget from government funding not to be a state actor for purposes of a § 1983 First Amendment–based lawsuit filed by teachers and a school counselor. The public school system or drug courts referred almost all of its students. That the local public school board certified the school’s diplomas did not change the analysis. Neither did whether the school performed a “public function.” To constitute state action, its function had to be the state’s exclusive prerogative and the conduct coerced by the state.
St. Isidore is privately owned and operated and, as a charter school, is entirely optional for parents, without any state coercion. It even retains a flexible curriculum, developed without state interference. Education is not the exclusive province of the state; private entities have educated children throughout U.S. history. And the Oklahoma approval process does not discriminate with respect to religion. The Establishment Clause is therefore inapplicable to the analysis, O’Connor concluded. The Free Exercise Clause, for its part, likely invalidates the state law bar on aid to sectarian institutions. That should be clear from three key cases of recent vintage: Trinity Lutheran Church of Columbia v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022). All reflect that, as Trinity Lutheran articulated the applicable principle, a state that denies “a qualified religious entity a public benefit solely because of its religious character” violates the Free Exercise Clause. Two of those precedents, Espinoza and Carson, specifically involved the education context, invalidating prohibitions on tuition assistance to parents who send their children to religious schools. Carson made clear that there was no distinction to be made between the religious status of the schools involved and the religious use of funds. The state cannot “exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.” As O’Connor summarized the free exercise standard: “The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ . . . and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.”
Unfortunately, Gentner Drummond, who defeated O’Connor in the 2022 primary election and succeeded him as attorney general in 2023, withdrew O’Connor’s opinion letter and sued to prevent the school from opening. As I discussed previously, Drummond disagreed with O’Connor’s conclusions and also with Supreme Court precedent, casting the charter school as a state actor and applying the reasoning of the dissent instead of the Court’s opinion in Carson.
The state supreme court agreed with Drummond and ruled in his favor. In doing so, it sided with one court—a sharply divided Fourth Circuit en banc—in a circuit split. By contrast, three circuits—the First, Third (in an opinion by then-Judge Samuel Alito), and Ninth—have followed Rendell-Baker and recognized that privately operated schools that contract with the state to offer educational choices for students are not state actors. That should be an added incentive for the justices to take this case, St. Isidore of Seville Virtual Catholic School v. Drummond, and reaffirm the precedents that Oklahoma’s incumbent attorney general and high court have defied.