Oklahoma Statewide Charter School Board v. Drummond

LII note: The U.S Supreme Court has now decided Oklahoma Statewide Charter School Board v. Drummond

Issues

(1) Whether a privately owned school that participates in a state’s charter school program is a government entity or engages in state action; and (2) whether a state can exclude a privately owned school from its charter school program solely because it is religious.

Oral argument:
April 30, 2025
Court below:
Supreme Court of Oklahoma

This case asks the Supreme Court to determine if a state can exclude religious schools from participating in its charter school program. The state of Oklahoma operates a charter school program to which St. Isidore, a Catholic institution, applied. The Oklahoma Virtual Charter School Board (the “Board”) granted St. Isidore’s application. The Oklahoma Supreme Court ordered the state to revoke St. Isidore’s charter school contract because it is a religious school, and charter schools are public entities that must be nonsectarian under Oklahoma law. The Board contends that Oklahoma charter schools are not public entities engaged in state action, and thus the prohibition on sectarian charter schools violates its Free Exercise rights. Drummond contends that charter schools are public entities engaging in state action that a state can require to be nonsectarian without violating the Free Exercise Clause. This case touches upon important questions regarding the increasing prevalence of charter schools and their impact on equitable student achievement outcomes, as well as on protecting parental choice.

Questions as Framed for the Court by the Parties

(1) 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; and (2) whether a state violates the First Amendment's free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment's establishment clause requires.

Facts

The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to establish St. Isidore of Seville Catholic Virtual School (“St. Isidore”) as an online charter school. St. Isidore is a religious institution and plans to structure its activities as a “genuine instrument of the [Catholic] [C]hurch.” In essence, St. Isidore’s purpose is to operate as a Catholic school. In 2023, the Oklahoma Charter School Board (the “Board”), in a three-to-two vote, chartered St. Isidore. If the charter survives its current legal challenges, St. Isidore will be the first religious charter school in the country.

Like many states, the Oklahoma constitution charges the legislature “to establish and maintain a system of free public schools.” Pursuant to that obligation, the state enacted a charter system through the Oklahoma Charter Schools Act (“Charter Act”) in 1999. Charter schools in Oklahoma are not subject to the exact same legal requirements and restrictions as traditional public schools. They differ in some of their teaching methods, as well as the manner in which the state holds them accountable; and, their proponents praise them for offering students with educational choices.

After the Board approved St. Isidore’s application to become a charter school, but before the contract’s execution, the Oklahoma Attorney General, Genter Drummond, brought suit against it and the then-existent Oklahoma Statewide Virtual Charter School Board (it has since been subsumed by the statewide board; the “Board”). Drummond filed a mandamus action in the Oklahoma Supreme Court seeking an order directing the Board to rescind St. Isidore’s charter school contract. Drummond alleged that the contract violated both the Oklahoma and U.S. Constitutions.

The Oklahoma Supreme Court ruled in favor of Drummond and directed the Board to rescind St. Isidore’s contract, finding that it violated two state constitutional provisions, the Charter Act, and the federal Establishment Clause . First, the Court found the contract violative of Oklahoma’s constitutional prohibition on appropriating public money to religious organizations. Accordingly, the Court rejected St. Isidore’s argument against state action ; instead, it determined that St. Isidore was a public school by way of the state charter, and thus a state actor. Second, the Court found St. Isidore’s charter violative of both the state constitutional mandate to establish public schools “free from sectarian control,” and the Charter Act’s related nonsectarian requirement. Third, the Court held that the First Amendment’s Establishment Clause prohibits the charter because it uses public money for the establishment of a religious institution, St. Isidore, which fully integrates Catholic teachings in its curriculum and co-curricular activities. Finally, the Court rejected St. Isidore’s Free Exercise claim: it held that even if denying St. Isidore’s charter on the basis of its religious status implicated free exercise rights, it is nevertheless permissible because the charter itself violates the Establishment Clause.

On October 7, 2024, the Oklahoma Statewide Charter School Board and St. Isidore, who intervened below, separately petitioned the Supreme Court of the United States for a writ of certiorari . The Court granted certiorari and consolidated the cases on January 24, 2025.

Analysis

WHETHER A STATE’S CHARTER SCHOOL PROGRAM CAN EXCLUDE RELIGIOUS SCHOOLS UNDER THE ESTABLISHMENT CLAUSE WITHOUT VIOLATING THE FREE EXERCISE CLAUSE

The Board argues that a religious charter school does not violate the federal Establishment Clause. The Board first contends that St. Isidore is neither a government entity nor engaged in state action because it is privately incorporated, privately overseen, and designs its religious instruction without state participation. The Board also argues that, as a non-governmental entity not engaging in state action, its receipt of state funds would not violate the Establishment Clause. The Board instead asserts that it would merely benefit from a neutrally administered public program. Further, the Board contends that simply because its government funding would be direct, as opposed to indirect, it fails to raise Establishment Clause issues. The Board argues that there is a history and tradition of public aid to private religious schools. The Board argues that denying St. Isidore the right to participate in Oklahoma’s charter school program would violate its federal rights under the Free Exercise Clause. The Board argues that St. Isidore possesses Free Exercise rights as a private entity, and that denying it access to “generally available” public benefit programs solely because it is religious amounts to a Free Exercise violation. The Board posits that, while states are not required to establish charter school programs, they cannot discriminate against religious applicants once they choose to do so. The Board also argues that the state’s “antiestablishment interest” does not overcome St. Isidore’s Free Exercise rights because its state funding is determined by enrollment.

Drummond counters that a religious charter school violates the federal Establishment Clause. Drummond argues that the Establishment Clause clearly prohibits public funding of religious schools. Drummond thus argues that, as a government entity, charter schools cannot be religious without running afoul of the Establishment Clause. Drummond contends that the Establishment Clause permits, and may even require, states to provide for an exclusively secular public education system. Drummond asserts that St. Isidore’s Free Exercise rights are not infringed by denying it public charter status on the basis of its religious status. Drummond submits that the Free Exercise clause is not implicated because St. Isidore is a government entity that is attempting to advance “religious teachings and activities through a new public charter school.” Drummond maintains that while the Free Exercise Clause prohibits states from excluding religious entities from public benefit programs, Oklahoma’s charter school program is not a public benefit program but is rather a program establishing public schools. Drummond rejects St. Isidore’s contention that there is a history and tradition of public aid to private religious schools since there “were no public schools as we understand them at the founding.” Finally, Drummond argues that, even if the Establishment Clause does not affirmatively prohibit public funding of religious public charter schools, the Free Exercise Clause does not compel a state to do so.

WHETHER CHARTER SCHOOLS ARE GOVERNMENT ENTITIES OR ARE OTHERWISE ENGAGED IN STATE ACTION

The Board argues that St. Isidore is neither a government entity nor a private entity engaging in state action. St. Isidore instead asserts that charter schools like itself are privately owned, privately operated, and do not engage in state action by virtue of being charter schools, thus avoiding any Establishment Clause concerns. The Board first contends that Oklahoma law simply labeling charter schools as public schools is insufficient to find that St. Isidore is a government entity. Additionally, the Board rejects Drummond’s claim that St. Isidore is a “state-created entity” and a “creature of state law.” The Board instead submits that it is a “privately operated religious non-profit organization” incorporated by two Catholic dioceses. In support, the Board argues that St. Isidore differs in key respects from public schools; specifically, it is not operated by a school district and not overseen by a locally elected school board. Additionally, the Board asserts that the state does not control St. Isidore’s board, determine its “day-to-day operations,” or employ any state officials. The Board also argues that in addition to being a private entity, it is not engaging in state action. In support of this point, the Board argues that the state’s involvement with its operations is limited. The Board maintains that St. Isidore has wide latitude to design its curriculum and that the school’s Catholic “initiative” is neither compelled by nor comes from the state. The Board also argues that St. Isidore is not engaging in state action simply because it receives “legal protections and benefits” for participating in a state-run program. The Board additionally claims that education is not a “traditional and exclusive public function” and therefore does not amount to state action. The Board further rejects the notion that the provision of “ free public education” is a traditional and exclusive public function.

Drummond argues that St. Isidore is a government entity or, in the alternative, is a private entity engaging in state action, thus violating the Establishment Clause. Drummond first notes that public schools share “key defining features.” These features include being publicly funded, open to all students, subject to state control, and unaffiliated with a religious organization. Drummond argues that charter schools share these key features, including that they be publicly funded and open to all. Drummond also argues that contrary to the Board’s claims otherwise, charter schools are subject to extensive government oversight because charter schools are created by and can be closed by the state, are subject to identical testing and reporting requirements as traditional public schools, and must comply with various health, safety, civil rights, and disability laws as public schools. Drummond also notes that federal law requires that “charter schools be public schools” to qualify for grant money.

Drummond also rejects the Board’s contention that St. Isidore is not a government entity because its establishment predates its charter contract. Drummond argues that this contention is “flatly rejected” by state law, which holds that a charter school is “established through the chartering process.” Drummond also rejects the Board’s contention that St. Isidore’s board is privately run, arguing instead that, even though St. Isidore’s governing board is private, state law considers these boards governmental entities. Finally, Drummond argues that, even if St. Isidore is not a government entity, it functions as a state actor as a charter school because it helps the state fulfill its obligation to provide free public education to children in Oklahoma. Drummond argues that St. Isidore is engaging in state action because Oklahoma has “outsourced” a constitutional function, in this case providing free public education, to a private entity. In the alternative, Drummond argues that providing free public education is a “traditional and exclusive state function,” arguing that states are the only entities in the history of the United States that have “provided a free public education open to all.”

Discussion

CHARTER SCHOOLS AND EQUITABLE OUTCOMES

In support of the Oklahoma Statewide Charter School Board (“Board”), Ryan Walters, the Superintendent of Public Instruction for the State of Oklahoma, and others argue that labeling charter schools as state actors would disadvantage the educational opportunities of children and especially those children who are more disadvantaged. Walters points to girl-only schools, whose students outperform girls attending co-education schools, according to studies. Under a state actor label, Walters argues, single-sex schools may be unconstitutional and therefore barred. Similarly, in support of the Board, EdChoice and others assert that religious-based schools such as Catholic schools outperform public schools in academics such as math and reading and are also more likely to attend and graduate from college compared to public high school students. Further, Governor Francis Keating II and Professor William Jeynes explain that attending a religious school narrows the racial achievement gap.

In response, the National Alliance for Public Charter Schools, in support of Drummond, argues that labeling charter schools as private schools may increase inequities rather than decrease them. NAPCS points to protections offered to students under federal laws such as the Individuals with Disabilities Education Act (“IDEA”) . Under a private actor label, NAPCS argues, these charter schools would not be subject to the IDEA, and, therefore, schools would be able to legally discriminate and bar from admission for students with disabilities. Similarly, in support of Drummond, the Advancement Project and others assert that labeling these schools as private actors would especially harm minority and other marginalized students. The Advancement Project expands that religious schools currently discriminate based on sex and sexual orientation while invoking religious faith as justification. For support, the Advancement Project points to sex-based dress codes as well as denial of admissions or threats of expulsion to LGBTQ students.

STATE FUNDING AND INCREASED PARENTAL CHOICE

In support of the Board, the World Faith Foundation and NC Values Institute argue that labeling religious charter schools as state actors would significantly harm parental choice because it would limit funding to alternative means of education available to children. For support, the Covenant Journey Academy provides the example of the O family and their daughter Ashley. CJA explains that the O Family was searching for a school for their daughter that aligned with their family values and faith, leading her to enroll at CJA. Similarly, in support of the Board, the Jewish Coalition for Religious Liberty and others explain that religious schools provide much-needed options to families of minority faiths, allowing them the option to raise their children according to their religious values.

In response, NAPCS, in support of Drummond, argues that labeling charter schools as private schools would decrease overall parental choice because if no longer considered public, many charter schools would lose all state funding due to bars in state constitutions of public funding of private schools. Further in support of Drummond, Public School Organizations assert that even if state funding were allowed, the core problem of funding children’s education would remain because requiring state funding of private religious schools would reduce funding available in the state budget for existing public schools. Advancement Project expands on this and explains that reducing funding available to public schools would harm poor, rural, and minority communities and students the most because those communities rely more on state public funding of education.

Conclusion

Andrew Hallowell and Kehan Rattani

Grace Braider

Additional Resources