March 26, 2025
Oklahoma Statewide Charter School Board v. Drummond and St. Isadore of Seville Catholic Virtual School v. Drummond
Does a State Violate the First Amendment's Religion Clauses When It Declines to Support a Religious Public Charter School Alongside Its Secular Public Charter Schools?
Case at a Glance
The Oklahoma Statewide Charter School Board executed a contract with St. Isidore of Seville Catholic Virtual School to operate a religious charter school in the state. The state attorney general sued, arguing that the contract violated state prohibitions on religion in public schools. The state supreme court agreed and directed the board to rescind the contract. The board and St. Isidore brought this appeal.
Oklahoma Statewide Charter School Board v. Drummond and St. Isadore of Seville Catholic Virtual School v. Drummond
Docket Nos. 24-394 and 24-396
Argument Date: April 30, 2025
From: The Oklahoma Supreme Court
by Steven D. Schwinn
University of Illinois Chicago School of Law, Chicago, IL
Introduction
As a general matter, states may require their public schools to be secular. But at the same time, states cannot exclude private religious organizations from public contracting or public-benefits programs. This case tests the intersection and reach of these principles.
Issues
Are Oklahoma charter schools "public," so that the state can require them to be secular?
Can Oklahoma require its charter schools to be secular without violating the Religion Clauses?
Facts
Oklahoma supports two different kinds of taxpayer-funded K-12 public schools. First, the state runs a public-school system that is free to all families and open to "all the children of the State." Okla. Const. art. I, § 5. In order to ensure that the schools remain open to all, the state constitution guarantees that schools remain "free from sectarian control." Okla. Const. art. I, § 5. Like all other states, Oklahoma imposes compulsory education requirements on its public schools.
Second, since 1999 the state supports charter schools. Charter schools are public schools operated by a private organization under contract with the state. Like other public schools, charter schools receive a state aid allocation and any federal funds to which they are entitled. Like other public schools, charter schools are free and open to all children. And like other public schools, they must be "nonsectarian in [their] programs, admissions policies, employment practices, and all other operations." Okla. Stat. tit. 70, § 3-136(A)(2). In some areas in the state, students are presumptively assigned by their local school district to a charter school.
Under Oklahoma law, charter schools are distinct from their chartering organizations, and the state "remains deeply involved in their operations." For example, charter schools are subject to the same testing and reporting requirements as other public schools, and they must comply with the same laws regarding civil rights, health, safety, insurance, and disability. Charter schools must provide the same number of days and hours of instruction as public schools, and they are subject to a performance assessment by the state. Just like other public schools, charter schools are subject to state subject-matter standards and local boards set a curriculum and ensure that students meet state standards. Charter schools are also subject to many of the same rules as other public schools regarding activities such as electronic communications with students, suspension, busing, financial aid, and more. The state has authority unilaterally to shut down a charter school.
All that said, charter schools differ from other public schools in several ways. For example, charter schools can adopt different teaching methods and emphasize different learning philosophies. Moreover, they are not run by school-district boards. And they are exempt from certain legal restrictions that apply to other public schools.
During the 2022-2023 school year, 30 charter schools operated in the state (including 7 virtual charter schools), with over 50,000 students (or about 7.2 percent of the state's public-school students). Charter schools received about 314millioninstatefundingand314millioninstatefundingand69 million in federal Charter School Program funds.
As an alternative to public school, the state also supports private schools. Under state law, private schools are not subject to the same requirements as public schools (including charter schools); indeed, private schools "need not be accredited to operate." Oklahoma provides vouchers up to $7,500 for parents to send their children to a private school, religious or not. The state also provides need-based scholarships and additional vouchers for certain students.
In January 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa formed a nonprofit corporation called St. Isidore of Seville Virtual Charter School, Inc. The corporation's purpose is "[t]o create, establish, and operate" St. Isidore "as a Catholic school" that would serve "as a genuine instrument of the Church, a place of real and specific pastoral ministry" and "participate[] in the evangelizing mission of the Church." The corporation planned to "hire educators, administrators, and coaches as ministers committed to living and teaching Christ's truth."
In May 2023, St. Isidore, Inc., applied to the Oklahoma Statewide Charter School Board to establish St. Isidore as a virtual charter school that "fully embraces the teachings of the Catholic Church's Magisterium" and "fully incorporates these [teachings] into every aspect of the School." The corporation wrote that "[a]ll students are welcome" to attend the school, but that "[a]dmission assumes the student and family willingness to adhere with respect to the beliefs, expectations, policies, and procedures of the school as presented in the handbook." The handbook, in turn, says, among other things, that students are expected to adhere to "the belief[]" that "Christ is present in the Holy Eucharist," that students are "required" to attend at least one all-school Catholic mass, and that students are required to "support the [religious] mission of the School."
In June 2023, the board voted 3-2 to approve the application. In October, the board executed a charter contract with the corporation establishing St. Isidore as a charter school.
That same month, the state attorney general sued the board directly in the Oklahoma Supreme Court. The attorney general asked the court to cancel St. Isidore's charter contract and declare its establishment unlawful. The court ruled for the attorney general. The court held that the St. Isidore contract violated the Oklahoma Constitution's prohibition on the use of public money to "benefit, or support...any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such." Okla. Const. art. 2, § 5. The court also held that the contract violated the state constitutional requirement that "public schools...shall be open to all the children of the state and free from sectarian control," Okla. Const. art. 1, § 5, and a parallel state law that similarly requires all charter schools to be nonsectarian. The court ruled that St. Isidore is a state actor, and therefore these authorities apply to it. Finally, the court held that the contract violated the Establishment Clause and did not violate the Free Exercise Clause.
The board and St. Isidore (which intervened below) separately appealed. The Court granted certiorari and consolidated the cases.
Case Analysis
As a general matter, states can require their public schools to be secular. And Oklahoma has done so. The first question, then, is whether St. Isidore, as a charter school, is "public."
At the same time, though, states cannot exclude private religious organizations from public contracting or public-benefits programs. For example, the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017), that a state's denial of grants to a religiously affiliated organization to purchase rubber playground surfacing violated the Free Exercise Clause. In the context of education funding, the Court ruled in Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), that a state rule that excluded religiously affiliated private schools from a state scholarship program for students attending private schools violated the Free Exercise Clause. Most recently the Court held in Carson v. Makin, 596 U.S. 767 (2022), that a state's "nonsectarian" requirement for a state tuition-assistance program for private secondary schools in districts that do not operate secondary schools of their own violated the Free Exercise Clause. The second question, then, is how these principles apply to Oklahoma's charter schools.
The board argues first that St. Isidore is not a state actor, and therefore the state constitutional and statutory restrictions on religious public education do not apply. It says that the Court in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), concluded that a similar privately operated school that provided free publicly funded education through a government contract was not a state actor. The board claims that it doesn't matter that Oklahoma calls its charter schools "public," because that label only means that charter schools are free and publicly funded. Moreover, the board contends that St. Isidore does not meet any of the Court's state-actor tests: it is not entwined with the state; the state neither coerced nor significantly encouraged its religious status or conduct; its function (providing K-12 education) has never been the exclusive province of the state; and the state has not completely delegated a state duty to it (because the state offers other K-12 educational choices). The board claims that the state did not create or direct St. Isidore's operations, and so the school "is not a governmental entity for First Amendment purposes," either.
The board argues next that its contract with St. Isidore does not violate the Religion Clauses. As to the Free Exercise Clause, the board contends that the case is governed by Trinity Lutheran, Espinoza, and Carson. It says that Oklahoma's ban on charter schools affiliated with religious institutions illegally discriminates based on St. Isidore's religious status, and it claims that the state's ban on charter schools with religious programs or operations unlawfully discriminates based on St. Isidore's intended religious use of public funds.
As to the Establishment Clause, the board contends that this is no defense. The board says that "[o]ur history is replete with examples of governments funding religious schools from the founding through Reconstruction," and that "no Establishment Clause concerns arise when States administering generally available funding programs treat secular and religious groups alike." The board asserts that "[t]his is especially true" when parents, not the state, choose to send their children to charter schools.
St. Isidore and the government, arguing as amicus in support of the petitioners, make substantially similar arguments. (The government questions whether the state-actor-doctrine framework is the appropriate way to assess whether St. Isidore is a public school. But in the end, it says that the state-actor-doctrine framework yields the same result anyway: St. Isidore is not a public school.)
The state attorney general counters that states may require their public schools to be secular. While the attorney general concedes that states may not exclude private religious organizations from state contracts and generally available public-benefits programs, the attorney general claims that "different considerations apply to religious teaching in public schools." In particular, the attorney general, citing Court precedents, contends that public schools inculcate values that are necessary to a democracy, including tolerance of different political and religious views, and that public schools are "uniquely coercive, in both direct and indirect ways." The attorney general asserts that allowing states to keep their public schools secular "harmonize[s] the protections of the Free Exercise Clause and the Establishment Clause, and accords with the history of government-funded private education."
The attorney general argues next that St. Isidore is a public school, and that Oklahoma may therefore require it to be secular. The attorney general says that Oklahoma charter schools meet the plain definition of a public school: they are "free, open to all, funded by the State, subject to state control, nondiscriminatory, and nonsectarian." Moreover, the attorney general contends that the state's charter schools were created by the government and controlled by it. The attorney general asserts that Oklahoma law is clear that charter schools are public schools. The attorney general claims that applying the Court's rules on state actors (as argued by the board, above) yields the same result.
Finally, the attorney general argues that a ruling for the board and St. Isidore "would have profound consequences." The attorney general points out that 45 other states and the federal government (in the Charter School Program, or CSP, which provides additional funding for charter schools) "all require charter schools to be both public and secular." The attorney general says that a ruling for the board and St. Isidore would "eliminat[e] a crucial source of funding" for charter schools, "creat[e] chaos and confusion for thousands of charter schools and millions of schoolchildren nationwide," and "subject religious institutions to regulation in ways that would either threaten religious liberty or grant religious charter schools a special status compared to secular charter schools." The attorney general also contends that such a ruling "would eliminate a line" in the Court's precedents "between programs that funnel state aid to religious education through the independent, private choices of parents," which are constitutional, and "direct state aid to religious prayer and teaching," which generally are not.
Significance
This case tests the application and reach of the Court's recent rulings on public funding of religious education. As noted above, the Court in recent years has issued a pair of rulings, Espinoza and Carson, that require states to fund private religious education on par with private secular education, even when the private schools stand in for a lack of public schools (as in Carson). These cases are consistent with the Court's recent rulings that require states to treat religious organizations on par with secular organizations when awarding public contracts and public benefits, as illustrated by Trinity Lutheran.
This case tests whether these principles extend to charter schools. On the one hand, not extending charter-school status to religious organizations amounts to discrimination against religion and denies religious organizations an equal opportunity to charter a school simply because they are religious. (The board contends that Oklahoma's constitutional provisions that prohibit equal treatment are Blaine Amendments—provisions in some state constitutions that were initially born out of anti-Catholic bigotry. This charge may add to the feeling by some on the Court that exclusion of religious schools simply reflects unlawful antireligion animus.)
On the other hand, as the attorney general argues, If Oklahoma's charter-school law violates the Free Exercise Clause because of odious discrimination against religion, then so does the federal CSP—which has funneled billions of dollars of critical aid to charter schools across the country—and so do the laws of 45 other States. In other words, if Oklahoma's charter-school law violates the Free Exercise Clause, then this is one of the most far-reaching free exercise violations in the Nation's history.
In addition to this case's potentially significant impact on religion and education funding, the case is also one of several that together could make this a blockbuster term for the Religion Clauses. In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, No. 24-154, argued on March 31, the Court will determine whether the Religion Clauses prohibit a state from denying an exemption from the state's unemployment compensation program to a religious organization that provides secular social services. In Mahmoud v. Taylor, No. 24-297, the Court will determine whether public schools violate parents' religion rights when they compel elementary school children to participate in instruction on gender and sexuality against the parents' religious convictions.
All of these cases come as the Court has been expanding free-exercise principles over the past decade or so, while simultaneously contracting Establishment Clause concerns. The net effect is to include religious organizations and religion more and more in public life. The cases this term, including Oklahoma Statewide, will tell us if these trends will level out, continue on course, or even accelerate.
ATTORNEYS FOR THE PARTIES
For Petitioners Oklahoma Statewide Charter School Board, et al. (James A. Campbell, 571.707.4655)
For Petitioners St. Isidore of Seville Catholic Virtual School (Michael Hugh McGinley, 202.261.3378)
For Respondent Gentner Drummond (Gregory G. Garre, 202.637.2207)
In Support of Respondents:
In Support of Petitioners
American Center for Law and Justice (Jay Alan Sekulow, 202.546.8890)
Buckeye Institute (David Christian Tryon, 614.224.4422)
Center for Constitutional Jurisprudence (Anthony Thomas Caso, 916.601.1916)
Christian Legal Society, et al. (Eric W. Treene, 202.319.6783)
Classical Charter Schools of America, Inc., Pinnacle Classical Academy, and North Carolina Coalition for Charter Schools (Aaron Michael Streett, 713.229.1855)
Covenant Journey Academy (Mathew D. Staver, 202.289.1776)
EdChoice, Inc. (Thomas M. Fisher, 317.681.0745)
Former Oklahoma Attorneys General John M. O'Connor and E. Scott Pruitt (Thomas Ryan McCarthy, 703.243.9423)
Foundation for Moral Law (Roy Stewart Moore, 334.262.1245)
General Council of the Assemblies of God and the Coalition for Jewish Values (Noel John Francisco, 202.879.3939)
Governor Francis Keating II and Professor William Jeynes (Miles Edward Coleman, 864.373.2352)
Great Hearts Academies, et al. (Denise Harle, 850.241.1717)
Hon. Peter Deutsch (Gordon Dwyer Todd, 202.736.8000)
Jewish Coalition for Religious Liberty, Abraham Knowledge Academy, and the Religious Freedom Institute (Jacob H. Huebert, 512.481.4400)
Lepanto Institute (Gerard V. Bradley, 574.631.6627)
Manhattan Institute (Ilya Shapiro, 212.599.7000)
National Religious Broadcasters (Michael P. Farris, 202.341.4783)
Oklahoma Governor J. Kevin Stitt (Trevor Scott Pemberton, 405.521.2342)
Professor Charles L. Glenn (Eric Nieuwenhuis Kniffin, 202.628.1200)
Professor S. Ernie Walton (Christopher Theodore Holinger, 757.410.2293)
Rutherford Institute (Jason Peter Gosselin, 215.988.3371)
Ryan Walters in His Official Capacity as Superintendent of Public Instruction for the State of Oklahoma, the Oklahoma Department of Education, and the Oklahoma State Board of Education (Anthony Joseph Ferate, 405.753.5939)
South Carolina (Joseph David Spate, 803.734.3371)
U.S. Senators James Lankford, Josh Hawley, Kevin Cramer, Ted Budd, and Ted Cruz (Mark Ian Pinkert, 805.270.5938)
Union of Orthodox Jewish Congregations of America (Lori Halstead Windham, 202.955.0095)
United States (Sarah M. Harris, Acting Solicitor General, 202.514.2217)
United States Conference of Catholic Bishops (Benjamin Michael Flowers, 513.201.5775)
Wisconsin Institute for Law & Liberty, Inc. (Richard Michael Esenberg, 414.727.9455)
World Faith Foundation and NC Values Institute (James L. Hirsen, 714.283.8880)
Wolff Family (Wilfred Kenneth Wright Jr., 918.341.1982)
In Support of Respondent Gentner Drummond
Jon R. Meador (Jon Rodney Meador, 512.395.4425)
National Alliance for Public Charter Schools (Randall John Yates, 918.592.9866)