Amicus Brief Argues That Charter Schools Are Not “State Actors”
The Supreme Court has granted certiorari in Oklahoma Statewide Charter School Board v. Drummond (24-394) and a companion case, St. Isidore of Seville Virtual Catholic School v. Drummond (24-396), to decide whether sectarian, i.e., religious, charter schools violate the First Amendment’s prohibition against governmental “establishment of religion.”
The Oklahoma Supreme Court held that St. Isidore – a privately owned and operated Catholic virtual school – is a “governmental entity and state actor” because it contracted with the Oklahoma Statewide Charter School Board to provide education services and receive public funding under the State’s charter school statute. The Oklahoma Supreme Court ordered the school’s charter school contract to be rescinded on the ground that it violates the First Amendment’s Establishment Clause. In so holding, the court rejected the Charter School Board’s argument that denying a charter and funding to St. Isadore would violate the First Amendment’s Free Exercise Clause. The First Amendment not only prohibits governmental establishment of religion, but also governmental interference with the “free exercise” of religion.
Consistent with ALF’s effective education advocacy mission—which long has focused on the educational benefits of charter shcools—ALF has joined an amicus brief prepared by EdChoice in support of the Charter School Board and St. Isidore.
The amicus brief argues that a privately created and operated charter school that exercises autonomy over its curriculum and instruction is not a “state actor” or “state entity” for First Amendment purposes merely because it receives a state “charter,” i.e., enters into an agreement with a State, to provide education services to students and receive public funds. For this reason, such a charter school does not “establish” a religion by providing religious instruction to its students. Further, by denying a charter to schools like St. Isidore, the State is engaging in the type of discrimination that the Supreme Court’s decision in Carson v. Makin, 596 U.S. 767 (2022), holds violates the Free Exercise Clause.
The amicus brief also recounts the thirty-plus year history of charter schools in the United States, and discusses the demonstrable student academic success and other benefits derived from the educational pluralism that charter schools provide. Expanding such pluralism to include charter schools that offer a religious curriculum fosters school choice and inures to the benefit of students.
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.
2. 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.
Status:
The Supreme Court has scheduled the case for oral argument on April 30, 2025.
Contact:
Email ALF Executive Vice President & General Counsel Lawrence Ebner.
