As previously reported, the U.S. Supreme Court has granted certiorari in Oklahoma Virtual Charter School Board v. Drummond and the related case of St. Isidore of Seville Virtual Charter School v. Drummond. In the cases, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic-sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. Last week (March 12), the U.S. Acting Solicitor General filed an amicus brief (full text) urging reversal of the Oklahoma Supreme Court. The brief says in part:
... [T]he Free Exercise Clause applies and prohibits Oklahoma from excluding St. Isidore based on its religious observance.
The United States previously advanced a different view of a charter school’s relationship with a State in Charter Day School, Inc. v. Peltier, 143 S. Ct. 2657 (2023), after this Court called for the views of the Solicitor General regarding whether a charter school’s adoption and enforcement of a student dress code was state action that could potentially violate the Constitution. The United States contended (Br. 9-14) that the charter school was engaged in state action because it performed an educational function that was traditionally exclusively reserved to the State.
After the recent change in Administration, the United States has concluded that charter schools do not perform functions exclusively reserved to the State. More broadly, the state-action inquiry on which the United States focused in Peltier has obvious application to cases asking whether a school violates the Constitution in taking a specific action. Where, as here, the question is whether a school lacks constitutional protections due to its governmental character, the key consideration is whether the school is itself a governmental entity, created and controlled by the State. A charter school like St. Isidore does not meet those criteria.
