Key Moments from the Oral Arguments in OK Statewide Charter School Board v. Drummond

Oral arguments for Oklahoma Statewide Charter School Board v. Drummond took place before the Supreme Court on Wednesday. The case concerns St. Isidore of Seville Virtual School, which is looking to become the first Catholic charter school in the country.

At the request of Oklahoma Attorney General Gentner Drummond, the Oklahoma Supreme Court ruled that charter schools are public schools and state actors in Oklahoma and by law cannot be religious. Both St. Isidore and the Oklahoma Statewide Charter School Board argue that excluding St. Isidore violates the Free Exercise Clause of the 1^st Amendment. Previous cases like Carson v. Makin found that religious organizations cannot be excluded from generally available public programs solely because they are religious.

I’m not a lawyer, but I did take the time to read the transcript of the oral arguments and a couple of things stuck out to me.

First and foremost, I’m a sucker for Supreme Court oral arguments and decisions because they seem to be one of the last places in America where clear and compelling speaking and writing are valorized. In fact, there were not one, not two, not three, but four references to dangling modifiers during the discussion.

Just give the opening statement from Michael McGinley, one of the lawyers on the side of St. Isidore, a read.

The Free Exercise Clause bars a state from inviting private parties to participate in an educational funding program while excluding those who exercise their faith. But that is precisely what Oklahoma law does here. Respondent seeks to justify that religious discrimination by recasting St. Isidore as a government entity or state actor with no constitutional rights. That is incorrect. St. Isidore is a private religious nonprofit. It was created by private actors and it is controlled by a private board that consists of entirely private actors. It thus lacks the essential elements of a government entity. Nor is St. Isidore exercising a traditional and exclusive government function. American history is replete with examples of private organizations offering free education to the nation’s youth with support from the public fisc. All that leaves is the fact that Oklahoma law labels charter schools as public schools. But constitutional analysis turns on substance, not labels, and casting the cloak of state action too broadly risks intruding on individual liberty. The Establishment Clause does not restrain St. Isidore and the Free Exercise Clause protects it.

That is the whole thing. 181 words! There is not an ounce of fat there. Just crystal-clear prose. All of us who write for a living could learn something from it.

Outside of the general argumentation and repartee, there were three moments that stood out to me as particularly memorable.

Moment #1: Creation and Control

Right off the bat, Justice Thomas asked a question central to the discussion. What makes a school a state actor? From the back and forth that followed it appears the argument is that two things are central: creation and control. Was the school created by the government and is it controlled by the government?

Here is Justice Thomas’s question:

JUSTICE THOMAS: Well, the argument is that either you are engaging in some sort of state action, which is –I’d like you to at least discuss that because this is –isn’t the normal context in which we see that –and that you are a state entity. You’re a public school, a public Catholic charter school. And I think you should address that because those seem to be at the crux of the –of the differing opinions and the argument.

And here is part of the reply from Jim Campbell, one of the lawyers for the Charter Board.

MR. CAMPBELL: Yeah –yes, Justice Thomas. So, to start with governmental entity, there are two requirements that this Court has established. The first is state creation, and the second is state control. There’s no state creation here because St. Isidore was established by two private Catholic organizations and they applied to participate in a program. They built their own charter school program. They came up with their own startup funding, and they asked to be a part. That looks nothing like what this Court has found to be state creation in cases like Lebron, Biden, and Arkansas. In all of those cases, the entity was created by name through special legislation. Nor is there government control here because St. Isidore is operated by a privately selected board. Again, in all three of the cases that my friend on the other side cites, there was a state-selected or a government-selected board, and that’s different from this case because, as he admits, we don’t have that here. Now why does that matter? It’s critical because a state-selected board has government control within the organization. All we have here is government oversight outside of the organization. And this Court has been clear in its state action cases that government regulation from the outside is not sufficient to constitute state control for –or –I’m sorry –is not sufficient to constitute state action, let alone control, for purposes of governmental entity analysis.

If you are interested in a deep dive into the questions of state action, I highly recommend the amicus brief by my colleagues at EdChoice. They argue persuasively that there are circumstances in which a state could create charter schools that are state actors, but that Oklahoma did not do so in this case.

Moment #2: Landscapes

As happens in many of these arguments, justices offered some hypothetical scenarios to try and test the boundaries of what a ruling in this case might mean. Both Justice Sotomayor and Justice Jackson used the example of landscape paintings. I don’t think I can do the arguments justice with a summary, so I’ll just put both of their questions here.

JUSTICE SOTOMAYOR: Counsel, if the government wanted to paint its capital building and it wanted to paint landscapes, would it be violating your theory of contracting if it said: We want a secular landscape, we don’t want a religious one? How is this –that different from this case? Or is it? Are you saying that anytime the government contracts for anything, it must include –not a religious person, because your charter school doesn’t want to just give a secular education, it wants to give a religious education. So what you’re saying is that –does the government have to accept the religious landscape?

This question was asked a bit later, but about the same topic.

JUSTICE JACKSON: Well, let me ask you another question. This goes back to Justice — to Justice Sotomayor’s hypothetical. So suppose we had a state that wanted to have murals of landscapes on its public buildings around, and so it was offering money for painters to come in to do that. And it wanted no messaging, no nothing, just the mountains, landscapes. That was a term of the benefit of the money that they were providing. Would it be a free exercise violation if a particular painter came in and said, here’s my proposed sketch, it has, you know, religious symbols in it, that’s important to me because I’m a, you know, religious painter and this is what I would like to do, and the state said, I’m sorry, we’re not going to do that? Now, I mean, yes, they’d be rejecting him because the product that he was offering had religious symbols, but I doubt that that would be a –a free exercise violation for the reasons that I’ve articulated.

Campbell’s response was short and to the point.

MR. CAMPBELL: I –I think that case is very different from this case because, in that case, the government is trying to speak its own message on its own buildings. Here, it’s giving broad autonomy to the schools to come up with their own mission and their own curriculum, and so this involves that private entity being a part of the process.

Moment #3: Striking Some Elements but not Others

For someone who has followed cases like Trinity Lutheran, Espinoza, and Carson, much of Wednesday’s oral arguments took place on well-trod ground. But there was one interesting area of disagreement, offered by the lawyer for State Attorney General Drummond and seized upon by Justice Kagan, that made this case a bit more complicated. It is related to the actual chartering process in Oklahoma and what elements of the process the petitioners would like to waive.

Here is the straightforward argument made by Gregory Garre, the lawyer for Attorney General Drummond.

MR. GARRE: Petitioners are not seeking access to Oklahoma’s program on equals terms. They seek a special status: the right to establish a religious charter school plus an exemption from the nondiscrimination requirements that apply to every other charter school and that distinguish public schools from private schools.

This was seized upon by Justice Kagan in a lengthy back and forth with Jim Campbell.

JUSTICE KAGAN: Well, I guess the question is: Why is a school allowed to strike some requirements but not strike other requirements, right? Like, Oklahoma law has a requirement of nonsectarianism, for example. Essentially, what St. Isidore’s did was it struck that from the contract. So the next school says: We want to strike from the contract –I mean, St. Isidore did some other things too, right? It struck out the nondiscrimination provision because of doctrines like the ministerial exemption or church autonomy principles. So the next school says: We also want to strike from the contract the requirement that we teach children of all faiths. I would think that your argument would have to apply the same way.

Campbell’s response?

MR CAMPBELL: If we just take a step back and consider how Free Exercise Clause jurisprudence works, whenever a litigant wants to challenge a specific requirement by the government, then it has to focus on that requirement and show that it’s either not neutral or not generally applicable under the case law in Smith. So, if someone wanted to challenge the requirement that the school be open to all, they would have to show that that requirement is not neutral or not generally applicable, and if they can show that, then they would proceed to strict scrutiny. And, at that point, the State would have a very different interest than it has here. The State’s only interests here are already rejected antiestablishment interests. The State’s interest in that case would be very different, the interest in ensuring that the school is open to all.

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We’ll have to wait until later in the summer to find out how the court will decide. In reading through the oral argument though, it is clear that this is nowhere near the end of the questions around public funding and religious expression.

This article was originally published on our Substack.