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Last week, Oklahoma made news with the decision of its virtual statewide charter school board to approve the charter application of St. Isidore of Seville Catholic Virtual School. Governor Kevin Stitt applauded the approval as “a win for religious liberty and education freedom” and was “encouraged by these efforts to give parents more options when it comes to their child’s education.” Unfortunately, the state’s attorney general, Gentner Drummond, sent a starkly different message, denouncing the approval as unconstitutional and “a stake in the heart of religious liberty.” He announced his intention to challenge the state’s contract with the school in court after it is signed.

If that seems like odd behavior from a Republican attorney general, it is not an isolated occurrence. Drummond only became attorney general in January, but he has already blindsided Stitt and the majority in the state legislature by reaching an agreement with the ACLU temporarily not to enforce a recent law prohibiting irreversible gender transition surgeries and hormone therapies for minors. And his handling of the death penalty has evoked criticism from district attorneys who believe he is failing to do his duty to zealously advocate on behalf of crime victims and their families.

In February, Drummond withdrew the opinion letter of his predecessor, John O’Connor, which found the establishment of an otherwise qualified religious charter school constitutional and in fact an extension of the principle recognized in recent Supreme Court decisions culminating in Carson v. Makin (2022) that the state must not discriminate against religious schools in its aid to parents who decide to send their children to private schools. Charter schools in Oklahoma are entirely optional for parents, and the state allows private organizations to establish and operate them, with substantial flexibility to set their curricula. In fact, charter schools are “exempt from all statutes and rules relating to schools, boards of education, and school districts” apart from provisions in the Oklahoma Charter Schools Act and the school’s own charter.

At the core of Drummond’s argument are two flawed premises. First is his characterization of the flow of public money to religious schools: “Forcing Oklahomans to fund religious teachings with their tax dollars is not religious freedom—it is state-sponsored religion, which violates the first clause of the First Amendment.” Not only does that statement fail to acknowledge that the charter school at issue is available strictly by way of parental choice for their children rather than compulsion; it also mirrors Justice Stephen Breyer’s mischaracterization in his Carson dissent of tuition aid that includes religious schools as “[f]orcing Maine to fund schools that provide . . . religiously integrated education.” Not surprisingly, the Court disagreed with that framing since the state’s decision to allow its funds to go to private schools was not forced upon it. Drummond appears to disagree with the Court.

Second, Drummond asserts that a charter school is a “state actor” and therefore subject to the same constitutional constraints that would apply to a state agency. That does not comport with the analysis the Supreme Court applied in Rendell-Baker v. Kohn (1982), in which a school for special needs students, operated by a private board but receiving most of its funding from the state, was held not to be a state actor for purposes of a § 1983 lawsuit in which a vocational counselor and teachers challenged their discharge. The school was nominally private, but nearly all of its students were referred by the public school system or drug courts, and government funding (federal, state, and local) accounted for between 90% and 99% of the school’s operating budget every year. It did not matter that the local public school board certified diplomas issued by the school or that that school was required to comply with “detailed regulations concerning matters ranging from recordkeeping to student-teacher ratios.” The amount of state funding was immaterial. Regardless of whether such a school performs a “public function,” the function performed must historically be the exclusive prerogative of the state—and the conduct coerced by the state—before it can constitute state action.

While Rendell-Baker did not deal with an institution specifically designated a charter school, it naturally set the standard for lower courts to determine whether private or charter schools are state actors. In Robert S. v. Stetson School (2001), in an opinion by then-Judge Samuel Alito, the Third Circuit found that a school for juvenile sex offenders that received substantial public funding and “worked in close concert with state and local governments” was not a state actor. In Logiodice v. Trustees of Maine Central Institute (2002), the First Circuit declined to treat disciplinary measures against a student as state action in a privately operated high school that had contracted with a public school district to be the only high school in the district. In Caviness v. Horizon Community Learning Center (2010), the Ninth Circuit found that a private nonprofit corporation that ran a charter school defined as a “public school” by law was not a state actor when it took action regarding the employment status of a teacher.

As for the Tenth Circuit, which includes Oklahoma, Drummond admits that that court of appeals has not yet examined the question of “whether charter schools are state actors.” The court “[a]t most . . . previously assumed” in a couple of cases, “without analysis, that charter schools are state actors.” There was a Tenth Circuit decision four decades ago, in Milonas v. Williams (1982), in which the court found the owners and operators of a private school that also served as a mental health and detention facility for troubled boys to be state actors. The court distinguished Rendell-Baker because the plaintiffs were students, some involuntarily placed in the school by state officials—a factor that would not apply to Oklahoma’s charter school. It also relied for its holding on the “significant state funding of tuition” and detailed contracts with school districts, but Alito in Stetson School found the analysis in Milonas to be “squarely inconsistent with Rendell-Baker.”

The Fourth Circuit’s recent decision en banc in Peltier v. Charter Day School (2022) made a similar departure from Rendell-Baker in holding in a challenge to female student dress codes at a nominally public but privately operated charter school that state action was implicated. Six judges dissented from this holding, with dissenting opinions written by A. Marvin Quattlebaum and J. Harvie Wilkinson that exposed the majority’s reasoning as a departure from Supreme Court precedent and an aberration among circuit courts.

A cert petition is pending in Peltier. Hopefully, the Supreme Court will take the case and reverse the Fourth Circuit. And hopefully the Oklahoma attorney general will rethink a position that undermines school choice and religious freedom before he goes to court. The state deserves a better advocate than it has gotten to date.

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