Questions presented before the Supreme Court

- OK Charter School Board v. Drummond.

This Court has "repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits." Carson as next friend of O. C. v. Makin, 596 U.S. 767, 778 (2022). Three times, the Court has applied that principle to strike down "state efforts to withhold otherwise available public benefits from religious organizations." Id. at 778-79 (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017); Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464 (2020)).

Contrary to those precedents, the Oklahoma Supreme Court held that a state can exclude privately owned and operated religious charter schools from its charter-school program by enforcing state-law bans on "sectarian" and religiously affiliated charter schools. The court also held that a charter school engages in state action for constitutional purposes when it contracts with the state to provide publicly funded education. These rulings implicate an entrenched circuit split and present two questions for review:

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. 


- St. Isidore of Seville Sch. v. Drummond.

This Court has repeatedly held that the Free Exercise Clause prohibits a state from denying generally available benefits to a school solely because it is religious. That principle should have resolved this case. Petitioner is a private religious institution. It seeks to partake in the benefits of Oklahoma's charter school program. But the court below invalidated Petitioner's contract with the charter school board. The court disregarded this Court's Free Exercise precedents because, in its view, Petitioner had become an arm of the government by virtue of that contract. It thus held that the Establishment Clause and Oklahoma laws aimed at creating "a complete separation of church and state" compelled the court to deny Petitioner-on religious grounds-the benefits created by Oklahoma's Charter Schools Act.

The questions presented are:

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.