Amicus Brief: Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond

Oklahoma unconstitutionally discriminates against faith-based schools, restricting them from participating in the state’s publicly funded charter program.

St. Isidore of Seville Virtual Catholic School wanted to participate in the state’s charter program and received approval to do so from the state’s Charter School Board. Oklahoma’s attorney general challenged the school’s funding and ultimately got the state supreme court to rule that charter schools, although privately operated, are considered "public" institutions because they receive state funding. Accordingly, the school’s religious activities are considered “state action” and subject to constitutional limits on religious expression.

This decision flies in the face of the U.S. Supreme Court’s articulation of the Constitution’s proscription against discrimination on the basis of religion; the only thing that disqualified the school from participation in the charter program was its religious nature. St. Isidore and the Charter School Board have each petitioned for Supreme Court review, raising key First Amendment concerns. They argue that labeling these schools “public” does not transform their private, faith-based education into state action, especially given the recent high court rulings in Carson v. Makin and Espinoza v. Montana Department of Revenue, which prevent exclusion from public benefits based on religious status.

The Manhattan Institute is supporting the petitioners with an amicus brief emphasizing the Oklahoma ruling’s incorrect view of state versus private action and the broader threat it poses to religious organizations nationwide. We argue that requiring religious entities to secularize to receive public funds could push faith-based groups out of critical public-service roles, from foster care to healthcare. This case provides the Supreme Court an excellent opportunity to reemphasize the strength and breadth of the First Amendment’s protections and to forcefully reject discrimination against people of faith.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

(with thanks to law school associate Tyler Cochran)

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