AFPF files amicus brief in support of educational pluralism

On April 30, the Supreme Court will hear two consolidated cases, Oklahoma Statewide Charter School Board, Et Al., v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, in which the court will address whether the pedagogical choices of a private school operating as a charter school constitute state action and are therefore required to be secular, and whether the Free Exercise Clause protects religious schools’ ability to participate in the state’s charter school program.

Like many states, Oklahoma adopted a charter school program to provide choice and diversity in education. It invited private educators to participate in this program by contracting with the state.

St. Isidore is a private religious institution created as a K-12 virtual school “dedicated to academic excellence” that would, in the Catholic tradition, “educate the entire child: soul, heart, intellect, and body.” St. Isidore submitted a several-hundred-page application to the Oklahoma Statewide Virtual Charter School Board to participate in the charter school program. The board agreed that St. Isidore fully satisfied all the secular criteria for the program and would bring a valuable new learning opportunity to families across Oklahoma, approved the application, and executed a contract with St. Isidore.

The attorney general of Oklahoma sought a writ of mandamus in the Oklahoma Supreme Court to extinguish St. Isidore’s contract. The court agreed, reasoning that St. Isidore’s contract turned the school into a “surrogate of the State,” because charter schools are “public.”

In separate lawsuits, St. Isidore and the board challenged that conclusion as contrary to constitutional law because: first, the Supreme Court has repeatedly struck down states’ attempts to exclude religious schools, parents, and students from publicly available benefits based solely on their religion; and second, labeling a private entity as “public” is insufficient to convert it into a state actor.

Americans for Prosperity Foundation, partnering with EdChoice, Atlantic Legal Foundation, and yes. every kid. foundation., filed an amicus brief in support of the board and St. Isidore highlighting the benefits students receive from educational pluralism provided by a market of private providers, including religious schools. As the brief argues,

Charter schools perform better than traditional public schools precisely because they are freed from the strict curriculum restrictions that apply to traditional public schools. Their pluralistic approach to curriculum has led to significant success as an education model. Catholic schools have also been valuable in promoting education in other school choice programs, and their participation in charter schools would contribute to the success of the pluralistic charter model.

The brief also warns of the perils of vacuuming up private entities under the umbrella of “state actor” and burdening them with the limitations and rules applicable to the state. Not only would such an approach imperil variety in schooling, but it would also place at risk other charitable institutions that provide services under contract to the state. In any event, whether a private entity becomes a state actor for any purpose — much less all purposes — is a fact-specific inquiry that cannot be satisfied by simply inserting the word “public” into their offerings. Here, that would mean, among other things, proving that education has traditionally been provided exclusively by the state and that the institution is controlled by the state.

Oklahoma presumably could have taken steps to create charter schools limited to its existing public school strictures, but instead took the opposite approach, expanding educational offerings by contracting with private parties to provide diverse experiences.