In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court invalidated the nation’s first religious public charter school. The court ordered the Oklahoma Statewide Virtual Charter School Board to rescind its contract establishing St. Isidore Catholic Virtual Charter School, finding that the contract – which permitted a private organization affiliated with the Catholic Church to operate a virtual charter school within Oklahoma’s public education system, fully integrating religion and religious teachings into its curriculum and activities – violated both the Oklahoma Constitution and the establishment clause.

Central to the court’s reasoning in invalidating the contract was its application of the state actor doctrine, which determines when a private entity’s conduct is subject to constitutional scrutiny, usually reserved for state actions.[1] The court concluded that St. Isidore’s religious instruction and related activities were fairly attributable to the state, making the establishment clause and relevant state constitutional provisions applicable to the school, as they would be to any other public school. Through this case, this article takes a closer look at the state actor doctrine and its application when private entities are engaged in public endeavors. 

UNDERSTANDING THE STATE ACTOR DOCTRINE

Constitutional protections, especially under the Bill of Rights and the 14th Amendment, typically apply to government actions, not private entities.[2] But when governments collaborate with private entities through partnerships, contracts or incentives, the line between public and private action can blur, raising constitutional questions.

The state actor doctrine provides a framework for determining when private conduct should be treated as government action and subject to constitutional limits. Courts consider factors like the level of state involvement, whether the private entity performs a function traditionally reserved for the state and the extent of state influence over the entity’s actions. When a private entity is deemed a state actor, its actions must comply with constitutional protections, just as if the government itself was acting directly.

The doctrine evolved largely in response to the limitations revealed by the Civil Rights Cases of 1883. In those cases, the U.S. Supreme Court held that the 14th Amendment did not apply to private acts of discrimination by privately owned businesses. But that left a gap in constitutional protections where state involvement, though ostensibly absent, was actually driving private conduct. Critical to determining whether a nominally private person or entity has engaged in state action is whether that action is “fairly attributable to the State.”[3] The U.S. Supreme Court has developed several tests to make this determination. These tests include:

• Public Function Test: This test asks whether the private entity is performing a function that is traditionally and exclusively the prerogative of the state, such as running elections or operating a town.
• Nexus or Joint Action Test: This test examines whether there is a close relationship between the state and the private entity, such that the private entity’s actions can be considered those of the state. This could include situations where the state and the private entity are working together or where the state has a significant influence on the private entity’s actions.
• State Compulsion Test: Under this test, a private entity may be considered a state actor if the state has coerced, compelled or significantly encouraged the private conduct in question.
• Entwinement Test: This test considers whether the state is so entwined with the private entity’s operations that the private entity’s actions can be seen as those of the state, often taking into account factors like governance, regulation and oversight.

These tests may overlap, and the U.S. Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Association cautioned that determining whether an action is fairly attributable to the state is a complex and context‑dependent judgment.[4] No single factor universally dictates state action, and the decision must consider a range of factors. Even if certain conditions suggest state involvement, other reasons might still prevent attributing the action to the government. Still, these tests help courts determine when constitutional protections should apply to private actions, ensuring that the state’s influence or involvement does not bypass fundamental rights. With that in mind, we will now delve deeper into each test.

The Public Function Test

To begin, the public function test applies when a private entity performs a function that has traditionally and exclusively been the role of the state. Under this test, if a private entity assumes a role historically reserved for the government, such as conducting elections or managing a town, its actions may be considered state actions and thus subject to constitutional scrutiny. The key question is whether the function has been one that only the government has traditionally performed; if so, the private entity may be held to the same constitutional standards as the state.

The public function test was developed under unique circumstances in Marsh v. Alabama in 1946. The U.S. Supreme Court considered whether a state could constitutionally impose criminal penalties on a person distributing religious literature in a company-owned town against the wishes of the town’s management. The private town, owned by Gulf Shipbuilding Corp., operated like any typical American town, with public streets, a business district and a post office. A Jehovah’s Witness was arrested for distributing religious literature on the town’s sidewalk after being denied a permit. The Supreme Court ruled that, despite its private ownership, the company town could not infringe on First Amendment freedoms because it served the public in the same manner as any other municipality.[5]

In contrast, in Jackson v. Metropolitan Edison Company, the U.S. Supreme Court held that the termination of electric service by a privately owned utility company, despite being labeled “public,” did not constitute state action under the 14th Amendment. The case involved a resident who had her electricity service terminated by the company for nonpayment, which it was certified by the state to do. She filed a lawsuit claiming the utility’s actions violated her due process rights under the 14th Amendment, arguing that the company’s actions were effectively state actions due to its regulated status, public service function and monopoly power. The Supreme Court disagreed, ruling that extensive regulation and the provision of an essential public service did not convert the utility’s actions into state actions.[6]

The bar for applying the public function test is notably high, as the function in question must not only be one traditionally performed by the government but also one that has been carried out exclusively by the government, without private involvement. The test also contains an inherent contradiction: If an activity is truly an exclusively public function – meaning only the state has traditionally performed it – then it would be unusual for a private entity to undertake it. The very fact that a private entity is performing the function suggests it may no longer be exclusively public, if it ever was. This raises the question of why a private entity is involved in what is supposed to be an exclusive governmental role. In any event, the exclusivity criterion significantly limits the range of activities that can meet the test.

The Nexus or Joint Action Test

The next test – the nexus or joint action test – is more direct in its approach. It evaluates whether the relationship between the state and the private party’s conduct is sufficiently close to warrant attributing the private party’s actions to the state.

The U.S. Supreme Court’s Burton v. Wilmington Parking Authority decision provides an instructive illustration. In this case, the U.S. Supreme Court ruled that the discriminatory actions of a privately owned restaurant, which refused service to a Black customer, could be deemed state action due to the close relationship between the restaurant and the Wilmington Parking Authority, a state agency. The Wilmington Parking Authority had leased public property to the restaurant and provided various forms of support, establishing a connection where the restaurant’s operations were closely interconnected with the state’s interests. But the court cautioned that while many relationships might appear to fall within the scope of the 14th Amendment, differences in circumstances result in differing outcomes, perhaps limiting the ruling’s application specifically to lessees of public property.[7]

Another application of this test is when a private party uses state legal procedures to deprive another party of property or when the private party is a “willful participant in joint activity with the State or its agents.”[8] This was first exemplified in Lugar v. Edmondson Oil Co., in which the U.S. Supreme Court held that a private creditor that secured a prejudgment attachment of the petitioner’s property through state procedures was a state actor. The petitioner argued that this action deprived him of his property without due process of law. The court determined that because Edmondson Oil had invoked state procedures and engaged state officials in attaching the property, its actions were attributable to the state. The court reasoned that when private parties use state procedures to deprive individuals of their property, those actions create a sufficient nexus to be considered state action.[9]

By examining the relationship between the state and the private entity, the nexus or joint action test ensures that actions involving significant state involvement or cooperation do not escape the protections of constitutional rights. This test demonstrates the underlying principle that the state cannot insulate itself from constitutional obligations by merely acting through private parties.

The State Compulsion Test

The state compulsion test is another test used to determine when a private party’s actions can be attributed to the state. This test applies when the state has either exercised coercive power or provided significant encouragement, effectively making the private party’s conduct an extension of state action.

The case of Blum v. Yaretsky illustrates that in applying the state compulsion test, mere state regulation – like with the public function test – is insufficient to attribute private actions to the state. Private decisions, even in a heavily regulated context, must be directly influenced or compelled by the state to be considered state actions.

In Blum, the court held that the decisions of privately owned nursing homes to discharge or transfer Medicaid patients do not constitute state action under the 14th Amendment. The issue arose from a class action lawsuit by Medicaid patients who challenged the lack of procedural safeguards in such decisions, arguing that these actions were attributable to the state due to extensive regulation and state funding. The court reasoned that while the nursing homes were subject to state regulation and received state funding, the decisions to discharge or transfer patients were ultimately made by private parties based on medical judgments and, thus, could not be attributed to the state.[10]

On the other hand, in Peterson v. City of Greenville, the U.S. Supreme Court held that a restaurant’s refusal to serve Black patrons was not merely a private decision but was coerced by the state due to the local ordinance mandating segregation.[11] Likewise, in Shelley v. Kraemer, the U.S. Supreme Court held that the enforcement of racially restrictive covenants by state courts constituted significant state encouragement, thereby transforming private discriminatory agreements into state action. Although the covenants themselves were private, the court found that state judicial enforcement provided the necessary state involvement to trigger the protections of the 14th Amendment.[12]

While unbridled coercion is often readily apparent, determining the line between proper and improper government encouragement under the state compulsion test is challenging because government influence can take many forms, such as conditional funding, legal mandates or informal pressures. That is, an attempt to “convince” is different from an attempt to “coerce.” Each instance requires a case-by-case analysis of the public-private relationship, making it difficult to establish a clear, consistent standard for when vigorous government encouragement crosses over into impermissible compulsion.

This difficulty recently took center stage in lawsuits arguing that social media platforms are subject to the First Amendment due to alleged government coercion in restricting or removing content. Although the social media companies had policies to remove misinformation, government officials were also in constant contact with these companies to remove certain posts deemed harmful or misleading, including vaccine- and coronavirus-related content. Censorship based on the latter would implicate the First Amendment but not so with the former. Under the facts of the case, it could be argued that it was not the internal policies of a private company that were the motivating factor in removing posts but the government’s encouragement.[13] 

The Entwinement Test

Finally, the entwinement test considers whether the state’s involvement in the private entity’s operations is so pervasive that the entity’s conduct can be treated as that of the state. It is within this catch-all test that factors like governance, regulation and oversight are considered.

This test is best exemplified by Brentwood Academy v. Tennessee Secondary School Athletic Association, wherein the U.S. Supreme Court determined that a statewide athletic association was a state actor, due to the pervasive entwinement of state officials in its operations – including governance, regulation and oversight – making its actions subject to constitutional scrutiny. The issue was whether certain athlete-recruiting rules violated free speech protections. The court found that the association’s regulatory activities could be fairly attributed to the state due to a confluence of factors: The majority of its members were public schools, its leadership was composed of public officials, and it operated with significant state involvement. These elements combined to create a relationship where the TSSAA’s actions were sufficiently entwined with state interests, making its conduct subject to constitutional scrutiny as state action.[14]

This case shows that the entwinement test serves as a loose framework for state‑attributable conduct. Consequently, the test is challenging to apply consistently, due to its reliance on vague, open-ended, multi‑factor analysis. Without clear criteria, courts must weigh varying factors like state involvement and integration, leading to line-drawing problems and potentially inconsistent outcomes across similar cases.

THE STATE ACTOR DOCTRINE, PUBLIC CHARTER SCHOOLS AND THE FREE EXERCISE TRILOGY

Given the rough terrain of the state actor doctrine, charter schools inevitably present challenging constitutional issues, especially in light of the U.S. Supreme Court’s recent broadening of free exercise considerations in the education realm. Charter schools occupy a unique position within the public education system, blending elements of both the public and private sectors. Although they are managed by private entities, which grants them certain autonomies typically not afforded to traditional public schools, charter schools receive public funding and operate under state regulation.[15] This hybrid nature has led to complex legal questions regarding the application of the state actor doctrine to charter schools.

In Caviness v. Horizon Community Learning Center, Inc., for example, the 9th Circuit Court of Appeals held that Horizon, a private nonprofit corporation running a charter school in Arizona, was not a state actor under 42 U.S.C. §1983 in its employment-related actions against a former teacher. The teacher argued that, as a charter school providing public education, it should be considered a state actor because public education is typically a state function. While the court acknowledged that education is a public function, it noted the relevant inquiry is not simply whether the entity performs a public function but whether the function in question has been “traditionally and exclusively the prerogative of the state.”[16]

The Caviness court relied on the U.S. Supreme Court’s decision in Rendell-Baker v. Kohn, where a private school providing special education was not deemed a state actor, even though it served a public function.[17] The 9th Circuit applied the same reasoning, concluding that while Horizon provided educational services, this did not make its actions automatically attributable to the state. The court noted that education can be provided by both public and private entities, and the fact that Horizon operated as a charter school under state law did not mean that all its actions, particularly employment decisions, were state actions.[18]

On the other hand, the 4th Circuit found that a public charter school was a state actor – albeit regarding different conduct under different circumstances. In Peltier v. Charter Day School, the 4th Circuit held that a public charter school in North Carolina was a state actor for purposes of the equal protection clause. The court determined that despite being managed by a private entity, the charter school operated as a public school under North Carolina law and was, therefore, subject to constitutional constraints. This status made the charter school accountable for its actions under the 14th Amendment, including its sex-based dress code requiring female students to wear skirts.[19]

The Peltier court distinguished this situation from Rendell-Baker v. Kohn, a case on which Caviness relied. In Rendell-Baker, the U.S. Supreme Court held that a private school for maladjusted high school students, providing education to certain students under contract with the state, did not act under color of state law when it discharged certain employees. Despite the school’s heavy reliance on public funding and extensive regulation, the court determined the school’s personnel decisions were not attributable to the state, as they were not influenced by state authority or policy.

The Rendell-Baker court held that the receipt of public funds and the performance of a public function did not make the school’s actions state actions. The school was not dominated by the state, and there was no “symbiotic relationship” like in Burton between the school and the state, reasoning that “[a]cts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”[20]

Meanwhile, starting in 2017, the U.S. Supreme Court significantly expanded protections against religious discrimination (particularly private religious schools) under the free exercise clause in three landmark cases: Trinity Lutheran Church of Columbia, Inc. v. Comer,[21] Espinoza v. Montana Department of Revenue[22] and Carson v. Makin.[23] These cases collectively established that when a state offers a public benefit, it cannot exclude religious entities solely because of their religious nature. In each case, the court struck down state policies that denied religious organizations or individuals access to generally available public benefits, emphasizing that such exclusions violated the free exercise clause by discriminating against religion.

In Trinity Lutheran, the court held that Missouri’s denial of a public grant to a church-run preschool for playground resurfacing solely because it was a religious institution violated the free exercise clause. Espinoza extended this principle by ruling that Montana could not bar religious schools from receiving public scholarship funds available to other private schools, as this exclusion was based purely on religious status. Finally, in Carson, the court further solidified this precedent by striking down a Maine program that excluded religious schools from receiving tuition assistance available to students in rural areas, finding that the exclusion based on religious use was unconstitutional.

For our purposes, it’s important to recognize that in each of these cases – Trinity Lutheran, Espinoza and Makin – the U.S. Supreme Court ruled that state constitutional or statutory provisions similar to those in Oklahoma were unconstitutional as applied to the specific programs at issue. Like laws in Oklahoma, these provisions prohibited state funds, whether directly or indirectly, from being allocated to religious institutions. However, the constitutional challenges in these cases were necessarily “as-applied” because, due to the establishment clause, these provisions could not be deemed facially unconstitutional – that is, unconstitutional in all its applications.[24] Against this backdrop, we turn to the Oklahoma case.

THE OKLAHOMA SUPREME COURT'S APPLICATION OF THE STATE ACTION DOCTRINE IN THE CHARTER SCHOOL CASE

In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court considered whether the contract between the Charter School Board and St. Isidore Catholic Virtual School violated state and federal law, including the establishment clause, the Oklahoma Charter Schools Act’s nonsectarian requirement and Article II, Section 5 of the Oklahoma Constitution, which states:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

In doing so, the court examined whether St. Isidore, as a publicly funded charter school managed by a private religious organization, was a state actor, making its religious instruction attributable to the state.

The contract between the board and St. Isidore – which, under Oklahoma law, established the school as a public virtual charter school – attempted to allow St. Isidore to function simultaneously as both a public charter school and a religious institution, incorporating significant religious elements into its operations and governance.

Key terms of the contract included:

• Religious Affiliation: Unlike the standard model, which requires charter schools to be nonsectarian, the St. Isidore contract explicitly acknowledged its religious nature. The school was permitted to fully integrate Catholic teachings into its curriculum and activities, with the contract recognizing certain rights and exemptions under state and federal law, such as the “ministerial exception” and the “church autonomy doctrine.”
• Exemption From Nonsectarian Requirements: The contract omitted the usual prohibition against religious affiliation, allowing St. Isidore to operate as a religious institution and exercise its religious beliefs and practices, diverging from the nonsectarian mandate typically required for public charter schools.
• Governance: The governance of St. Isidore was to be managed by a Board of Directors primarily composed of individuals affiliated with the Catholic Church, with no more than two non-Catholics permitted on the board, ensuring the school’s leadership remained firmly within Catholic control.
• Educational Philosophy and Mission: The contract emphasized that St. Isidore’s educational mission was rooted in Catholic teachings, with the school’s purpose defined as an instrument of the Catholic Church’s evangelizing mission.
• Oversight and Accountability: While the contract allowed for some oversight by the Charter School Board, it also recognized that St. Isidore would operate with religious exemptions not typical for other public charter schools.
• Financial Support: St. Isidore was to receive full state funding similar to other public charter schools to support its operations.[25]

The approval of this contract was contentious, with the Charter School Board narrowly passing St. Isidore’s application and final contract in 3-2 votes on June 5, 2023, and Oct. 9, 2023, respectively. The contract was formally executed Oct. 16, 2023, making St. Isidore the nation’s first state-sponsored religious public charter school.[26]

Ultimately, the Oklahoma Supreme Court held that St. Isidore of Seville Catholic Virtual School, as a public charter school, was both a governmental entity and a state actor. Consequently, the court found this contractual arrangement unconstitutional. The court ruled that, under Oklahoma law, charter schools are public schools and must remain free from sectarian control, as mandated by Article 1, Section 5 of the Oklahoma Constitution. The religious character of St. Isidore led the court to conclude that the state, through the Charter School Board, was directly funding a religious institution, resulting in state-sponsored religious activities.[27]

Missed Opportunity? The Simpler Path of the Joint Action Test

Interestingly, the court relied on the “public function” and “entwinement” tests to find state action when a more straightforward path might have been through the “joint action” test. While it recognized the availability of the other tests, the court stopped after finding that St. Isidore satisfied the criteria for state action under the “entwinement” and “public function” tests.

In applying the entwinement test, the court reasoned that the state’s deep involvement in establishing, funding and overseeing St. Isidore’s operations demonstrated a close, intertwined relationship between the state and the school, effectively making the state a participant in the school’s religious mission. The public function test was applied because St. Isidore, as a public charter school, was fulfilling the state’s constitutional obligation to provide free public education, a role traditionally and exclusively reserved for the state in Oklahoma.[28]

The use of the public function test alone here could be seen as a missed opportunity because, as discussed above, the test itself is quite limited. While it is designed to identify instances where private entities perform roles traditionally and exclusively reserved for the government, the reality is that many functions historically associated with both public and private actors, like education, fall into a gray area. The Oklahoma Supreme Court’s reliance on the public function test also puts it at odds with the 9th Circuit’s decision in Caviness, where the court ruled that a charter school was not a state actor under the public function test because education, while a function the state undertakes, is not exclusively reserved to the state. The 9th Circuit noted that education has historically been provided by both public and private entities, and thus, it does not meet the criteria for being an exclusively public function. This is consistent with Rendell-Baker v. Kohn, where the U.S. Supreme Court said, “There can be no doubt that the education of maladjusted high school students is a public function,” but courts should not stop the analysis there.[29]

Indeed, the first step in determining whether a private entity is a state actor is to identify the specific conduct that might warrant being attributed to the state. In this case, the conduct in question isn’t necessarily educational services but religious instruction. Religious instruction is inherently outside the domain of the state – that’s the whole point. Recognizing that the question is not whether a private entity is an arm of the state for all purposes but whether an action is fairly attributable to the state may have provided a way to distinguish Caviness. However, such recognition points toward using a different test.

The joint action test, on the other hand, straightforwardly examines whether a private entity is a “willful participant in joint activity with the State.”[30] And the joint action test, as applied here, may fairly subsume the entwinement test. Under the facts, “joint action” – and, thus, sufficient entwinement – can be established simply by looking at the contract’s terms.

The contract establishes St. Isidore as a public charter school – a governmental entity – managed by a private nonprofit. It explicitly includes religious instruction within a state-sponsored, publicly funded framework. By approving, funding and overseeing St. Isidore’s operations – including its religious activities – via contract, the state directly ties the school’s actions to itself, creating a joint endeavor through the contract. Indeed, it is hard to imagine more straightforward evidence of “willful participation in joint activity with the State” than such a contract.[31]

THE FUTURE OF THE STATE ACTOR DOCTRINE IN OKLAHOMA AND BEYOND

Distinguishing public from private actions in public charter schools presents significant legal challenges, hinging on the specific action under the contract with the state. Going forward, understanding how the doctrine applies here will provide valuable guidance for other situations where the government contracts with private entities to achieve public objectives. Thus, the Oklahoma Supreme Court’s ruling raises important questions about how state action is defined and how it will be applied in the future.

The complexity of the state actor doctrine and the varying tests for its application mean that future cases could turn on subtle differences in how much control or influence a state exerts over a private entity, which is subject to legislative or administrative adjustment. The court’s reliance on the subjective entwinement and public function tests leaves open the possibility that different facts applying different tests could lead to different outcomes. As charter schools – as well as other public-private cooperative agreements – continue to grow and diversify, the courts will likely see more challenges at the intersection of public funding, private management and the constitution.

On Jan. 24, 2025, the U.S. Supreme Court granted the Charter School Board’s petition for writ of certiorari, agreeing to hear the question of whether St. Isidore is a state actor, with Justice Amy Coney Barrett recusing. While that leaves open the possibility of an affirmance under a 4-4 split, this case has the potential to shape the landscape not only of public education and public endeavors more broadly but also to clarify the boundaries of state involvement in religious institutions, making it a case and an area of law to watch closely.

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ABOUT THE AUTHOR

Randall J. Yates is an attorney at Crowe Dunlevy in Tulsa, practicing in appeals, government and tribal affairs and complex commercial litigation.

 

 

 

 

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ENDNOTES

[1] For present purposes, let us set aside the other side of the state actor doctrine recognized in Lindke v. Freed: whether a state official acted in an official capacity or as a private citizen. 601 U.S. 187, 196 (2024).

[2] Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (noting that “most rights secured by the Constitution are protected only against infringement by governments.”).

[3] Lindke, 601 U.S. at 196; Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (“[W]e say that state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’”).

[4] Brentwood Acad., 531 U.S. at 295-96.

[5] Marsh v. State of Ala., 326 U.S. 501 (1946).

[6] Jackson v. Metro. Edison Co., 419 U.S. 345 (1974).

[7] Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).

[8] Lugar, 457 U.S. at 941.

[9] Id.

[10] Blum v. Yaretsky, 457 U.S. 991 (1982).

[11] Peterson v. City of Greenville, S. C., 373 U.S. 244 (1963).

[12] Shelley v. Kraemer, 334 U.S. 1 (1948).

[13] See, e.g., Missouri v. Biden, 22-CV-1213 (W.D. La 2022).

[14] Brentwood Acad., 531 U.S. 288.

[15] David French, New York Times, “Oklahoma Breaches the Wall Between Church and State,” (June 8, 2023) (“While they tend to operate separately from local public school districts (and often have private management), they’re creations of state law, highly regulated and publicly funded.”).

[16] Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 814 (9th Cir. 2010).

[17] Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

[18] Caviness, 590 F.3d 806.

[19] Peltier v. Charter Day Sch., Inc., 37 F. 4th 104 (4th Cir. 2022), cert. denied, 143 S. Ct. 2657 (2023).

[20] Rendell-Baker, 457 U.S. at 841.

[21] Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017).

[22] Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464 (2020).

[23] Carson as next friend of O. C. v. Makin, 596 U.S. 767 (2022).

[24] Bucklew v. Precythe, 587 U.S. 119, 138 (2019).

[25] Drummond ex rel. State v. Oklahoma Statewide Virtual Charter Sch. Bd., 2024 OK 53, ¶¶4-8.

[26] Id. ¶9.

[27] Id. ¶45.

[28] Id. ¶30 (“The provision of education may not be a traditionally exclusive public function, but the Oklahoma Constitutional provision for free public education is exclusively a public function.”).

[29] Rendell-Baker, 457 U.S. 830 at 842.

[30] Lugar, 457 U.S. at 941.

[31] Id.