THE OKLAHOMA BAR JOURNAL 20 | APRIL 2025 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.” Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
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