APRIL 2025 | 21 THE OKLAHOMA BAR JOURNAL 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 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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