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On Wednesday, April 30, 2025, the U.S. Supreme Court heard oral arguments in Oklahoma Statewide Charter School Board v. Drummond. The question facing the Justices is whether Oklahoma’s disqualification of religious applicants from its charter-school program violates the Free Exercise Clause. The Oklahoma Charter Schools Act invites private groups of all kinds to contract with the state to establish charter schools to increase learning opportunities for students; it has produced a diverse set of options, such as schools focused on Native American culture, environmental stewardship, and language immersion. But the Act excludes one private group from participation: the religious.

Despite this categorical ban on religious charter schools, in June 2023, Oklahoma’s Statewide Charter School Board approved St. Isidore of Seville Catholic Virtual School to be Oklahoma’s eighth virtual charter school. The Board decided that it could not enforce the Act’s “nonsectarian” requirement based on a formal opinion it received from Oklahoma’s Attorney General, who advised it was “likely unconstitutional” and “should not be enforced.” The Attorney General relied on three recent Supreme Court decisions that make clear “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The Attorney General concluded that “[t]he State cannot enlist private organizations to ‘promote a diversity of educational choices,’ [70 O.S.] § 3-134(I)(3), and then decide to that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.”

But a newly elected Attorney General—Gentner Drummond—withdrew that opinion, contending that, “[w]hile many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of [St. Isidore’s] application will compel approval of similar applications by all faiths. I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith.” Days after the Board entered a charter contract with St. Isidore, the new Attorney General sued the Board, arguing it should have rejected St. Isidore’s application solely because it is Catholic.

The Oklahoma Supreme Court agreed with the Attorney General, ruling that the Board’s approval of St. Isidore violated the Act, two provisions of the Oklahoma Constitution, and the Establishment Clause. It dismissed the free exercise claims because it ruled that St. Isidore—although privately owned and operated—is both a government entity and state actor. The Board and St. Isidore (which had intervened in the state action) petitioned for certiorari on the free exercise and state-action issues, and the Supreme Court took the case.

Based on their questioning, the Supreme Court Justices seemed concerned that Oklahoma’s exclusion of religious applicants from its charter school program was, as Justice Kavanaugh put it, “rank discrimination against religion.” They also appeared skeptical of the lower court’s ruling that St. Isidore is somehow a government entity or state actor without free exercise rights.

The attorneys arguing for petitioners—Jim Campbell of Alliance Defending Freedom for the Board and Mike McGinley of Dechert LLP for St. Isidore—centered their arguments on the principle that “the Free Exercise Clause bars a state from inviting private parties to participate in an educational funding program while excluding those who exercise their faith.” Justice Alito noted that “Trinity Lutheran, Espinoza, and Carson involved grants and tax credits” while this case involves a contract, asking whether that was “a relevant constitutional distinction.” Mr. Campbell noted, “this case is potentially more dangerous because if this contract transforms St. Isidore into the government, then I worry the same thing will happen to other government contractors.” The Chief Justice similarly asked how St. Isidore’s application to operate an “education program” was any different from the religious adoption agency at issue in Fulton v. Philadelphia. And Justice Kavanaugh observed that St. Isidore was “just saying don’t treat us worse because we’re religious” and that “seems like a core principle.”

The attorney arguing for respondent General Drummond—Gregory Garre of Latham & Watkins LLP—tried to distinguish Trinity Lutheran, Espinoza, and Carson on grounds that “charter schools are public schools.” But Oklahoma’s statutory definition of “public schools” means only “free schools supported by public taxation.” Justice Gorsuch noted that Mr. Garre urged the Court “to say public schools are different from other contractors” but asked “what’s the test?” and whether the Court should look to the test in LeBron v. National Railroad Passenger Corp., in which Amtrak was held to be a government entity. As Mr. Campbell had earlier explained, that test fails to show that St. Isidore is a government entity, because it requires both state creation and state control. But neither of those requirements is satisfied because “St. Isidore was privately created by two Catholic organizations, and it is controlled by a privately selected board of directors.” Chief Justice Roberts later remarked that he didn’t understand respondent’s “creature of the state” argument because the programs at issue in Trinity Lutheran, Espinoza, and Carson were all created by the state, “and we held that under the First Amendment, you couldn’t exclude people because of their religious belief.”

Justice Kagan said that Oklahoma’s charter schools look to her “like regular public schools” and asked whether a state “has the right to have its public schools be non-religious,” as the Court said in Carson. In response, Mr. Campbell noted the many differences between charter schools and traditional government-run schools: “[T]he baseline rule . . . is that none of the rules that apply to government schools are applicable to charter schools unless the Act otherwise specifies” and “[t]he state is not running these schools”—they are “run by the privately selected board of directors in each of the schools.” Indeed, Justice Alito later remarked, “I thought the whole point of the charter schools was to offer something different from the so-called public schools.”

Although the Oklahoma Supreme Court held that St. Isidore, if not a government entity, would “nonetheless be deemed a state actor” under the Supreme Court’s state-action doctrine, respondent did not emphasize that point in the argument. Justice Thomas asked Solicitor General John Sauer—arguing for the United States, which appeared as amicus curiae in support of petitioners—to explain his argument that the state-action doctrine is not applicable. General Sauer noted that even respondent in his brief agreed that “the state-action doctrine is not the correct framework here.” When Justice Sotomayor nevertheless invited Mr. Garre to state his state-action theory because it “hasn’t been discussed that much,” he argued only that Oklahoma had outsourced to charter schools its duty to educate children and thus under West v. Atkins was a state actor. But, Mr. Campbell explained, Oklahoma did not outsource its duty like the prison did in West because the state continues to offer education in its government-run schools. And in Rendell-Baker v. Kohn, the Supreme Court expressly held that a state’s duty under state law to educate children in no way turns a school that educates children on the state’s behalf into a state actor.

Justice Jackson noted that St. Isidore’s “contract provides money and support for private entities . . . and so we can assume this is a private entity,” but asked whether St. Isidore is seeking “the same public benefit as everyone else,” which is “to establish a secular school.” But Mr. Campbell explained that “building the secular requirement into the definition of the benefit creates the same error that this Court corrected . . . in Carson.” There, the State of Maine argued that “the public benefit Maine is offering is a free public education” that must “be secular.” The Court rejected the argument, observing that “‘[t]he definition of a particular program can always be manipulated to subsume the challenged condition,’ and to allow States to ‘recast a condition on funding’ in this matter would be to see ‘the First Amendment reduced to a simple semantic exercise.’”

Justices Kagan and Sotomayor asked numerous questions about the downstream effects of a ruling for petitioners. Although St. Isidore has promised to welcome any and all students, Justice Kagan asked whether a religious school that teaches only members of its own faith could challenge Oklahoma’s requirement that it not limit admissions. General Sauer explained that situation would be very different, because “[o]pen to all comers” appears to be “a neutral and generally applicable criterion” under a Smith analysis.

Finally, there were a number of questions from the Justices regarding the effect that a decision in the case might have on the 46 other states with charter school programs. But these programs differ by state, with some charter schools controlled by directors who are public officials, and states retain the option as to how these programs are designed. As Justice Gorsuch asked, “[s]o a holding here . . . may apply in some states and many not apply in others?” And as Justice Kavanaugh noted, “a state could easily design a different kind of charter schools system where they really were government-run, government-controlled, government-created, government-established private charter schools.”

A decision in Drummond is expected by early summer.