Litigation Update: OKPLAC, Inc. v. Statewide Virtual Charter School Board

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Chayila Kleist:  Hello, and welcome to this FedSoc Forum webinar call. Today, January 17, 2024, we're delighted to host a litigation update on OKPLAC, Incorporated. v. Oklahoma Statewide Virtual Charter School Board, a case concerning a recent approval of a religious charter school in the State of Oklahoma.

      My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no position on particular legal or public policy issues.

      Now, in the interest of time, we'll keep our introductions today brief, but if you'd like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

      Today we are fortunate to have with us as our moderator, Hiram Sasser, who is an Executive General Counsel for the First Liberty Institute, where he oversees First Liberty's litigation and media efforts. Mr. Sasser's practice focuses on First Amendment and other constitutional and civil rights issues that relate to religious liberty. Mr. Sasser has served as co-counsel in seven victories before the United States Supreme Court. In addition to his legal duties, Mr. Sasser develops, coordinates, and implements media strategies on behalf of his clients, which has included numerous appearances on ABC, NBC, CBS, Fox News, CNN, and the BBC, as well as being heard in a variety of radio stations throughout the United States, Asia, Africa, and Europe.

      In 2016, Mr. Sasser took a leave of absence to serve as a temporary assignment as the Chief of Staff for the Attorney General of Texas. And he currently serves as an Adjunct Professor of Law at both the University of Texas at Austin Law School, where he teaches religious liberty, and the Oklahoma City University School of Law, where he teaches civil rights procedure. And I'll leave it there.

      One last note. Throughout the panel, if you have any questions, please submit them by the question and answer feature that's found at the bottom of your Zoom screens, so they will be accessible when we get to that portion of today's webinar. With that, thank you all for joining us today.

      Mr. Sasser, the floor is yours.

Hiram Sasser:  Well, thank you so much, Chayila.

 

      Well, welcome, everyone, to this program about two cases that, while they're making their way through the Oklahoma State Court system, really have the potential to have a national impact in a few different ways.

 

      The first one is -- I call it OKPLAC, but it's OKPLAC. It's an acronym that stands for the Oklahoma Parents Legislative Advocacy Coalition (sic). And they're represented by the ACLU and some other groups that are similar, and the Oklahoma Virtual -- and they're versus the Oklahoma Virtual Charter School Board; Ryan Walters, the state superintendent; and the Oklahoma Department of Education; and St. Isidore of Seville, the Catholic Virtual School, in a separate -- there's a separate case that was filed by the attorney general of Oklahoma, Gentner Drummond—want to make sure he gets credit for this—who is taking the side of the ACLU and OKPLAC and sued the virtual charter school board and St. Isidore successfully, and then St. Isidore successfully intervened into that case.

 

      I'm Hiram Sasser, again, and I'm the executive general counsel for First Liberty. So by way of disclosure that, although I am serving as the moderator for this webinar, I'm also counsel for some of the parties involved in the litigation at various levels, including the state Department of Education and the state superintendent of instruction, Ryan Walters.

 

      Now, with us today is Mike McGinley, who is a partner at Dechert, where he is the global co-chair of the firm's Securities and Complex Litigation group. His practice focuses on high stakes litigation, including appellate and complex commercial disputes. Now, before he was at Dechert, he was at the White House Counsel's office as Associate Counsel and Special Assistant to the President. And he was responsible for many things, including the confirmation of Justice Neil Gorsuch. Mike also clerked for Justice Gorsuch when he was then Judge Gorsuch on the Tenth Circuit. He also clerked for Justice Alito at the U.S. Supreme Court. He's a graduate of Harvard Law School and did his undergrad at the University of Notre Dame.

 

      Now, Mike, throughout these cases and in cases like them, such as the case that we at First Liberty did, along with the Institute for Justice, Carson v. Makin, you hear these phrases about Blaine Amendments bantered around. So before we get started talking about the school in Oklahoma and religious charter schools, I want to -- maybe if we could get -- we could get -- dive into, and can you tell us what is a Blaine Amendment and a little bit about the history of how so-called Blaine Amendments ended up in some of these state constitutions, like Oklahoma?

 

Michael McGinley:  Sure. And thanks, Hiram. And in the interest of full disclosure as well—I don't remember if Chayila or you mentioned this—but I, and we at Dechert, represent St. Isidore in these lawsuits. Yeah. And I should say, too, we do so -- we're very blessed to do so, along with the Notre Dame Religious Liberty Clinic and really an outstanding Oklahoma lawyer, Michael Perry. And we are handling it pro bono here at Dechert, so it's something that is very important to us. And part of my practice, in addition to all the commercial matters that make money for the firm, is I do a lot of religious liberty cases, have had the pleasure of working with you in the past, Hiram, and with a number of the other folks who are involved in this case.

 

      So to your question about what is a Blaine Amendment—and knowing that I run the risk of the other people on this call, many of whom probably know even more about so-called Blaine Amendments than I do—it's basically a term that refers to constitutional amendments that were either enacted or adopted by states at the time. Or, in many settings, they were actually required as part of admission of many of the western states. That's what's true for Oklahoma. And there was a failed attempt at a federal amendment in the late 19th century that, I think, is widely accepted, was motivated largely by anti-Catholic bigotry and nativism that was present at the time. The idea of these amendments is -- goes beyond the Establishment Clause that exists in the First Amendment, says that no state aid can be provided to a sect. Typically, the way it's structured to say no aid can be provided to a sectarian institution, and that term "sectarian" was essentially code for the Catholic Church at the time.

 

      The history of them is that, after it failed at the federal level -- and they're called Blaine Amendments because the chief champion of them was a gentleman named Blaine at the time. And so, when they failed at the federal level, there was this push to get them adopted in the states. And a lot -- really, a surprising number of states adopted them during that time period. And as I mentioned, they became a condition of admission for many of the western states that were admitted to the Union in the late 19th century, early 20th century. So that's how it ended up in the Oklahoma Constitution.

 

      A few things that are worth noting for Oklahoma—and this is true of some other states—is that in some settings, states have taken a pretty wide view of their Blaine Amendments and applied them in really aggressive ways. In other settings, states have narrowed them in many instances, in the context of education-related religious liberty cases. In Oklahoma, it actually was narrowed quite early on in a case involving an orphanage that was being run by a religious order. And the Oklahoma Supreme Court, I believe, in the 1920s, actually held that the amendment only applies when the benefit being provided to the religious institution is what they call gratuitous, but it does not apply in a setting where an institution is doing something that's of value to the state. And so, that's one of the things. We'll get into that more later on, most likely. But it's just interesting history in Oklahoma.

 

      And then, also in recent years, many members of the Oklahoma Supreme Court, including many who are still sitting on the court, have gone to great lengths to stress that theirs is not a Blaine Amendment, even though all the words look like Blaine Amendments, that the court—at least members of the court—have tried to say, "No, we don't have the bigotry and animus that's present in typical Blaine Amendments."

 

      So I'll stop there. I think that you probably will have some more questions on that topic, but I'll let you tee up the next one, Hiram.

 

Hiram Sasser:  Yeah. That's an important point. There's been some cases in the past in the Oklahoma Supreme Court where they've tried to shed the title Blaine Amendment while the words appear to be the same as the other Blaine Amendments. And that might be perhaps because of some things that some past Supreme Court justices have said about Blaine Amendments. Right?

 

      So can you give us a little idea of what's the Supreme Court had to say in the past, and maybe even more recently about Blaine Amendments as such?

 

Michael McGinley:  Sure. So here we're talking about the U.S. Supreme Court. For a number of years, singular members of the Court, particularly Justice Thomas a while ago now, and Justice Alito, at times, have stressed that just the really ugly bigotry and the animus that was behind these amendments. And so, for a number of years, while the full Court did not necessarily fully address whether or not these are consistent with the First Amendment of the U.S. Constitution, particularly the Free Exercise Clause, a number of members of the Court were quite vocal about their view that these Blaine Amendments just are not compatible with the U.S. Constitution.

 

      And then, in a series of recent cases at the U.S. Supreme Court, really a trilogy of cases starting with Trinity Lutheran, then a case called Espinoza, and then, more recently, in a case called Carson v. Macon, the Supreme Court has essentially said they're not enforceable on their terms. And the basic idea behind it is that, when you have a generally available program that a state says to the public, "You can come and participate in this program," you cannot single out religious institutions or people exercising -- individuals exercising their religion for disfavorable treatment. That violates the Free Exercise Clause.

 

      And so, in Trinity Lutheran, it was a situation where a Lutheran preschool was denied the ability to get, basically, tire rubber mulch for their playground because the state said, "Sorry, our hands are tied. We can't give any kind of aid to a sectarian institution."

 

      In Espinoza, it was a tax credit, state tax credit system, for scholarship money to private schools, where they singled out religious schools and people wanting to send their children to religious schools for disfavored treatment.

 

      And then in Carson v. Macon, it was -- there's a somewhat unique program in Maine where if people lived in a place where they didn't have an available public school, they could then, basically, get a voucher to go to a private school, and Maine said they couldn't use those at religious schools. And the Supreme Court said that's not compatible with the Free Exercise Clause.

 

      And then, I think you do see, in those cases, there often were separate opinions where some members of the Court would have gone maybe even further or at least elaborated further on why these Blaine Amendments are so pernicious. And so, in particular, Justice Thomas, Justice Alito, and Justice Gorsuch, who wrote separately to talk about the history behind these and why they're so problematic.

 

Hiram Sasser:  Okay. Well, one of the interesting things about at least some of those cases that you mentioned, like in Carson v. Macon, the state was against -- our opponent was the State of Maine. In this case, a little bit—we'll get into it a little bit—it seems to be a little bit different.

 

      But before we get into that, I want to ask you:  So you represent the archdiocese of Oklahoma City, right?

 

Michael McGinley:  Well, to be technical about it—and I don't mean to be overly technical—we represent the --

 

Hiram Sasser:  Oh, sure.

 

Michael McGinley:  We represent the school.

 

Hiram Sasser:  You represent the school, but it's the archdiocese that is sponsoring the school, right?

 

Michael McGinley:  Correct. The Archdiocese of Oklahoma City and the Diocese of Tulsa, joint.

 

Hiram Sasser:  Yeah. And so, what are they trying to accomplish by offering this virtual -- the Catholic virtual school as a charter school? And what are they trying to accomplish? And then what made them decide that now is the right time to do this?

 

Michael McGinley:  Sure. It's a good question. It's a question that I think they get asked a fair amount and -- because the implicit part of the question is why not just have a voucher system or some other system where parents can send their kids to existing private schools?

 

      At some level, it's a story of COVID. We all learned that virtual learning has some minuses but also has some benefits to it. And also, everybody got a lot better at doing virtual learning. But then there's also -- the key piece of it is really Oklahoma. And the situation in Oklahoma and in many western states is different than where I live on the East Coast, where you've got dense populations and lots of choices amongst physical schools where you could send your children if you want to have a particular type of education.

 

      In Oklahoma, you've got large rural swaths of the state where people don't have that option to send their kid to a nearby school. And I want to stress the way that the virtual charter school system in Oklahoma is set up is it is open to any type of school. And, in fact, the law expressly invites all types of schools and all types of applicants. And so, for example, there might be schools that stress science or schools that stress the arts. And in this setting, the archdiocese and the diocese said, "Well, why not have a virtual charter school that is a Catholic school because there's many people in these rural parts of the state that would like to send their children to Catholic school but otherwise can't do so because there might not be an available Catholic school nearby?"

 

      And then the question of why now. Look, I think -- I don't want to speak for them. I wasn't involved in the formation. I'm their litigation counsel. But certainly, the Supreme Court's recent case law made it quite clear that existing Oklahoma state restrictions—including their Blaine Amendment, if you want to call it that—are no longer enforceable. And so, while there were some state restrictions -- state law restrictions that appeared to prohibit religious charter schools, we felt -- the school felt confident -- the diocese felt confident that those would not be enforceable.

 

Hiram Sasser:  Yeah. So basically, what you're saying is Oklahoma is a rural state. They've got some major population centers, but most of the land mass is kind of rural. If you're living in Poteau, Oklahoma, or Chouteau -- I'm not making these names up. I'm from Oklahoma. So if you're in some of those a little bit more rural areas, then the state set up this charter school program for virtual charter schools, and any program can apply. Any charter school that wants to be formed can apply, and if they meet all the criteria, can begin to offering those offerings so that there's at least some school choice in the far-flung parts of the state. So if someone's 50 miles outside of Guymon, up in the panhandle, they can take a -- they can do a charter school. So that makes sense.

 

      So, procedurally, there is two challenges to the approval: any kind of approval by any of the state agencies of St. Isidore as a charter school. Now, one's from the ACLU and some other groups that are like-minded, and that case is proceeding in the state district court in Oklahoma City. There's another case filed by the attorney general of Oklahoma, Gentner Drummond, who's also seeking to block the formation of St. Isidore as a public charter school.

 

      So tell us a little bit about -- let's talk about the first one. What's going on in the first case with the ACLU and company representing OKPLAC? That's that advocacy organization in Oklahoma. What's going on in that case now, and what's the ACLU and company -- what are they trying to achieve?

 

Michael McGinley:  Sure. And just real quickly, another thought popped into my head on your last question about why now? And I think it goes to the second action at some level, so I'll mention now, as it wasn't just that the school and the diocese felt comfortable that these state laws weren't enforceable. But the attorney general who predated Drummond, Attorney General O'Connor, had actually opined that those laws weren't enforceable under the recent Supreme Court precedents in the U.S. Constitution. So I just wanted to clarify that.

 

      And then --

 

Hiram Sasser:  Well, just --

 

Michael McGinley:  Yeah. Go ahead.

 

Hiram Sasser:  Yeah, just to sweep back on that. So, that's right. Attorney General John O'Connor had issued an opinion, an attorney general opinion, stating that it was unlawful to discriminate against a religious faith-based school applicant to be a virtual charter school. But he lost his election to Gentner Drummond, and so—the new attorney general—what did he do with that opinion, and how has that impacted the case?

 

Michael McGinley:  Yeah. So he withdrew the opinion, and then, as the virtual charter school board proceedings that led up to the approval of St. Isidore and the ultimate adoption of the charter unfolded, he made it quite clear that he didn't share his predecessor's view and that, in his view, state law prohibited this. So that -- not to jump ahead to his action, but that's essentially the basis for his action.

 

      But to get --

 

Hiram Sasser:  But back then, it was the district court. What's going --

 

Michael McGinley:  Yeah.

 

Hiram Sasser:  -- on in that district court case with the ACLU?

 

Michael McGinley:  Yeah. So what's going on there? That case was filed in the period of time between when the Statewide Virtual Charter School Board approved St. Isidore's application and when it adopted the charter. So the suit was initially filed before a charter was even adopted.

 

      There's a lot of overlap between the two suits. Both of them based -- argued that the approval of the charter and the adoption of the charter violate the Oklahoma Constitution. There's also a provision in the law that governs charter schools that says -- that mirrors the Blaine Amendment language and says that religious schools can't participate. And then there's also an -- the OKPLAC plaintiffs have brought a number of other various state law type claims—which I don't think would be particularly interesting to this audience necessarily—that are not brought in the Oklahoma attorney general's argument, and then -- in that both of them, essentially, make an Establishment Clause type of argument that St. Isidore becomes -- it has become a state actor by being a charter school, and that, therefore, they can't -- that they're bound by the same Establishment Clause restrictions that would bind the state.

 

Hiram Sasser:  Well, to be clear, is the Oklahoma attorney general or the ACLU, are they arguing a federal constitutional claim, or are they arguing only the state constitutional claim, and why does that matter?

 

Michael McGinley:  So both -- both. Now, what we have argued -- as you know, the defendants have all argued that the state claims are also governed by federal constitutional law. And it's what we were talking about earlier, where in this series of cases at the Supreme Court that have said Blaine Amendments aren't enforceable when -- or violate the U.S. Constitution when they single out religious institutions for disfavored treatment in an otherwise generally available program. And so, on the state law claims, one of our defenses, in addition to -- there's a defense that just, they're wrong in how they want to apply the state constitution and the state laws, that the Oklahoma Supreme Court has actually said that the Blaine Amendment doesn't function in the way that they say that it does. But if that argument doesn't succeed, then there is a federal defense that—same as Carson v. Macon and Trinity Lutheran and Espinoza—enforcing either the state constitutional provision or the state statutory provision would violate the Free Exercise Clause.

 

      The reason that's important, Hiram, is that it means that, most likely, the Oklahoma Supreme Court -- if either of the plaintiffs were to succeed, we could likely take the case to the U.S. Supreme Court because you have this lurking federal issue. So that's why it's important.

 

      I think that the attorney general really tries to frame his case as one that's state law and doesn't really want to acknowledge the free exercise problems with his state law argument, but it's there. And it's similar to how other cases, including Espinoza, came from the -- if I'm remembering correctly, came from the state Supreme Court. But there was jurisdiction in the U.S. Supreme Court because there was the federal issue that overlaid the state law issues.

 

Hiram Sasser:  Well, so I think that really tells a -- it leads to this question, which is: What's going to happen if the Oklahoma Supreme Court ultimately rules in favor of the ACLU and Attorney General Drummond and against St. Isidore? Well, we'll start with St. Isidore. What happens with the case?

 

Michael McGinley:  Yeah. Look, obviously, I have to be careful because we represent St. Isidore in the case. I don't want to speak out of school or say anything necessarily about our strategy or what we would do. And obviously, it's going to depend on the contours of the ruling.

 

      But to get back to the point that I was making, I do think it's hard to see a world in which this case is not open to U.S. Supreme Court review if the Oklahoma Supreme Court decides against our clients.

 

      Now, if the Oklahoma Supreme Court decides in favor of our clients and does so on the ground that state law allows this to occur, then it might not be that the plaintiffs can go to the U.S. Supreme Court, because at that point, there would be an independent, adequate state law determination that avoids the federal issue. But if we were to lose, it's hard to see a world in which that federal free exercise argument is not open to U.S. Supreme Court review.

 

Hiram Sasser:  Now, this is -- I think we alluded to this before. This is a little bit different than Carson v. Macon, which involved Maine being hostile to the religious exercise. Here, sitting on the same side of the V as your Catholic virtual charter school, is also -- you also have the State Superintendent of Instruction, Ryan Walters, the Oklahoma Department of Education, and the Statewide Virtual Charter School Board, all taking a position that puts them on the same side of the V issue.

 

      Just, if you don't mind, from your point of view, describe what you think, the positions that the government entities are taking, and why that seems to be different than some other cases, like Trinity Lutheran or Carson v. Macon.

 

Michael McGinley:  I think in some sense, and certainly, I don't want to speak for your clients or speak for --

 

Hiram Sasser:  Well, you go ahead. I'm asking your perspective.

 

Michael McGinley:  Okay. Yeah. So, look, I think the answer is, in some sense, those cases. The Supreme Court has said now in three cases that you can't enforce these laws the way that the plaintiffs would want the courts to enforce them. And I think the Oklahoma authorities deserve considerable credit for having the fortitude to say, "We're not going to make the U.S. Supreme Court—or some lower state or federal court—compel us to adhere to the Free Exercise Clause." They looked at those cases and said, "This is something" -- Attorney General O'Connor's opinion lays it out. Of course, Attorney General Drummond has taken a different view. But I think there's a very good argument, and certainly we think it's the right argument, that those three cases prevent the state law from excluding St. Isidore or any other religious institution from participating.

 

Hiram Sasser:  Yeah. I think the State Superintendent of Instruction, Ryan Walters, has said it best a couple of times, which is that their duty is to follow the law, and they're going to follow the Supreme -- they want to follow the Supreme Court precedent and do what they think is the right thing to do and based upon, especially that attorney general opinion that had earlier been on the books that was guiding everybody during the process.

 

      So now, we're talking about a couple of Oklahoma cases here, and I was born and raised in Oklahoma. That sounds real interesting to me. But, Mike, what do you think the impact of this case is going to be across the nation? Why should somebody in Washington or Oregon or Wyoming or Florida -- why should they care about these cases? What's going to be the impact?

 

Michael McGinley:  Sure. So, look, it's the same question you could have asked about Carson v. Macon, right? It was a Maine-specific statute in that sense, really kind of unique and not applicable in other states. But the overarching legal principles—the constitutional principles that are at play—apply across the country. And the unfortunate reality is that these Blaine Amendments were adopted in a widespread manner at a certain time, as we talked about earlier. And even despite efforts to repeal them at various points, a lot of states, they're still on the books. And so, the guidance that will come, either out of the Oklahoma courts or out of the U.S. Supreme Court in this case, will have an impact nationwide.

 

      And I think even at the state level, I think anybody who's participated in really any type of religious liberty litigation, but particularly in the school choice context, I think there was a long period of time where—after Zelman, when the Supreme Court weighed in, but before this more recent trilogy of cases—there wasn't a lot of guidance from the U.S. Supreme Court on how to resolve these cases, largely came up in voucher situation scholarships. There was -- ESAs were a popular method. Tax credits were a popular method for a period of time. And the different state courts looked to each other to evaluate these legal questions. And so, even if the U.S. Supreme Court doesn't have to get involved here, I do think other state courts would potentially look to how Oklahoma courts have resolved these issues if they come up in those other states.

 

Hiram Sasser:  Well, I think that's right. Most assuredly, some of the pioneers in the school of choice arena are coming up with lots of different ways to try to bring faith-based options, for example, to the table. Folks—like Jeb Bush down in Florida, was a pioneer; Betsy DeVos in Michigan, a significant pioneer, so I think that they're the first to hit the beaches, so to speak, certainly—inspired others to come along and have ultimately led to a lot of progress in terms of the doctrines as the Supreme Court has interpreted them, and so, I think you're right that there's a lot of states that will be watching this.

 

      But this is rather unique, though, Mike, because a lot of the stuff that you mentioned -- there's different programs. Arizona has got a kind of had this complicated tax-tuition-credit thing. Same thing in Montana. Maine is a straight-up voucher program. But this is a little bit different in that this is a charter school. Why is it -- is it all that different? Does it just seem different? Is it really the same? Where does it fall on that spectrum, Mike?

 

Michael McGinley:  Yeah. So our position, of course, is, legally, it isn't any different. At the end of the day, it's a generally available program, and the state can't exclude religious institutions or people wanting to exercise their religion by sending their children to a religious school from participating in that generally available program.

 

      As a practical matter, the reason why it's different is what I talked about at the beginning, about why the diocese wanted to do this, is that in a -- we here in Pennsylvania have a tax credit system similar, I think, to Montana and Arizona's. And the way that works is the money gets sent to schools, and then scholarships are made available through the schools, which is a more convoluted and indirect way, and, of course, requires there to be a physical school where the student can attend. Similarly, in a normal kind of straight-up voucher situation, where money is given to the parents to then use for schooling, the assumption is that there has to be a physical brick-and-mortar school nearby that they could send their kid -- their child to receive the type of education they want.

 

      Here, the charter school system—the virtual charter school system—provides a mechanism for the archdiocese and diocese prevent an option for parents who don't live close by (sic). And so, that's -- as a practical matter, that's what's different about this and what makes it superior in this setting for some people. Of course, the beauty of school choice is this variety, and that parents and their children can benefit from a lot of different ways in which they can obtain an education that's best for them.

 

Hiram Sasser:  So it sounds like the only difference is we're talking about virtual rather than physical. But in actuality, it seems to operate the same as any traditional voucher program, because if you're a parent and you send your kid to the virtual school, then the dollars follow the kid as if it's the same as a voucher. So in some sense, it's actually, probably, exactly the same as Maine, the only difference being brick and mortar versus virtual. Do you think I've got that about right?

 

Michael McGinley:  Yeah. I think that's right. To be fair—and I want to be fair to the other side in the litigation and what their arguments are—they would say, I think, that there's something unique about charter schools that converts them into state actors for purposes of the Establishment Clause. We don't agree with that, and we think there's ample case law that says no, in fact.

 

      And also, just under the framework of state law, it's clear that the whole point of charter schools is that they aren't public schools in the state actor sense, but instead they're private actors who essentially function as contractors with the state. And there's a lot of cases that say that just by contracting with the state, that doesn't convert you into a state actor for federal constitutional purposes.

 

      So I want to be fair that the other side would say that there is something that maybe is different in the charter school context. But again, we don't think that there is. It's just a more direct mechanism. If anything, it's just a simpler way to provide that educational choice.

 

Hiram Sasser:  Yeah. That's right. And I think that there's still the intervening parental choice happening --

 

Michael McGinley:  Correct.

 

Hiram Sasser:  -- that the Supreme Court mentioned decades ago, I guess, now as in Zelman. And so, as a result of that, it doesn't really seem to be a lot of state action issue.

 

      Well, we have some questions that have come in, in the question and answer. And folks, if you'll use the Q and A tab to bring us your questions, then we will endeavor to answer as many of those as we can with the time that we have remaining.

 

      And so, I'll hit with the first question here. This is an interesting question: Wouldn't the ACLU more likely simply accept an adverse ruling from the Oklahoma Supreme Court rather than risking a second adverse ruling from SCOTUS that would then apply nationally?

 

      Mike, are you in the heads of the ACLU?

 

Michael McGinley:  I'm not. I have deep respect for them as an institution. Certainly, they've got many really talented and smart litigators. So, yeah. You'd have to ask them on that question. I think -- yeah. I don't want to answer for them. I think that it's an interesting issue of -- somewhat of first impression because of the charter school context, and perhaps they feel like it's important to get answers on it.

 

      I do think that the question kind of does circle back to something you mentioned, Hiram, a few minutes ago, which -- what makes this case different in a lot of ways than the -- particularly in the cases at the U.S. Supreme Court where, instead of the state denying the benefit, you have the state granting it. And then you have private parties coming in and challenging it and saying, "Don't do that."

 

      And in federal court, there might be really interesting and difficult questions about standing. Certainly, we don't think that these private plaintiffs should have standing to come and challenge this when they -- I'm not entirely sure what their personal stake in the case is. State law standing doctrine is often different than federal standing doctrine, so it's one of the issues in the case. But it is worth noting that it comes in a different posture.

 

      And I think, in some ways, that's a testament to how clear the Supreme Court has been in that state officials aren't, with the -- obviously, the exception of Attorney General Drummond here, they are recognizing that they need to adhere to the Free Exercise Clause and the Supreme Court's pronouncements on it. But it does kind of point up one of the unique aspects of at least that trial court case, where it's outside groups who are coming in to challenge it.

 

Hiram Sasser:  All right. And we have another question: Is St. Isidore functioning as a charter school now?

 

Michael McGinley:  Well, the short answer is no in the sense that they are not open yet as a charter school, but yes in the sense that their charter has been adopted and they are in the process of preparing to open for the following school year.

 

Hiram Sasser:  Okay. And we have another question that Attorney General Drummond says that he opposes "Christian nationalism." I don't know if he said that. I'm just reading the question, Mike. Isn't that explicit hostility toward religion prohibited by Trinity et al.?

 

      I think really what the question -- I think what they're probably asking is that: Isn't his actions explicitly hostile towards religious exercise? And you want to offer anything about his bringing the suit -- whether his bringing the suit itself is somehow problematic under the Free Exercise Clause?

 

Michael McGinley:  Yeah. It's a -- I want to be careful because it touches on some things that are potentially live issues in the litigation. I have to confess; I don't know that I'm aware of his statement about Christian nationalism. I wouldn't want to opine on that, necessarily. He has said things, including in his briefs, that if this is allowed, then there will be schools by Muslims and other religious groups. And I think he has tried to not -- he is an elected politician. And so, they have certain incentives. I think he's trying to walk a line where he doesn't want to express hostility towards Catholicism or the Christian faith but is kind of using hostility towards the Muslim faith as a shield for that.

 

      So there is a question as to whether his effort to get the Oklahoma Supreme Court to rule in his favor, in part by making statements that do appear to be laced with some animus, would themselves present its own question of whether or not there's a unique constitutional problem with that.

 

      I think what I'd say for purposes of this discussion is we think that the law is so -- while that issue is present, it's not one that is critical, because the law is quite clear that this is permissible and that denying the virtual -- the Catholic virtual charter school or any religious institution participation in a generally available program would violate the Free Exercise Clause even without a showing of animus.

 

Hiram Sasser:  Okay. Well, we've got a great question that's come in: someone who wants to play devil's advocate, or maybe that this is their position. But I think it's a great question. It says: Why shouldn't charter schools -- well, we'll take them in part: Why shouldn't charter schools be considered state actors? Mike, why are charter schools in Oklahoma not considered state actors, in your opinion?

 

Michael McGinley:  Yeah. So, again, this is something that's live in the litigation, so I have to be somewhat careful. But I'll tell you what our position is, which is that if you look at the Supreme Court case law, and if you look at the state laws that govern it, and just the general context of charter schools, is that they are intentionally set up as not state actors so that they can do things and provide an educational setting that otherwise might not be permissible for a state actor.

 

      And so, that certainly is true in how Oklahoma law frames the charter school system -- that it's intended to be separate from the public schools and to be operated by private actors. And then, also, if you look at the U.S. Supreme Court's case law on this, for example, they've said that even a school that receives virtually all of its funding from the state does not become a state actor for federal constitutional purposes.

 

Hiram Sasser:  Well, to follow up on -- the second part of the question is: Why can't the legislature just be free to say, "Look, we just don't want these so-called sectarian schools -- we don't want to fund them?" What's wrong with the legislature saying, "Look, we don't" -- "We just" -- "Yeah. We want to allow private entities to be charter schools, but none of these sectarian schools." What's wrong with that, Mike?

 

Michael McGinley:  It's the Free Exercise Clause, right? It's the same question that's now been answered by the Supreme Court three times, which is to say the state does not have to provide a charter school system, and it doesn't have to provide it in an otherwise generally available, applicable way. But if it chooses to do those things, then it can't exclude people or institutions based on their exercise of religion.

 

Hiram Sasser:  Okay. Now, we have another person that's asked a similar question, but we'll move on.

 

      Now, here's a question here that -- oh, this was somebody just providing the quote from Attorney General Drummond. We don't need to beat that drum, so to speak.

 

      Now, are you familiar with the Peltier case from the Fourth Circuit?

 

Michael McGinley:  I am. Yeah.

 

Hiram Sasser:  Okay. Well, how do you distinguish that case where a charter school was held to be a state actor? Let's start with that. What's the difference between Peltier and Oklahoma?

 

Michael McGinley:  Well, so I think I've tackled that in two different ways. One is, in terms of the distinction, every -- for each body that there's a question of whether or not they're a state actor, that's a -- it's an analysis that's specific to that body and to the context around what it is they do, how they interact with the state, how they're set up.

 

      And so, I won't claim to know all of the intricate details of -- in Peltier, I think it was -- I think it was a Virginia charter school. I apologize if I'm getting that wrong, but obviously, it came out of the Fourth Circuit, so one of those states. I won't claim to know all the intricate details of that unique situation. But we would say, in this context, it's very clear under Oklahoma law, and also in the way that the charter itself is set up, that it is an independent private actor. It's not a state actor for purposes of the constitution.

 

      The other thing I would say, too, is just, I think, respectfully, we don't think Peltier was right, even on its own merits, or we wouldn't accept it necessarily as right. The Supreme Court denied certiorari in that case, so we don't know what the Supreme Court necessarily thought about it.

 

Hiram Sasser:  Okay. I love, by the way, Mike, how you pronounce it with the French pronunciation Peltier versus the Oklahoma/Texas way of Peltier, how I said it.

 

      But we have another question about Fulton, and whether or not Fulton -- which for -- a lot of people were disappointed in Fulton, as if it was -- it didn't overturn Employment Division v. Smith, and there's lots of things. But it was -- it was -- it's a unanimous case, and it's on a tough issue. But they're asking whether Fulton should control in this particular case. Do you have any thoughts about that? That's the case about the child placement services.

 

Michael McGinley:  Yeah. No, I don't. I guess I'd want to know a little more about what -- the question of how it would control. There's not -- I don't think there's really a Smith issue here, as much as this is really governed by Carson v. Macon, Trinity Lutheran, and Espinoza. And so, we certainly think this case fits more tightly within that framework. Obviously, a lot of what was going on in Fulton was the many members of the Court grappling with exactly how to deal with Smith.

 

      But what we have here is, in some ways, maybe the inverse, in the sense that in the Smith context, you're dealing with a generally applicable law that has the effect of preventing of exercise of religion, whereas here you've got a generally applicable program, but then a specific state law or policy that singles out religion as the sole disfavored category. So the Free Exercise violation is much more -- I don't want to say it's much more obvious, but it is just -- it's obvious under the Supreme Court's recent case law dealing with that context.

 

Hiram Sasser:  Little more Lukumi, a little less Smith.

 

Michael McGinley:  Yeah, I guess that's right. Yeah.

 

Hiram Sasser:  All right. That's right.

 

      Now, another question we have is that could a ruling in favor of St. Isidore allow them to then enroll students from outside the state of Oklahoma?

 

Michael McGinley:  That's an interesting question, and I have -- and I'm not going to -- I apologize that I can't answer it directly here, in part because I am litigation counsel handling the issues that are present in the litigation, not their state law counsel, on running the school. So I couldn't tell you necessarily whether students from outside Oklahoma could participate in an Oklahoma virtual charter school.

 

      I suppose, Hiram, not to throw it back on you, but maybe your client would have a stronger view on that. But yeah. I apologize. I can't answer that directly. I can understand why people would be interested, though.

 

Hiram Sasser:  Yeah. I have not closely studied that issue. My guess is that the answer is going to be no.

 

Michael McGinley:  That would be my guess.

 

Hiram Sasser:  But I'm going to have -- I'm going to have to check on that just to make sure.

 

      Well, here we have the king of Carson v. Macon, our co-counsel, our lead counsel, the guy who argued the -- did the oral argument, Michael Bindas, asking a question. So we better address this one. This is --

 

Michael McGinley:  Now I'm nervous.

 

Hiram Sasser:  Yeah. We got to answer this question. All right. How does the public school establishment view -- how has the public school establishment viewed the Oklahoma cases? How has the public school establishment viewed the Oklahoma cases?

 

      I haven't heard from them, Mike. Have you heard from them at all?

 

Michael McGinley:  So I can't say that I have. Now, that doesn't mean that others on the ground -- obviously, I'm here in Philadelphia, and I don't live in Oklahoma.

 

      So my -- I think the fact that OKPLAC, which I think is an organization that, at some level, purports to represent the views of at least public school teachers or those involved in the public schools, filed suit, suggests that at least some involved in the public school establishment, as you put it—or system, I guess you'd say—aren't happy with it. I don't know if that is more based on the religious aspect or more just that they might, generally speaking, not be happy with charter schools.

 

Hiram Sasser:  Well, he's got a little bit more here --

 

Michael McGinley:  Okay.

 

Hiram Sasser:  -- that he's filled in for us. And he said that in Kentucky—well, I'm now -- this is my term, not Bindas's term—the public education industrial complex argued that charter schools are not public schools.

 

Michael McGinley:  Oh, I see.

 

Hiram Sasser:  And so, as a result of that -- so in other words, there's like maybe a tension there of, "Well, we don't want them -- we don't want the religious schools to participate. We don't like school choice. But at the same time, we don't want to say that charter schools are public schools either." And so, as a result, you have to pick -- you kind of have to pick one or the other. Right? And he was just -- I think he was just asking if we've seen anyone from that milieu weigh in on this particular case.

 

      I think the answer is no; we haven't. And so, who knows? Maybe there's some -- there's some fracturing of approaches in the folks that don't like religious choices offered in any of these school environments.

 

      So I think -- Michael, I think we've addressed your question as best as we can. And thank you for winning Carson v. Macon.

 

      Well, Mike, we're coming rapidly to the close of our time. And so, I thought I might -- I might ask you -- and I think you answered it a little bit. But I think I want to ask you this—and this is an important part of what I think you're doing—is that: Look, Michael -- look, Mike, you can represent a lot of really cool clients that pay you a lot of money: banks and whatever, oil companies, whatever it is you do in your day job. Why in the world, Mike, are you taking on this extensive pro bono matter that has ballooned into -- from a district court case? Now, there's a second case going on at the Oklahoma Supreme Court where -- now you have to take on the attorney general of Oklahoma, so you're fighting the ACLU. You're fighting Americans United for Separation of Church and State. You're fighting the Freedom from Religion Foundation. You're fighting OKPLAC. You're fighting the attorney general of Oklahoma. Mike, you're coming to us from a pretty austere-looking office there, manning your foxhole. Why are you spending all this pro bono time doing this instead of billing more of your corporate clients? What's going on?

 

Michael McGinley:  So I'm curious, Hiram, whether that question was fed to you by the managing partner of the firm.

 

      No, I should say, number one, I'm blessed with a great job; it's a -- I love my job. I love the firm. Dechert welcomed me with open arms when I left the White House and decided to move back home, so to speak, to Pennsylvania. And they've been very supportive of this.

 

      And I will say, I think it's a testament to the firm's really long-standing and traditional commitment to providing counsel to people on all sides of the political spectrum and issues and recognizing that we as lawyers, in the grand tradition dating back to the founding, that we exist to take on hard cases and to help resolve difficult legal issues, and that there's something inherently good and valuable in doing that.

 

      So I'll start by saying just a thank you to my law firm, because I really am grateful that they give me this opportunity. And, of course, there's many cases where we partner with the ACLU on things or other groups that might --

 

Hiram Sasser:  Mike, I'm partnering with the ACLU on a case right now.

 

Michael McGinley:  Yeah. Yeah. There you go. I --

 

Hiram Sasser:  We're joined hands. You know if we're joined together, we got to be right.

 

Michael McGinley:  The issue must -- yeah, exactly.

 

      So, there's that. And also, obviously, for the attorneys that are involved at the law firm, it's a great learning opportunity to give them a chance to participate in complex constitutional litigation and to step forward in ways that they might not otherwise be able to in big paid cases.

 

      The other thing I'd say at a personal level is I just -- it's just something that, not only do I enjoy the legal issues, but I take it very seriously. I'm a devout Catholic, and I think religious liberty has been, in many ways, the lifeblood of this country. And I think -- and also, I grew up in an area where people didn't have all the options that they might for their educational opportunities. So I see the just incredible value in how providing people school choice can lift them up above their station and allow them to succeed in a way that they might not otherwise be able to. And I say that as the child of a public school teacher who taught for years in the public schools in Pennsylvania.

 

      And then I would say, too, I just have been really blessed, in this case in particular, to have -- I was -- I was brought into the case essentially through the Notre Dame Religious Liberty Clinic. And so, there's a deeply personal alma mater aspect to this, where the college that I attended, that I love dearly, where I met my wife, and a school that I think especially the—particularly the law school—is just really a shining beacon in the world. To be able to partner with them is really something that I treasure.

 

      And not just being able to do that, but to participate in their educational mission, too, because part of it is that it's not just a few lawyers at Notre Dame who are doing this. It's part of their clinic. And so, it helps us as practicing lawyers to give back by helping the students see: How does a case unfold? How do you -- in this setting, we're the defense. So what are the -- how are the different ways that you set up a series of layered defenses tactically? The decisions that we make -- it's all wrapped together in a way that I believe in the issues.

 

      I give the archdiocese and the diocese a lot of credit for doing this and seeing a situation where they felt like they could do good in the world and serve their people in a unique and new way, knowing that there would be litigation challenges and having the stomach to go forward and do that, and then just all of the other benefits that flow off of it.

 

Hiram Sasser:  Well, Mike, hey, I think it's been great having you here, and it's been my honor to talk with you about this. And who knows? Maybe at the end of this, you'll win this thing and get to take a picture of yourself in front of Touchdown Jesus.

 

Michael McGinley:  That would be great. Thanks, Hiram.

 

Chayila Kleist:  Well --

 

Hiram Sasser:  All right, Chayila, back to you.

 

Chayila Kleist:  Yeah. I'll wrap us out.

 

      Mr. Sasser, Mr. McGinley, thank you so much for joining us today. We really appreciate you lending us your valuable time and expertise.

 

      Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected], new email if you've been listening to these for a bit. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events.

 

      With that, thank you all for joining us today. We are adjourned.