OK Charter School Board v. Drummond (24-394)

argument 24-394

OK Charter School Board v. Drummond

Supreme Court of the United States 2h 11m 7 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the constitutional basis for challenging Oklahoma’s exclusion of religious charter schools?

John G. Roberts 0:00

We will hear argument this morning in Case 24394, Oklahoma Statewide Charter School Board v. Drummond, and the consolidated case. Mr. Campbell.

Mr. Campbell 0:10

Thank you, Mr. Chief Justice, and may it please the Court. Oklahoma's charter school program relies on private organizations to create more educational options. And it empowers those groups to innovate by giving them broad autonomy over their mission, curriculum, and operations. Fueled by private ingenuity, those schools are thriving. as they specialize in diverse subjects like Native American culture and environmental stewardship. But state law categorically bars religious groups and programs, deeming religion to be the wrong kind of diversity. That religious exclusion violates the Free Exercise Clause. This Court has held three times in the last eight years that when a state creates a public program and invites private actors, it can't exclude people or groups because they're religious.

Mr. Campbell 1:04

The Oklahoma Statewide Charter School Board is committed to this principle of religious neutrality. That's why it approved St. Isidore's application based on the strength of its proposal, refusing to reject the group because of its faith. But Respondent won't tolerate groups like St. Isidore operating in the program, so he sued to exclude them. He now argues that the First Amendment, specifically the Free Exercise Clause, is irrelevant because St. Isidore is part of the government. But it's not. St. Isidore was privately created by two Catholic organizations, and it is controlled by a privately selected board of directors. Under this Court's test, St. Isidore is neither the government nor engaged in state action.

Mr. Campbell 1:50

There are already hundreds of families that have signed up for St. Isidore. They're part of Oklahoma's community, too. They should not be treated as second class. I welcome the Court's questions.

Clarence Thomas 2:01

Well, the argument is that either you are engaging in some sort of state action, which I'd like you to at least discuss that because this isn't the normal context in which we see that, And that you are a state entity, you're a public school, a public Catholic charter school. And I think you should address that because those seem to be at the crux of the differing opinions and the argument.

Mr. Campbell 2:35

Yes, Justice Thomas. So to start with governmental entity, there are two requirements that this Court has established. The first is state creation, and the second is state control. There's no state creation here because St. Isidore was established by two private Catholic organizations, and they applied to participate in a program. They built their own charter school program. They came up with their own startup funding, and they asked to be a part. That looks nothing like what this court has found to be state creation in cases like LeBron and Biden in Arkansas. In all of those cases, the entity was created by name through special legislation. Nor is there government control here because St. Isidore is operated by a privately selected board.

Mr. Campbell 3:18

Again, in all three of the cases that my friend on the other side cites, there was a state-selected or a government-selected board. And that's different from this case because, as he admits, we don't have that here. Now, why does that matter? It's critical because a state-selected board has government control within the organization. All we have here is government oversight outside of the organization. And this Court has been clear in its state action cases that government regulation from the outside is not sufficient to constitute regulation. state control for, or I'm sorry, is not sufficient to constitute state action, let alone control for purposes of governmental entity analysis. Now moving to the state action test,

Ketanji Brown Jackson 3:58

which my friend. Before you move, can I just ask you a question about that? Because I understood that charter schools actually had to be, their curriculum was reviewed by the board and it has to be evaluated and accepted. Is that

Mr. Campbell 4:15

not

Ketanji Brown Jackson 4:16

so?

Mr. Campbell 4:16

So at the application stage, there's just a curriculum overview that's provided. The court can find it in the joint appendix on pages 19 through 20, and you can see it's very high level.