Volume 96 — No. 4 — April 2025 ALSO INSIDE: Judicial Nominating Commission Elections The OBA Remembers: 30th Anniversary of the Murrah Building Bombing Solo & Small Firm Conference Returns for 2025 • Milestone Bar Member Anniversaries Constitutional Law
contents April 2025 • Vol. 96 • No. 4 PLUS 38 The OBA Remembers: 30th Anniversary of the Murrah Building Bombing 40 Judicial Nominating Commission Elections 44 Milestone Bar Member Anniversaries 50 Jenks High School Named Mock Trial State Champion By Todd A. Murray 55 Law Day 2025: Volunteers Needed! 56 Solo & Small Firm Conference Returns for 2025 60 Oklahoma Chief Justice Colloquium on Civility and Ethics THEME: Constitutional Law Editor: Melanie Wilson Rughani FEATURES 6 Playing the Odds: What’s Next for Religion in Schools? By Brent Rowland 14 End-Running the First Amendment in Public Schools? Lessons on the State Actor Doctrine From Oklahoma’s Religious Charter School Case By Randall J. Yates 24 Procedural Due Process and the Oklahoma Medical Marijuana Authority By Nada N. Higuera 30 First Among Equals: The Division of Executive Power Between the Governor and the Attorney General By John Tyler Hammons DEPARTMENTS 4 From the President 64 From the Executive Director 70 Ethics & Professional Responsibility 72 Law Practice Tips 76 Board of Governors Actions 80 Oklahoma Bar Foundation News 84 For Your Information 86 Bench & Bar Briefs 88 In Memoriam 91 Editorial Calendar 92 Classified Ads 96 The Back Page PAGE 50 – Jenks High School Named Mock Trial State Champion ON THE COVER: “Supreme Court Building, Washington, D.C.” by Amanda Lilley Amanda Lilley is an OBA member and watercolor artist whose artwork has been shown in exhibitions across Oklahoma, Kansas and Texas. Based in Enid, she practices in the area of criminal defense law. Her online gallery may be viewed at www.simplylilley.com.
THE OKLAHOMA BAR JOURNAL 4 | APRIL 2025 For any of you who may be fact-checkers, feel free to confirm that King John brought foreign nationals into his circle of advisors, which caused both resentment in the barons and highlighted for the general population the national identity of Englanders. You will also find that King John imposed heavy tax burdens on England to finance his military efforts to reclaim lands lost in prior wars. He also imposed confiscation of lands and holdings of widows for the same purpose. With regard to the Jews, there was a relatively small population of Jews in England at this time, but they served as financiers, which gave rise to conflicts in which King John was involved. So what was the Great Charter about? From Professor David Carpenter’s book Magna Carta: The Charter was above all about money. Its overwhelming aim was to restrict the king’s ability to take it from his subjects. Another major thrust was in the area of law and justice. The Charter wanted to make the king’s dispensation of justice fairer and more accessible, while at the same time preventing his arbitrary and lawless treatment of individuals. Even though most of us remember Sir William Blackstone for his treatise, Commentaries on the Laws of England (1765-1769), he is also credited with establishing a numbering system for the provisions of the Magna Carta. Chapters 40 and 39 are the two chapters that, in my opinion, cause the Magna Carta to still be revered today. Chapter 40 simply states, “To no one will we sell, to no one will we deny or delay, right or justice.” Chapter 39 states: THE RULER’S EXECUTIVE ORDERS WERE A problem for the rebellious house of representatives. Other concerns were the ruler’s elevation of foreign- born individuals without regard to the impact on the resident population and the ruler’s insistence upon arbitrary taxes, as well as his confiscatory policies, not to mention the ruler’s conflict with the Jews. Ultimately, the house of representatives passed a bill that the ruler could not veto, and for a time, it seemed that the conflict was resolved. Does that sound sort of familiar? Yes, no, maybe? From Inventing Freedom by Daniel Hannan: On June 15, 1215, in a field near Windsor an event of truly planetary significance took place. For the first time, the idea that governments were subject to the law took written, contractual form. The king [King John] put his seal to a document that, from that day to this, has been seen as the foundational charter of Anglosphere liberty: Magna Carta. Unfortunately, within six months, King John disregarded the Great Charter (or Magna Carta) and plunged England into the civil war that the barons (precursors to England’s representative house of Parliament) sought to avoid. But, as Mr. Hannan stated in Inventing Freedom, “Just as that war seemed to be on the point of stalemate, the providentially bad monarch (King John) rendered one last service to England by dying opportunely in Newark Castle in October 1216 (almost certainly of dysentery, and sadly not, as one source claims, from a surfeit of peaches).” The Magna Carta’s Everlasting Impact From the President By D. Kenyon “Ken” Williams Jr. D. Kenyon “Ken” Williams Jr. is a shareholder and director at Hall Estill in Tulsa. 918-594-0519 kwilliams@hallestill.com (continued on page 66)
APRIL 2025 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN DAVIS Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org Volume 96 — No. 4 — April 2025 D. KENYON WILLIAMS JR., President, Sperry; AMBER PECKIO, President-Elect, Tulsa; RICHARD D. WHITE JR., Vice President, Tulsa; MILES PRINGLE, Immediate Past President, Oklahoma City; JOHN E. BARBUSH, Durant; BENJAMIN J. BARKER, Enid; CODY J. COOPER, Oklahoma City; KATE N. DODOO, Oklahoma City; PHILIP D. HIXON, Tulsa; JANA L. KNOTT, El Reno; CHAD A. LOCKE, Muskogee; WILLIAM LADD OLDFIELD, Ponca City; TIMOTHY L. ROGERS, Tulsa; NICHOLAS E. THURMAN, Ada; JEFF D. TREVILLION, Oklahoma City; LUCAS M. WEST, Norman; TAYLOR C. VENUS, Chairperson, OBA Young Lawyers Division, Enid The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $85 per year. Law students registered with the OBA and senior members may subscribe for $45; all active members included in dues. Single copies: $8.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2025 Oklahoma Bar Association. 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. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director; Gina L. Hendryx, General Counsel; Chris Brumit, Director of Administration; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Gigi McCormick, Director of Educational Programs; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; John Morris Williams, Executive Consultant; Julie A. Bays, Practice Management Advisor; Loraine Dillinder Farabow, Jana Harris, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels Barbara Acosta, Taylor Anderson, Les Arnold, Allison Beahan, Gary Berger, Hailey Boyd, Cassie Brickman, Cheryl Corey, Lauren Davis, Nickie Day, Ben Douglas, Melody Florence, Matt Gayle, Emily Buchanan Hart, Steve Jagosh, Debra Jenkins, LaRica Krischel, Rhonda Langley, Durrel Lattimore, Renee Montgomery, Jaycee Moseley, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair BECKY R. BAIRD, Miami MARTHA RUPP CARTER, Tulsa NORMA G. COSSIO, Enid MELANIE WILSON RUGHANI, Oklahoma City EVAN A. TAYLOR, Norman ROY TUCKER, Muskogee MAGDALENA A. WAY, El Reno DAVID E. YOUNGBLOOD, Atoka
APRIL 2025 | 7 THE OKLAHOMA BAR JOURNAL Constitutional Law Playing the Odds: What’s Next for Religion in Schools? By Brent Rowland OKLAHOMANS LOVE THEIR CASINOS. We have more than any other state – 143 offering slots, blackjack and off-track betting.1 They don’t take bets on U.S. Supreme Court decisions, but as attorneys, wouldn’t it be great to know odds? Part of our work is playing the odds. We strategize based on factors like controlling precedent or persuasive case law and what we know about the judge’s prior decisions. I’m not setting odds on constitutional questions before the Supreme Court, but I wondered: If we look at the court’s decisions on religion in schools, what trends might stand out? What characteristics of the cases and the court could be generalized so that correlations among them might help explain how the court has decided cases in the past and possibly predict how it’ll decide the cases currently before it? And what would that data predict about the outcome of an Oklahoma case awaiting argument before the court, the St. Isidore case,2 a decision that could provide public funding for private religious schools in the U.S. like never before? IDENTIFYING AND DEFINING CHARACTERISTICS OF THE CASES AND THE COURT The court’s religion-in-schools cases fall into two categories: those deciding whether religious practices violate the establishment or free exercise clauses of the First Amendment3 and those determining how government funding can support religious schools without breaching the separation of church and state. As for characteristics of the court, the justices on the court and the era that shaped it can be sufficiently identified with the chief justice who presided over it. For example, the Warren Court, contemporaneous with the civil rights movement, stands out for its activism on religion-in-schools issues like state-sponsored prayer and scripture reading.4 Is there a similar identifiable tendency for each court? And do those tendencies hold true when deciding funding issues as well as religious practice issues? A court’s stance on any case, a characteristic of its jurisprudence, can be characterized as activist or restraintist. Courts take an activist stance when they: 1) strike down arguably constitutional actions of other governmental actors; 2) ignore controlling precedent from a higher court or the court’s own previous decisions; 3) legislate from the bench; 4) deviate from accepted canons of interpretation to reach a decision; or 5) engage in result-oriented decision-making.5 Conversely, when not exercising activism, courts are practicing restraint. 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.
THE OKLAHOMA BAR JOURNAL 8 | APRIL 2025 Just as that dichotomy can be used to describe a court’s stance on jurisprudence in general, the court’s approach to religion-inschools cases, in particular, adds a layer of data that may make its future decisions more predictable. Erwin Chemerinsky presents three competing approaches the court can take to its application of the establishment and free exercise clauses.6 The first approach is strict separation, maintaining a wall of separation between government and religion to the greatest extent possible.7 In the second approach, neutrality, the court expects the government to remain neutral on religion by neither favoring religion over secularism nor one religion over any other.8 Applying a neutralist approach, courts read the establishment and free exercise clauses together so that religious classification provides no basis for the government to confer any benefit or impose any burden; government neither endorses nor disapproves of religion.9 Accommodation, the third approach, says the government accommodates a relationship with religion based on its significance to society and culture.10 As an example, in the accommodationist view, the government would only violate the establishment clause by literally establishing a church or coercing participation in a religion.11 BRINGING CHARACTERISTICS TOGETHER IN ONE TABLE Figure 1 is a chronological list of the Supreme Court’s religionin-schools cases since the Vinson Court, with additional columns to show the nature of the issue as funding or religious practice; whether the decision was based on the establishment clause, the free exercise clause or another First Amendment freedom; the court’s holding – constitutional if it upheld the government’s law or action, unconstitutional if it didn’t; the court’s stance on the case as activist or restraintist; and its approach to the case as separationist, neutralist or accommodationist.12 Reasonable minds could reach different conclusions about the court’s stance on and approach to a given case. Their inclusion on the table doesn’t make them definitively correct. Their importance is in the invitation to think beyond what the court explicitly says in its opinions and to look at the unspoken beliefs that shape its decisions, yielding trends in the court’s past reasoning that offer clues about its future rulings. LOOKING FOR TRENDS IN THE DATA Now that the table – the “racing form” – is built, let’s turn to the data. What observations stand out? First, the issue most commonly brought before the court has shifted from religious practice to government funding. Before 1993, only three of 14 cases concerned funding issues. Since 1993, of the nine religion-in-schools cases the Supreme Court has heard, seven of those addressed funding, with three of the seven decided since 2017 by the Roberts Court. Second, the court’s constitutional rationale has shifted over time. Before 1993, the establishment clause was the basis for 85% of religion-in-schools cases – or 12 of 14 decisions. In contrast, from 1993 on, less than half of the cases, four of nine, were decided on the establishment clause. The majority of cases relied on free exercise, with one, Kennedy v. Bremerton,13 incorporating free exercise and freedom of speech. Every case before the Roberts Court has involved free exercise. Although the increase in challenges to government funding of religious schools has coincided with increased reliance on the free exercise clause, the two don’t appear in the same case as often as one might expect. Of the 10 funding cases the court has addressed, only four were decided on the free exercise clause. All four of those cases were decided after 2004. Every funding decision in the last 20 years, including three opinions from the Roberts Court, has been based on free exercise. Here, a pattern emerges that’s likely predictive. Before the Roberts Court, only the Warren Court consistently took an activist stance. To date, the Roberts Court has done the same, invalidating the government’s action in each of the religion-inschools cases it’s heard. As for approach, every previous court has been mixed in their application – sometimes separationist, sometimes neutralist, rarely accommodationist. The Roberts Court, however, has invariably accommodated religion both in government funding programs and in questions of religious practice. But here’s a twist: Prior to 1995, every funding case before the Supreme Court challenged the government’s use of funds to somehow support religion – paying for parochial school buses, allowing tax credits for families’ parochial school expenses or providing for a sign language interpreter in a religious school. Beginning 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.
APRIL 2025 | 9 THE OKLAHOMA BAR JOURNAL 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. FIGURE 1: COMPARISON OF RELIGION-IN-SCHOOLS CASES Vinson Court, 1946 to 1953 Case Issue Basis Holding Stance Approach Note Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947) Funding: State funds were used to pay parochial students’ bus fares to get to and from school. Establishment Clause Constitutional Restraintist Separationist The result seems neutral. But the court said, “[The] wall (between church and state) must be kept high and impregnable.” (18). McCollum v. Bd. of Ed., 333 U.S. 203 (1948) Religious practice: A public school released students to religious classes during school hours in the school building. Establishment Clause Unconstitutional Activist Separationist Reasoning: Taxsupported school buildings were being used for the dissemination of religious doctrine. Zorach v. Clauson, 343 U.S. 306 (1952) Religious practice: A public school released students during school hours for religious class off school grounds. Establishment Clause Constitutional Restraintist Accommodationist Allowing students to receive religious instruction during school was accommodating religion – no government funds or facilities were used. (313). Warren Court, 1953 to 1969 Case Issue Basis Holding Stance Approach Note Engel v. Vitale, 370 U.S. 421 (1962) Religious practice: The state created a prayer that public schools led each morning. Establishment Clause Unconstitutional Activist Separationist Reasoning: The government-composed prayer constituted a state endorsement of religion. Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963) Religious practice: A public school began each day with the Lord’s Prayer and a Bible reading. Establishment Clause Unconstitutional Activist Neutralist The court said, “[F]ree Exercise ... never meant that a majority could use the machinery of the State to practice its beliefs.” (226). Epperson v. State, 393 U.S. 97 (1968) Religious purpose: State law illegalized the teaching of evolution. Establishment Clause Unconstitutional Activist Separationist Reasoning: The law was derived from a particular religious doctrine of a particular religious group. Burger Court, 1969 to 1986 Case Issue Basis Holding Stance Approach Note Lemon v. Kurtzman, 403 U.S. 602 (1971) Funding: Public funds supplemented parochial teachers’ salaries for secular subjects that used public textbooks. Establishment Clause Unconstitutional Activist Separationist Established the threepart Lemon Test, including the excessive entanglement prong. Wisconsin v. Yoder, 406 U.S. 205 (1972) Religious practice: State compulsory schooling laws disrupted the Amish way of life and parents’ right to direct children’s religious upbringing. Free Exercise Clause Unconstitutional Activist Accommodationist Reasoning: Amish families’ right to free exercise outweighed the state’s interest in compelling school attendance.
THE OKLAHOMA BAR JOURNAL 10 | APRIL 2025 Stone v. Graham, 449 U.S. 39 (1980) Religious observation: The state planned to place a copy of the Ten Commandments in every public classroom using private funds. Establishment Clause Unconstitutional Activist Separationist Reasoning: The act was religious in nature, and not all commandments are secular. The establishment clause was violated using the Lemon Test. Widmar v. Vincent, 454 U.S. 263 (1981) Religious practice: A state university denied a religious group the use of facilities for religious meetings. Freedoms of Speech and Association Unconstitutional Activist Neutralist Reasoning: Excluding religious speech is not necessary in order to comply with the establishment clause. Mueller v. Allen, 463 U.S. 388 (1983) Funding: A state income tax credit for education expenses was available to public and parochial school students. Establishment Clause Constitutional Restraintist Neutralist The court applied the Lemon Test. It also found the statute was neutral on its face. Wallace v. Jaffree, 472 U.S. 38 (1985) Religious practice: State law required one minute of silence in public schools for meditation or prayer. Establishment Clause Unconstitutional Activist Separationist The court applied the Lemon Test. Its reasoning: Legislative intent clearly intended the measure to return prayer to schools. Rehnquist Court, 1986 to 2005 Case Issue Basis Holding Stance Approach Note Edwards v. Aguillard, 482 U.S. 578 (1987) Religious practice: State law required public schools that teach evolution to teach creation science also. Establishment Clause Unconstitutional Activist Separationist The court applied the Lemon Test. Its reasoning: The court found that the law’s primary purpose was to endorse a particular religious doctrine. Lee v. Weisman, 505 U.S. 577 (1992) Religious practice: Clergy delivered prayer at a public school graduation. Establishment Clause Unconstitutional Activist Accommodationist Reasoning: The court found coercion to participate in prayer, which violates the establishment clause, even from an accommodationist approach. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) Funding: A government-funded interpreter accompanied a deaf student to parochial school classes. Establishment Clause Constitutional Activist Neutralist Activist because it seems inconsistent with the ruling in Lemon. Neutralist because the government provided benefits without reference to religion. Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819 (1995) Funding: State university assistance provided to secular groups was denied to a religious student group that published a campus magazine. Freedom of Speech; Establishment Clause Unconstitutional as to Speech; Constitutional as to Establishment Activist Neutralist Reasoning: Free speech must be promoted equally. Activist because of the shift from the earlier decision in Rust v. Sullivan, 500 U.S. 173 (1991). 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.
APRIL 2025 | 11 THE OKLAHOMA BAR JOURNAL 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. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) Religious practice: A public high school elected a student to lead a prayer over a public address system at each football game. Establishment Clause Unconstitutional Activist Separationist Reasoning: Prayer was authorized by the government and government-sponsored on government property. Many students were required to attend the games. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Funding: The state provided tuition vouchers students could use to attend any private school, secular or religious. Establishment Clause Constitutional Activist Neutralist Reasoning: “[B]enefits are available to ... families on neutral terms, with no reference to religion.” (653). Locke v. Davey, 540 U.S. 712 (2004) Funding: A state scholarship program included religious colleges but not ministerial studies because the state constitution prohibited public funding of religion. Free Exercise Clause Constitutional Restraintist Neutralist Reasoning: The state could allow scholarships to be used by students studying for ministry, but denying it doesn’t violate the free exercise clause. Roberts Court, 2005 to Present Case Issue Basis Holding Stance Approach Note Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) Funding: The state gave grants to resurface playgrounds but denied a grant to a church school because the state constitution prohibited public funds for religion. Free Exercise Clause Unconstitutional Activist Accommodationist Reasoning: The state denied an otherwise available public benefit because of a school’s religious status. Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464 (2020) Funding: State tax credit was prohibited for religious schools because the state constitution prohibited funding religion. Free Exercise Clause Unconstitutional Activist Accommodationist Reasoning: The state must have a compelling reason and no alternative any time it denies benefits to religious institutions that it allows to secular ones. Carson as next friend of O. C. v. Makin, 596 U.S. 767 (2022) Funding: The state provided funds to attend private schools in rural areas without public schools but did not allow funds for religious schools. Free Exercise Clause Unconstitutional Activist Accommodationist “A state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (778). Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) Religious practice: A public school coach was fired for kneeling and praying midfield after games. Freedom of Speech; Free Exercise Unconstitutional Activist Accommodationist Reasoning: “The District sought to restrict Kennedy’s actions at least in part because of their religious character.” (508).
THE OKLAHOMA BAR JOURNAL 12 | APRIL 2025 with Rosenberger v. Rector,14 the cases flipped as to the government action being challenged. Since then, the court has only decided cases in which the government denied funding based on religion. All three of the funding cases before the Roberts Court have challenged the government’s denial of funding to schools or families based on religion. The Roberts Court has found the government’s action to be unconstitutional each time. USING THE DATA TO MAKE A PREDICTION ABOUT THE COURT’S DECISION IN ST. ISIDORE What does all this predict for the government funding of St. Isidore as a religious school? In the St. Isidore case, the Oklahoma City and Tulsa Catholic dioceses applied to the Oklahoma Statewide Charter School Board15 to approve their contract to make St. Isidore of Seville Catholic Virtual School a statewide public charter school.16 As the name suggests, St. Isidore plans to operate as a Catholic school and incorporate the teachings of the Catholic Church into every aspect of the school, including curriculum.17 The board approved their contract.18 The Oklahoma Supreme Court held that the contract violated the Oklahoma Constitution and the Oklahoma Charter Schools Act, which prohibit the state from using public money for the benefit of religious institutions and require charter schools to be public and nonsectarian.19 The Oklahoma Supreme Court reasoned that when St. Isidore asked to be funded as a public school, it also applied to become a governmental entity and a state actor bound by the separation of church and state. The court distinguished St. Isidore’s case from those in which it allowed state-funded scholarships to be used at private religious schools because those scholarship funds did not directly fund religious institutions but instead went to families who made the choice to use the state funds at religious schools.20 St. Isidore’s Catholic identity increases its attraction as a religion-in-schools test case because it brings to mind the anti-Catholic roots of the failed federal Blaine Amendment of the 19th century and the present challenges to state laws that Oklahoma and other states have enacted to prohibit public support of religious institutions.21 Considering the trend data that indicates the Roberts Court is persistently activist in its stance, it’s no surprise that the court is hearing the case and has scheduled oral argument in St. Isidore for April 30. What’s more, the Roberts Court has applied a consistently accommodationist approach in cases where the state is challenged for denying benefits based on an institution’s religious status. So here, where a challenge to the government’s denial of funding is based on the free exercise clause and is brought before a court whose record is activist and accommodationist, the data suggests the U.S. Supreme Court will likely overrule the Oklahoma Supreme Court and accommodate St. Isidore as a religious charter under the Oklahoma Charter Schools Act. As with any gamble, playing the odds doesn’t guarantee a win. The court may instead find that the school’s church-based policies in admissions and operations discriminate in ways that disqualify it from public funds. St. Isidore 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. After looking at the types of religion-in-schools cases the Supreme Court has heard, analyzing the kinds of cases in which the court has been activist or restraintist and considering its tendencies to be separationist, neutralist or accommodationist, we may be able to predict the court’s decision in St. Isidore more accurately than we could a hand of poker.
APRIL 2025 | 13 THE OKLAHOMA BAR JOURNAL maintains it will be Catholic in all aspects, including church-based policies in admissions and operations that could potentially be challenged as discriminatory. St. Isidore also asserts it is a private – not public – school, despite Oklahoma’s statutory definition of a charter school. The court could also object to the state providing funding to a religious institution in such a direct way, as opposed to the indirect government funding it has upheld in cases involving tax credits or vouchers to attend private religious schools. CONCLUSION After looking at the types of religion-in-schools cases the Supreme Court has heard, analyzing the kinds of cases in which the court has been activist or restraintist and considering its tendencies to be separationist, neutralist or accommodationist, we may be able to predict the court’s decision in St. Isidore more accurately than we could a hand of poker. But courts aren’t casinos. We don’t go there for the entertainment value or the loose slots. We go to the court for justice and to keep the constitution alive in our laws and policies. In that endeavor, may the odds be forever in our favor. ABOUT THE AUTHOR Brent Rowland is the legal director and one of the attorneys for the Oklahoma Appleseed Center for Law and Justice (OK Appleseed), a public interest organization based in Tulsa. OK Appleseed works through community organizing, legislative advocacy and litigation in the areas of education, youth and criminal justice to protect the rights of and promote opportunities for all Oklahomans. Mr. Rowland is a graduate of the TU College of Law. ENDNOTES 1. The Oklahoman, https://bit.ly/41Fh7NS, (last visited Nov. 29, 2024). 2. Okla. Statewide Charter Sch. Bd. v. Drummond, Docket No. 24-294, SCOTUSblog, https://bit.ly/43gGBlC, (last visited Nov. 29, 2024) (awaiting certiorari at the time of writing, Dec. 3, 2024). 3. U.S. Constitution, Amendment I. 4. Rebecca E. Zietlow, “The Judicial Restraint of the Warren Court (and Why It Matters),” 69 Ohio State L. J. 255 (2008). 5. Fern Fisher, “Moving Toward a More Perfect World: Achieving Equal Access to Justice Through a New Definition of Judicial Activism,” 17 CUNY L. Rev. 285 (2014), citing Keenan D. Kmiec, “The Origin and Current Meanings of ‘Judicial Activism,’” 92 Calif. L. R. 1441 (2004). 6. Erwin Chemerinsky, Constitutional Law 1524, Aspen Publ’g (7th ed. 2024). 7. Id. 8. Id. 9. Id. quoting Lynch v. Donnelly, 465 U.S. 668, 694 (1984). 10. Id. at 1527. 11. Id. 12. See Figure 1: Comparison of Religion-inSchools Cases. 13. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). 14. Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). 15. Formerly the Oklahoma Statewide Virtual Charter School Board. 16. Drummond ex rel. State v. Oklahoma Statewide Virtual Charter Sch. Bd., 2024 OK 53, 558 P.3d 1. 17. Id. at 6. 18. Id. 19. Id. at 7-9. 20. Id. at 10, citing Oliver v. Hofmeister, 2016 OK 15, 368 P.3d 1270. 21. See generally Ward M. McAfee, “The Historical Context of the Failed Federal Blaine Amendment of 1876,” 2 First Amend. L. Rev 1 (2003), available at https://bit.ly/3EW58m7. See also Frederick M. Gedicks, “Reconstructing the Blaine Amendments,” 2 First Amend. L. Rev. 85 (2003), available at https://bit.ly/3EW5clR (explaining state Blaine Amendments in light of recent U.S. Sup. Ct. decisions). 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.
THE OKLAHOMA BAR JOURNAL 14 | APRIL 2025 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. IN DRUMMOND V. OKLAHOMA STATEWIDE VIRTUAL CHARTER SCHOOL BOARD, the Oklahoma Supreme Court invalidated the nation’s first religious public charter school. The court ordered the Oklahoma Statewide Virtual Charter School Board to rescind its contract establishing St. Isidore Catholic Virtual Charter School, finding that the contract – which permitted a private organization affiliated with the Catholic Church to operate a virtual charter school within Oklahoma’s public education system, fully integrating religion and religious teachings into its curriculum and activities – violated both the Oklahoma Constitution and the establishment clause. Central to the court’s reasoning in invalidating the contract was its application of the state actor doctrine, which determines when a private entity’s conduct is subject to constitutional scrutiny, usually reserved for state actions.1 The court concluded that St. Isidore’s religious instruction and related activities were fairly attributable to the state, making the establishment clause and relevant state constitutional provisions applicable to the school, as they would be to any other public school. Through this case, this article takes a closer look at the state actor doctrine and its application when private entities are engaged in public endeavors. UNDERSTANDING THE STATE ACTOR DOCTRINE Constitutional protections, especially under the Bill of Rights and the 14th Amendment, typically apply to government actions, not private entities.2 But when governments collaborate with private entities through partnerships, contracts or incentives, the line between public and private action can blur, raising constitutional questions. The state actor doctrine provides a framework for determining when private conduct should be treated as government action and subject to constitutional limits. Courts consider factors like the level of state involvement, whether the private entity performs a function traditionally reserved for the state and the extent of state influence over the entity’s actions. When a private entity is deemed a state actor, its Constitutional Law End-Running the First Amendment in Public Schools? Lessons on the State Actor Doctrine From Oklahoma’s Religious Charter School Case By Randall J. Yates
APRIL 2025 | 15 THE OKLAHOMA BAR JOURNAL 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. actions must comply with constitutional protections, just as if the government itself was acting directly. The doctrine evolved largely in response to the limitations revealed by the Civil Rights Cases of 1883. In those cases, the U.S. Supreme Court held that the 14th Amendment did not apply to private acts of discrimination by privately owned businesses. But that left a gap in constitutional protections where state involvement, though ostensibly absent, was actually driving private conduct. Critical to determining whether a nominally private person or entity has engaged in state action is whether that action is “fairly attributable to the State.”3 The U.S. Supreme Court has developed several tests to make this determination. These tests include: 1) Public Function Test: This test asks whether the private entity is performing a function that is traditionally and exclusively the prerogative of the state, such as running elections or operating a town. 2) Nexus or Joint Action Test: This test examines whether there is a close relationship between the state and the private entity, such that the private entity’s actions can be considered those of the state. This could include situations where the state and the private entity are working together or where the state has a significant influence on the private entity’s actions. 3) State Compulsion Test: Under this test, a private entity may be considered a state actor if the state has coerced, compelled or significantly encouraged the private conduct in question. 4) Entwinement Test: This test considers whether the state is so entwined with the private entity’s operations that the private entity’s actions can be seen as those of the state, often taking into account factors like governance, regulation and oversight.
THE OKLAHOMA BAR JOURNAL 16 | APRIL 2025 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. These tests may overlap, and the U.S. Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Association cautioned that determining whether an action is fairly attributable to the state is a complex and contextdependent judgment.4 No single factor universally dictates state action, and the decision must consider a range of factors. Even if certain conditions suggest state involvement, other reasons might still prevent attributing the action to the government. Still, these tests help courts determine when constitutional protections should apply to private actions, ensuring that the state’s influence or involvement does not bypass fundamental rights. With that in mind, we will now delve deeper into each test. The Public Function Test To begin, the public function test applies when a private entity performs a function that has traditionally and exclusively been the role of the state. Under this test, if a private entity assumes a role historically reserved for the government, such as conducting elections or managing a town, its actions may be considered state actions and thus subject to constitutional scrutiny. The key question is whether the function has been one that only the government has traditionally performed; if so, the private entity may be held to the same constitutional standards as the state. The public function test was developed under unique circumstances in Marsh v. Alabama in 1946. The U.S. Supreme Court considered whether a state could constitutionally impose criminal penalties on a person distributing religious literature in a company- owned town against the wishes of the town’s management. The private town, owned by Gulf Shipbuilding Corp., operated like any typical American town, with public streets, a business district and a post office. A Jehovah’s Witness was arrested for distributing religious literature on the town’s sidewalk after being denied a permit. The Supreme Court ruled that, despite its private ownership, the company town could not infringe on First Amendment freedoms because it served the public in the same manner as any other municipality.5 In contrast, in Jackson v. Metropolitan Edison Company, the U.S. Supreme Court held that the termination of electric service by a privately owned utility company, despite being labeled “public,” did not constitute state action under the 14th Amendment. The case involved a resident who had her electricity service terminated by the company for nonpayment, which it was certified by the state to do. She filed a lawsuit claiming the utility’s actions violated her due process rights under the 14th Amendment, arguing that the company’s actions were effectively state actions due to its regulated status, public service function and monopoly power. The Supreme Court disagreed, ruling that extensive regulation and the provision of an essential public service did not convert the utility’s actions into state actions.6 The bar for applying the public function test is notably high, as the function in question must not only be one traditionally performed by the government but also one that has been carried out exclusively by the government, without private involvement.
APRIL 2025 | 17 THE OKLAHOMA BAR JOURNAL 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. The bar for applying the public function test is notably high, as the function in question must not only be one traditionally performed by the government but also one that has been carried out exclusively by the government, without private involvement. The test also contains an inherent contradiction: If an activity is truly an exclusively public function – meaning only the state has traditionally performed it – then it would be unusual for a private entity to undertake it. The very fact that a private entity is performing the function suggests it may no longer be exclusively public, if it ever was. This raises the question of why a private entity is involved in what is supposed to be an exclusive governmental role. In any event, the exclusivity criterion significantly limits the range of activities that can meet the test. The Nexus or Joint Action Test The next test – the nexus or joint action test – is more direct in its approach. It evaluates whether the relationship between the state and the private party’s conduct is sufficiently close to warrant attributing the private party’s actions to the state. The U.S. Supreme Court’s Burton v. Wilmington Parking Authority decision provides an instructive illustration. In this case, the U.S. Supreme Court ruled that the discriminatory actions of a privately owned restaurant, which refused service to a Black customer, could be deemed state action due to the close relationship between the restaurant and the Wilmington Parking Authority, a state agency. The Wilmington Parking Authority had leased public property to the restaurant and provided various forms of support, establishing a connection where the restaurant’s operations were closely interconnected with the state’s interests. But the court cautioned that while many relationships might appear to fall within the scope of the 14th Amendment, differences in circumstances result in differing outcomes, perhaps limiting the ruling’s application specifically to lessees of public property.7 Another application of this test is when a private party uses state legal procedures to deprive another party of property or when the private party is a “willful participant in joint activity with the State or its agents.”8 This was first exemplified in Lugar v. Edmondson Oil Co., in which the U.S. Supreme Court held that a private creditor that secured a prejudgment attachment of the petitioner’s property through state procedures was a state actor. The petitioner argued that this action deprived him of his property without due process of law. The court determined that because Edmondson Oil had invoked state procedures and engaged state officials in attaching the property, its actions were attributable to the state. The court reasoned that when private parties use state procedures to deprive individuals of their property, those actions create a sufficient nexus to be considered state action.9 By examining the relationship between the state and the private entity, the nexus or joint action test ensures that actions involving significant state involvement or cooperation do not escape the protections of constitutional rights. This test demonstrates the underlying principle that the state cannot insulate itself from constitutional obligations by merely acting through private parties. The State Compulsion Test The state compulsion test is another test used to determine when a private party’s actions can be attributed to the state. This test applies when the state has either exercised coercive power or provided significant encouragement, effectively making the private party’s conduct an extension of state action. The case of Blum v. Yaretsky illustrates that in applying the state compulsion test, mere state regulation – like with the public function test – is insufficient to attribute private actions to the state. Private decisions, even in a heavily regulated context, must be directly influenced or compelled by the state to be considered state actions. In Blum, the court held that the decisions of privately owned nursing homes to discharge or transfer Medicaid patients do not constitute state action under the 14th Amendment. The issue arose from a class action lawsuit by Medicaid patients who challenged the lack of procedural safeguards in such decisions, arguing that these actions were attributable to the state due to extensive regulation and state funding. The court reasoned that while the nursing homes were subject to state regulation and received state funding, the decisions to discharge or transfer patients were ultimately made by private parties based on medical judgments and, thus, could not be attributed to the state.10 On the other hand, in Peterson v. City of Greenville, the U.S. Supreme Court held that a restaurant’s refusal to serve Black patrons was
THE OKLAHOMA BAR JOURNAL 18 | APRIL 2025 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. not merely a private decision but was coerced by the state due to the local ordinance mandating segregation.11 Likewise, in Shelley v. Kraemer, the U.S. Supreme Court held that the enforcement of racially restrictive covenants by state courts constituted significant state encouragement, thereby transforming private discriminatory agreements into state action. Although the covenants themselves were private, the court found that state judicial enforcement provided the necessary state involvement to trigger the protections of the 14th Amendment.12 While unbridled coercion is often readily apparent, determining the line between proper and improper government encouragement under the state compulsion test is challenging because government influence can take many forms, such as conditional funding, legal mandates or informal pressures. That is, an attempt to “convince” is different from an attempt to “coerce.” Each instance requires a case-by-case analysis of the public-private relationship, making it difficult to establish a clear, consistent standard for when vigorous government encouragement crosses over into impermissible compulsion. This difficulty recently took center stage in lawsuits arguing that social media platforms are subject to the First Amendment due to alleged government coercion in restricting or removing content. Although the social media companies had policies to remove misinformation, government officials were also in constant contact with these companies to remove certain posts deemed harmful or misleading, including vaccine- and coronavirus-related content. Censorship based on the latter would implicate the First Amendment but not so with the former. Under the facts of the case, it could be argued that it was not the internal policies of a private company that were the motivating factor in removing posts but the government’s encouragement.13 The Entwinement Test Finally, the entwinement test considers whether the state’s involvement in the private entity’s operations is so pervasive that the entity’s conduct can be treated as that of the state. It is within this catch-all test that factors like governance, regulation and oversight are considered. This test is best exemplified by Brentwood Academy v. Tennessee Secondary School Athletic Association, wherein the U.S. Supreme Court determined that a statewide athletic association was a state actor, due to the pervasive entwinement of state officials in its operations – including governance, regulation and oversight – making its actions subject to constitutional scrutiny. The issue was whether certain athlete-recruiting rules violated free speech protections. The court found that the association’s regulatory activities could be fairly attributed to the state due to a confluence of factors: The majority of its members were public schools, its leadership was composed of public officials, and it operated with significant state involvement. These elements combined to create a relationship where the TSSAA’s actions were sufficiently entwined with state interests, making its conduct subject to constitutional scrutiny as state action.14 This case shows that the entwinement test serves as a loose framework for stateattributable conduct. Consequently, the test is challenging to apply consistently, due to its reliance on vague, open-ended, multifactor analysis. Without clear criteria, courts must weigh varying factors like state involvement and integration, leading to line-drawing problems and potentially inconsistent outcomes across similar cases. THE STATE ACTOR DOCTRINE, PUBLIC CHARTER SCHOOLS AND THE FREE EXERCISE TRILOGY Given the rough terrain of the state actor doctrine, charter schools inevitably present challenging constitutional issues, especially in light of the U.S. Supreme Court’s recent broadening of free exercise considerations in the education realm. Charter schools occupy a unique position within the public education system, blending elements of both the public and private sectors. Although they are managed by private entities, which grants them certain autonomies typically not afforded to traditional public schools, charter schools receive public funding and operate under state regulation.15 This hybrid nature has led to complex legal questions regarding the application of the state actor doctrine to charter schools. In Caviness v. Horizon Community Learning Center, Inc., for example, the 9th Circuit Court of Appeals held that Horizon, a private nonprofit corporation running a charter school in Arizona, was not a state actor under 42 U.S.C. §1983 in its employment-related actions against a former teacher. The teacher argued that, as a charter school providing public education, it should be considered
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