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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