APRIL 2025 | 19 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. a state actor because public education is typically a state function. While the court acknowledged that education is a public function, it noted the relevant inquiry is not simply whether the entity performs a public function but whether the function in question has been “traditionally and exclusively the prerogative of the state.”16 The Caviness court relied on the U.S. Supreme Court’s decision in Rendell-Baker v. Kohn, where a private school providing special education was not deemed a state actor, even though it served a public function.17 The 9th Circuit applied the same reasoning, concluding that while Horizon provided educational services, this did not make its actions automatically attributable to the state. The court noted that education can be provided by both public and private entities, and the fact that Horizon operated as a charter school under state law did not mean that all its actions, particularly employment decisions, were state actions.18 On the other hand, the 4th Circuit found that a public charter school was a state actor – albeit regarding different conduct under different circumstances. In Peltier v. Charter Day School, the 4th Circuit held that a public charter school in North Carolina was a state actor for purposes of the equal protection clause. The court determined that despite being managed by a private entity, the charter school operated as a public school under North Carolina law and was, therefore, subject to constitutional constraints. This status made the charter school accountable for its actions under the 14th Amendment, including its sexbased dress code requiring female students to wear skirts.19 The Peltier court distinguished this situation from Rendell-Baker v. Kohn, a case on which Caviness relied. In Rendell-Baker, the U.S. Supreme Court held that a private school for maladjusted high school students, providing education to certain students under contract with the state, did not act under color of state law when it discharged certain employees. Despite the school’s heavy reliance on public funding and extensive regulation, the court determined the school’s personnel decisions were not attributable to the state, as they were not influenced by state authority or policy. The Rendell-Baker court held that the receipt of public funds and the performance of a public function did not make the school’s actions state actions. The school was not dominated by the state, and there was no “symbiotic relationship” like in Burton between the school and the state, reasoning that “[a]cts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”20 Meanwhile, starting in 2017, the U.S. Supreme Court significantly expanded protections against religious discrimination (particularly private religious schools) under the free exercise clause in three landmark cases: Trinity Lutheran Church of Columbia, Inc. v. Comer,21 Espinoza v. Montana Department of Revenue22 and Carson v. Makin.23 These cases collectively established that when a state offers a public benefit, it cannot exclude religious entities solely because of their religious nature. In each case, the court struck down state policies that denied religious organizations or individuals access to generally available public benefits, emphasizing that such exclusions violated the free exercise clause by discriminating against religion. For our purposes, it’s important to recognize that in each of these cases – Trinity Lutheran, Espinoza and Makin – the U.S. Supreme Court ruled that state constitutional or statutory provisions similar to those in Oklahoma were unconstitutional as applied to the specific programs at issue.
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