THE OKLAHOMA BAR JOURNAL 22 | 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. but religious instruction. Religious instruction is inherently outside the domain of the state – that’s the whole point. Recognizing that the question is not whether a private entity is an arm of the state for all purposes but whether an action is fairly attributable to the state may have provided a way to distinguish Caviness. However, such recognition points toward using a different test. The joint action test, on the other hand, straightforwardly examines whether a private entity is a “willful participant in joint activity with the State.”30 And the joint action test, as applied here, may fairly subsume the entwinement test. Under the facts, “joint action” – and, thus, sufficient entwinement – can be established simply by looking at the contract’s terms. The contract establishes St. Isidore as a public charter school – a governmental entity – managed by a private nonprofit. It explicitly includes religious instruction within a state-sponsored, publicly funded framework. By approving, funding and overseeing St. Isidore’s operations – including its religious activities – via contract, the state directly ties the school’s actions to itself, creating a joint endeavor through the contract. Indeed, it is hard to imagine more straightforward evidence of “willful participation in joint activity with the State” than such a contract.31 THE FUTURE OF THE STATE ACTOR DOCTRINE IN OKLAHOMA AND BEYOND Distinguishing public from private actions in public charter schools presents significant legal challenges, hinging on the specific action under the contract with the state. Going forward, understanding how the doctrine applies here will provide valuable guidance for other situations where the government contracts with private entities to achieve public objectives. Thus, the Oklahoma Supreme Court’s ruling raises important questions about how state action is defined and how it will be applied in the future. The complexity of the state actor doctrine and the varying tests for its application mean that future cases could turn on subtle differences in how much control or influence a state exerts over a private entity, which is subject to legislative or administrative adjustment. The court’s reliance on the subjective entwinement and public function tests leaves open the possibility that different facts applying different tests could lead to different outcomes. As charter schools – as well as other public- private cooperative agreements – continue to grow and diversify, the courts will likely see more challenges at the intersection of public funding, private management and the constitution. On Jan. 24, 2025, the U.S. Supreme Court granted the Charter School Board’s petition for writ of certiorari, agreeing to hear the question of whether St. Isidore is a state actor, with Justice Amy Coney Barrett recusing. While that leaves open the possibility of an affirmance under a 4-4 split, this case has the potential to shape the landscape not only of public education and public endeavors more broadly but also to clarify the boundaries of state involvement in religious institutions, making it a case and an area of law to watch closely. ABOUT THE AUTHOR Randall J. Yates is an attorney at Crowe Dunlevy in Tulsa, practicing in appeals, government and tribal affairs and complex commercial litigation. The complexity of the state actor doctrine and the varying tests for its application mean that future cases could turn on subtle differences in how much control or influence a state exerts over a private entity, which is subject to legislative or administrative adjustment.
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