Are charter schools "state actors"?

The Oklahoma Statewide Virtual Charter School Board has authorized an explicitly Roman Catholic virtual charter school, St. Isidore of Seville Catholic Virtual School, to begin operation in the 2024-2025 school year. Attorney General Gentner Drummond, a pretend-conservative and Biden for President donor who won the GOP nomination with the help of dark-money ads, is suing to block the school, working against the interests of parents who might wish to avail their children of such an education. The case is before the Oklahoma Supreme Court. The Alliance Defending Freedom is representing St. Isidore. ADF's argument has some interesting implications (emphasis added):

Phil Sechler, senior counsel at Alliance Defending Freedom (ADF), represented St. Isidore before the Oklahoma Supreme Court and argued St. Isidore does not violate the First Amendment.

He noted the group is privately owned and operated and said receiving a charter contract did not make the group a state actor.

Sechler cited Rendell-Baker v. Kohn, a U.S. Supreme Court decision from 1982, which found a private school wasn't a state actor even if "substantially funded and regulated by the state."

According to state law, public schools are defined as "all free schools supported by public taxation" and aren't inherently state actors, Sechler continued.

Rather than being an "establishment of religion," St. Isidore is merely exercising its right to religious freedom by participating in the state's charter school program - a benefit which many secular groups also receive.

Charter schools are classified as public schools by the SDE and are subject to many of the same state laws that apply to traditional public schools. I've suspected, but haven't dug into the matter, that many of these provisions were insisted upon by legislators who really didn't want to see charter schools succeed as an alternative to traditional public schools.

It seems to me (and I am speaking only as an individual, not on behalf of any board or organization of which I am a member) that a charter school's function is more akin to a company that has a contract to provide services to or on behalf of state government. We wouldn't think of Flintco or Cox Communications as state actors because they build state facilities or provide internet service to the state.

The Oklahoma Department of Human Services refugee assistance program is directly relevant to the virtual charter school question, with the state working through private Christian non-profits to provide state-funded services:

The program provides both cash and medical assistance.

Cash is provided through Oklahoma Catholic Charities.
Medical Assistance is provide through the Soonercare (Medicaid) Program.

The Oklahoma Department of Human Services (DHS) contracts with Catholic Charities of Oklahoma City and the Young Women's Christian Association (YWCA) of Tulsa to provide assistance to newly arrived refugees. This appendix gives information on what services are provided by whom in different parts of the state.

No one would expect Catholic Charities or the YWCA to comply with the Open Meetings and Open Records acts, nor think of them as state actors, nor would we expect them to deny the Christian aspect of their work which is right there in the name.

It's worth remembering that the First Amendment to the Constitution prohibited Congress from making any law "respecting an establishment of religion or prohibiting the free exercise thereof." That stops the Federal Government from creating an official national religion along the lines of the Church of England or the Church of Scotland, but it did not prevent the states from funding religion (Massachusetts did not disestablish its state church until 1833) much less require state hostility to religion.

This case will be interesting to watch.

RELATED: Daniel Dreisbach, a professor at American University in Washington, D.C., in the Department of Justice, Law & Criminology, is a specialist in the interaction of state and federal government with religion during the Founding Era. Prof. Dreisbach's Twitter/X feed features quotes from and links to original documents on the topic. For example, he presents a proclamation from 1792, from Josiah Bartlett, President of New Hampshire, calling for a day of humiliation, fasting, and prayer, that "Ministers and People of all denominations... to confess before God their aggravated transgressions, and to implore his pardon and forgiveness through the merits and mediation of Jesus Christ." Dreisbach is author of Reading the Bible with the Founding Fathers (Oxford, 2017) and Thomas Jefferson and the Wall of Separation between Church and State (NYU Press, 2002). Dreisbach has written for Law and Liberty, The Public Discourse, the C. S. Lewis Institute, Mosaic, and the Federalist. C-SPAN has video of several speeches and forums where Prof. Dreisbach discusses religion and the American Founding.