There’s an old adage in the law that’s been stated in various ways and attributed to different people but reflects a deep truth of legal strategy: If you have the law, hammer the law. If you have the facts, hammer the facts. If you have neither the law nor the facts, hammer the table.
Anyone listening to the U.S. Supreme Court oral argument last week in Oklahoma Statewide Charter School Board v. Drummond might change the last sentence: “If you have neither the law nor the facts, fearmonger.” At least that was the tack of Oklahoma Attorney General Gentner Drummond.
The case presents a religious-liberty issue involving Oklahoma’s program inviting private organizations to apply to operate charter schools. Fueled by private ingenuity, those schools specialize in diverse subjects such as Native American culture, environmental stewardship, foreign-language immersion, performing arts, and much more. But state law categorically bans religious groups and programs alone, deeming religion to be the wrong kind of diversity. As Justice Kavanaugh said at oral argument, that’s “rank discrimination against religion.”
That discrimination violates the free exercise clause of the First Amendment. Indeed, the Supreme Court has said three times in the last eight years that when a state creates a public program and invites private actors, it can’t exclude people or groups because they’re religious. Yet that’s precisely what Drummond said Oklahoma’s charter-school program should do, so he sued to exclude a Catholic organization — St. Isidore of Seville — from the program.
With constitutional law firmly against him, Drummond insisted that St. Isidore is not a private group with constitutional rights but a part of the government. Yet the Supreme Court has been clear that an organization isn’t part of the government unless it’s state-controlled. Oklahoma does not control St. Isidore.
The Supreme Court has found state control only when an organization’s board of directors is selected by the government. That makes sense: the government controls an organization if it chooses the people who run it. But none of St. Isidore’s board members are chosen by the government.
Drummond also argued that St. Isidore is government-controlled because it is subject to general state oversight and regulation, claiming that this is drastically different from private schools. But he ignored that private schools wanting to receive public funds through the state’s tax-credit program must be accredited, and that accreditation process requires substantial oversight. Accepting his argument about control therefore risks transforming many private schools in Oklahoma into government actors too.
Pivoting, Drummond relied on an Oklahoma law labeling charter schools “public schools.” But simply labeling something “public” doesn’t transform it into the government. In fact, the Supreme Court has found that a public utility, public-access channel, and public defender are all nongovernmental.
Crucially, that a school in Oklahoma is labeled “public” means only that the school is publicly funded and free. Nothing more. The Supreme Court in Rendell-Baker v. Kohn already concluded that a publicly funded and free school is not engaged in government action. So the “public” label doesn’t help the attorney general.
Without a constitutional leg to stand on, Drummond resorted to speculation about the effects of a ruling allowing religious charter schools. At oral argument, for example, he said that children with disabilities at charter schools might not be covered by the Individuals with Disabilities Education Act. That’s flat wrong. The IDEA says that services will be available to students whether they attend a government-run or privately operated school.
Drummond also insisted that a ruling against him will upend all other states’ charter-school laws. Not so. No state will be required to stop its charter-school program. For any other state that sets up its laws as Oklahoma does, a ruling in St. Isidore’s favor would mean only that the state would need to treat religious groups equally. This would expand — not shrink — educational diversity.
The Oklahoma attorney general’s argument about other states directly contradicts what he previously told the Supreme Court. In December, Drummond wrote that “each state has [its] own unique constitutional and statutory regime for regulating charter schools,” so what the high court concludes about Oklahoma’s laws won’t dictate the result in other states. Because that message doesn’t suit his current apocalyptic theme, he changed his tune.
In the end, fearmongering might be a better strategy than pounding the table. At least it’s more in keeping with courtroom decorum. But it shouldn’t get Drummond anywhere. The law and facts point in one direction — to the Supreme Court’s ending religious discrimination in Oklahoma and allowing St. Isidore to open.