Based on a forthcoming article in the Oklahoma Law Review, Professor Walton’s brief in support of Petitioner St. Isidore of Seville Catholic School addresses the discrete issue of whether a private charter school should be considered a “state actor.”  The Oklahoma Supreme Court recently ruled that a charter school engages in state action when it contracts with the state to provide publicly funded education.

Professor Walton argues that the Oklahoma court misapplied the “function” test because education is not now, nor has it ever been, an exclusive government function.  He also argues that the other test relied upon by the Oklahoma Supreme Court, the “entwinement” test, should be overruled or, at a minimum, significantly narrowed because the school no authority from the state regarding curriculum, personnel policies, or governance. The school should not be considered a state actor because the state has expressly disclaimed all control over the education the school provides.