An upcoming Supreme Court decision about school vouchers could have a broader impact in the decades ahead, creating an opening for Christian, Jewish, or other religious charter schools.
In the coming months, legal observers expect the U.S. Supreme Court to reject a Maine rule barring religious private schools from participating in its voucher program. That decision would definitively establish that states offering money to private schools have to allow religious schools into those programs, too.
Some legal scholars say that raises a new question. If a state can’t keep a private religious school out of its voucher program, can it stop a religious school from participating in its charter school program?
“Charter schools are the next frontier,” Preston Green, an education law professor at the University of Connecticut. Compared to school vouchers, “this could actually be more of a win for religious entities if they can get it.”
The idea has the potential to redefine charter schools and open up a major funding source for religious schools, which have lost students over the last few decades. But the concept faces a long legal road, a host of practical questions, and opposition from major charter school groups.
“The bottom line is: Charter schools, as public schools, can never be religious institutions,” said Nina Rees, president of the National Alliance for Public Charter Schools. “And anyone who says differently is flat-out wrong.”
For two decades, the legal ground has been shifting to make religious charter schools possible
The Supreme Court has grown increasingly sympathetic to the idea of using public funds for religious education.
“That shift in a two decade period really is an astonishing transformation,” said Justin Driver, a Yale law professor who wrote a book about education law.
The case now before the Supreme Court involves a Maine program, dating back to the 19th century, that pays for students in rural areas without a nearby public high school to attend another school of their choice. In 1980, the state barred religious schools from participating, citing concerns about the separation of church and state.
In 2002, though, a closely divided Supreme Court said it was OK for states like Maine to issue vouchers that parents could use at religious schools.
Eventually, the court went further. In successive cases in 2017 and 2020, the justices said that states could not exclude religious schools from a generally available program. Doing so, they concluded, amounted to religious discrimination.
These rulings haven’t affected many states yet. But one justice has hinted that the decisions could have broader implications down the line. In his dissent in the 2020 case, Justice Stephen Breyer asked, “What about charter schools?”
Garnett, the Notre Dame law professor, has one potential answer.
It’s well established that the government cannot run a religious school, but a private entity can, she said in a recent report for the Manhattan Institute, a conservative think tank. Despite being defined as “public” in state laws, Garnett continues, charter schools are not run by the government; they are run by private, unelected boards, typically organized as nonprofits.
That means, she says, charter schools can be religious, and state laws prohibiting religious charter schools — in place in every state where charters exist — are vulnerable.
(Some states already allow religious institutions to run secular charter schools. Garnett’s argument is farther-reaching: that a charter school where religion is taught as the truth should be allowed.)
Other legal scholars have made similar arguments.
“At least based on the court’s reasoning, it would be difficult to exclude religious institutions that would want to have explicitly religious charter schools,” Joshua Dunn, a University of Colorado Colorado Springs political science professor, said in a recent podcast.
Helping their case: despite the “public” label, the legal system remains unsettled on exactly how public charter schools are. For instance, a federal court recently ruled that a North Carolina charter school is not a “state actor,” although the case is still being appealed.
If religious charter schools clear legal obstacles, there are also practical and political reasons that they might be appealing to school leaders.
Charter schools are typically more generously funded than voucher programs, and are allowed in many more states. At the same time, many private religious schools, particularly Catholic schools, have been losing students for decades. For religious education providers that might otherwise face closure, a charter school structure could make sense.
“The situation, for many religious schools, is a matter of life and death,” wrote Garnett.
The politics of school choice are also changing in a way that might benefit the idea of religious charter schools. Some school choice advocates on the right are eager to embrace culture war issues — opposition to teaching “critical race theory” and about LGBTQ people — to expand appeal in red states. Religious charter schools could be one way to do that.
“It’s now homeschooling, faith, values, and anger at the public-school establishment that dominate talk of school choice,” Rick Hess of the American Enterprise Institute wrote in a piece urging charter advocates to consider religious charters.
There have been early signs of interest. Under Education Secretary Betsy DeVos, the Trump administration’s education department said in 2020 it would allow religious organizations to apply for a federal charter school grant program, although the administration didn’t go so far to say that teaching religion was allowed.
Religious charter schools are no sure thing
But religious charter schools are far from a foregone conclusion.
Perhaps the biggest challenge is the fact that in America, public schools can’t be religious‚ and charter schools are still defined in state statute as public. They also act as public in some key ways. Charter schools have to take state tests, can’t discriminate in admissions, and often are subject to some form of public records laws.
“You have to make the argument that these schools are actually private, not public, looking at how they are operated,” said Green.
Charter school groups have argued that the schools are indeed public for legal purposes and that the recent Supreme Court cases don’t apply to charter schools.
“All charter schools are public schools,” said Rees of the National Alliance for Public Charter Schools. “Charter schools have never been able to, and cannot now, endorse a specific religion.”
Religious charter schools would also open up other legal issues. Could such schools admit students based on religious affiliation? Could they bar students or teachers based on sexual orientation and gender identity?
A ruling requiring states to approve religious charter schools also would be much more far-reaching than the recent cases involving private schools. Even a conservative court might be reluctant to sweep aside dozens of states’ charter school laws that ban religious association.
“A charter school would be a much harder case for the court,” acknowledged Garnett.
Then there are the political and practical barriers. Even if legally allowed, charter leaders may reject the idea. Legislators, especially in blue states, might try to put up other legal barriers or limit all charters.
“There would be a lot of pushback amongst a lot of folks in the charter space around this idea,” Karega Raucsch, president of the National Association of Charter School Authorizers, said at an event about religious charters.
Finally, it’s not even clear how many religious school operators would want to start a charter school, since they come with a slew of additional regulations. Historically, private schools leaders have blanched at any limits put on their admissions rules in particular.
“Some religious providers would undoubtedly want to become charter schools,” said Garnett. “Many would not and they would go it alone.”
This article was originally posted on Supreme Court case could open door to religious charter schools