Could Religious Charter Schools Upend American Education?

This story was originally published by Chalkbeat. Sign up for their newsletters at ckbe.at/newsletters”.

For decades the phrase “private religious charter school” seemed like an oxymoron. Charter schools are deemed public by state law, and must be secular just like any other public school.  

Now, there’s a burgeoning effort to change that. An Oklahoma state board just approved an application by the Archdiocese of Oklahoma City to run what would be the country’s first religious charter school. The move is a direct challenge to existing charter laws, which critics say discriminate against churches and other religious entities. 

The prospect of religious charter schools threatens to upend American education, far beyond Oklahoma. If religious charter schools become a reality, they could rejuvenate religious education, particularly Catholic schools, which have been losing students for many decades. Such schools could continue the successful conservative campaign to allow more public funding to go to religious education. They could lead to fewer students, and thus less funding, for public schools. Charters of all types could be deemed private schools for legal purposes, reducing anti-discrimination protections for students and teachers. 

This is a startling possibility. Charter schools have long enjoyed bipartisan support because they were seen as a compromise to private school vouchers. Advocates promoted charters as innovative options within the public sector. Leading national charter organizations maintain this view and oppose religious charter schools. But it’s not clear they will be able to keep a hold on their own movement.

The recent push for private religious charter schools is a sign of the shifting times. The U.S. Supreme Court’s conservative majority has knocked down legal barriers to public money going to religious education. The bipartisan consensus around charter schools has weakened. Conservative education advocates are trying to limit certain instruction on race and gender, including by funding alternatives to public schools. 

As yet, it’s unclear if a religious charter school will ever open—they still have to clear a dense thicket of legal issues. The question could well reach the Supreme Court.

Here’s what to expect and how we got to this point:

Charter schools were first created in Minnesota in 1991, and charter laws now exist in 45 states plus the District of Columbia. All of the laws, including Oklahoma’s, prohibit charter schools from offering religious instruction. (Some states allow religious organizations to run schools—but they have to remain secular in their operation.) So at present openly religious charter schools do not exist.

But for many years, legal scholars have raised the possibility of such schools, including a 2001 law review article titled: “Charter schools and religious institutions: A match made in heaven?” At first, this was just an academic discussion. Litigation focused on private schools.

In 2002, a divided Supreme Court ruled that public money may go to private religious schools through voucher programs. The majority emphasized that such funding was directed by parents, not by the government. More recently the court has gone further. Not only may religious schools get money, they must receive funding if other secular private schools are eligible, the court concluded in a string of cases culminating in a 2022 ruling. “The State pays tuition for certain students at private schools—so long as the schools are not religious,” wrote Chief Justice John Roberts in the latest decision, Carson v. Makin. “That is discrimination against religion.” 

These cases have not had far-reaching consequences because most states with voucher programs already allowed religious schools to participate. The rulings also did not speak to charter schools directly. But in one case Justice Stephen Breyer raised the issue in dissent. “What about charter schools?” he wrote, before pointing out that the court had no clear answer. Indeed some experts told Chalkbeat in 2022 that this would be the coming legal dispute. “Charter schools are the next frontier,” said Preston Green, a University of Connecticut professor.

That’s exactly what has happened. Some choice school advocates pointed out that the logic of these rulings might apply to charters. If a state cannot bar religious private schools from public support, why can it bar religious charter schools, they asked. 

That was the case made by Nicole Stelle Garnett, a Notre Dame law professor, in an influential 2020 report for the Manhattan Institute, a conservative think tank. Charter schools, she argued, “are effectively private schools and can be religious without running afoul” of the Constitution. In fact, the logic of the court’s decision suggested that “current laws prohibiting religious charter schools likely violate” the First Amendment’s guarantee of free religious exercise, Garnett concluded.

Earlier this year, the Archdiocese of Oklahoma proposed a virtual charter school that would teach religious doctrine, just like a private Catholic school would. To craft the application, the church worked with Notre Dame law school’s Religious Liberty Initiative, including Garnett herself. “What state has the most ripe opportunity for religious charter schools? The answer for Notre Dame is Oklahoma,” Brett Farley, executive director of the Catholic Conference of Oklahoma, told the Tulsa World in February. 

The idea was bolstered after the state’s former attorney general issued an opinion that Oklahoma’s ban on religious charters was likely unconstitutional. Highlighting the legal ambiguity, though, a new attorney general promptly withdrew that opinion.

In April, the proposed school was unanimously rejected by Oklahoma’s charter board, which cited legal uncertainty and a variety of other issues in the application. But the board narrowly approved it in June after the school submitted a revised application. Board members who supported the school said they believed that Oklahoma’s bar on religious charter schools is unconstitutional.

This sets up an inevitable legal fight since the decision clashes with state law. Americans United for Separation of Church and State said immediately that it was planning legal action. “State and federal law are clear: Charter schools are public schools that must be secular and open to all students,” Rachel Laser, the group’s president said in a statement. “No public-school family should fear that their child will be required by charter schools to take theology classes or be expelled for failing to conform to religious doctrines.”

Since charter schools were formed, advocates have also insisted that they are public. Some groups, like the National Alliance for Public Charter Schools, emphasize this in their names. State and federal law describes charter schools as public. Charter schools also operate in many ways like other public schools—they are funded by public dollars, they must be open to all students, they administer state exams, and they’re often required to comply with public records law. “There’s 101 reasons why they are state actors and none why they are not,” Derek Black, a law professor at the University of South Carolina, previously told Chalkbeat. 

But charter schools have always been a sort of public–private hybrid. After all, they are typically governed by private, nonprofit boards, which are not elected. (To form a school, these boards are awarded a performance contract or “charter” by an authorizer, which itself is usually a public body.) This ambiguity has put charter schools in a legal gray area. Are they public—“state actors,” in legal jargon—or private entities? Different courts have reached different conclusions, based on a complex legal doctrine.

If charter schools are public actors, then there is little question that they may not be religious. The First Amendment bars governmental establishment of religion, and the Supreme Court has said that public schools cannot conduct sponsored prayers.

But if charter schools are private, as advocates like Garnett argue, then there is a stronger case that they can be religious. Private schools are not limited by the First Amendment, which only applies to the government. Moreover the legal precedent in Carson v. Makin—which says that private choice programs must be open to religious and secular schools alike—would seem to apply to charters. 

The public–private question is “heart of the matter” in the religious charter debate, as the Oklahoma board’s legal counsel put it.

The Supreme Court is considering taking a case on whether charter schools are public or private actors. The suit is about a North Carolina charter school that has a dress code prohibiting girls from wearing pants or shorts. They must instead wear skirts, jumpers, or skorts. This, the school’s founder said, was designed to promote chivalry, including the notion that a woman is a “fragile vessel that men are supposed to take care of and honor.”

With the support of the American Civil Liberties Union, parents of some affected students sued. They argued that the dress code is a form of gender discrimination and thus violates the equal protection clause of the Constitution. Lawyers for the charter school responded that it is a private entity and therefore not bound by the Constitution. (The school also argued that its uniform policy did not violate the Constitution regardless.)

In 2022, a divided federal appeals court ruled for the parents. Charter schools, the majority said, are state actors, and the dress code in this case was discriminatory. A partisan divide emerged on this question. The nine judges in the majority were all initially appointed by Democratic presidents; the six dissenters were all appointed by Republicans.

The school then appealed to the U.S. Supreme Court. The court asked the Biden administration to weigh in before deciding whether to hear the case. Since most appeals to the court are quickly dismissed, this indicates that the justices had some interest in the case. Lawyers for the Biden administration argued that the appeals court was right in ruling that charter schools are public, and urged the Supreme Court not to hear the case.

If the Supreme Court takes the case and deems charter schools private, then the door for religious charters would open wider, though it would not settle the legal question. An additional complication is that entities may be deemed “state actors” for some purposes but not others. 

Two major charter school associations oppose the possibility of religious charter schools and say charters should be considered public for legal purposes. They say that religious instruction is not consistent with the charter model. They also likely fear a political backlash if charters are considered private—a charge often leveled by critics.

The National Alliance for Public Charter Schools condemned Oklahoma’s approval of a religious charter school. “The Archdiocese of Oklahoma City is trying to make charter schools into something they are not,” Nina Rees, president and CEO of the National Alliance for Public Charter Schools, said in a statement.

Similarly, the National Association of Charter School Authorizers, which represents entities that approve charter schools, says that charter schools are public and criticized Oklahoma’s decision. “Charter school students deserve and enjoy the same civil and constitutional rights protections as any peer attending a traditional district school,” the group said in a statement about the North Carolina case.

Even some leaders of religious schools are wary of the concept of religious charter schools. Kathleen Porter-Magee, who runs a network of private Catholic schools, says that moving to the charter model could divide the school choice coalition and entangle religious schools with excessive bureaucracy. “In order for religious schools to access government funding, we would be knowingly giving up autonomy in exchange for what would likely be excessive government bureaucracy and regulation,” she wrote.

However, school choice advocates at the Manhattan Institute have been advancing the case for religious charter schools. There has also been a string of opinion pieces by conservative writers urging the Supreme Court to rule that charter schools are private and therefore not bound by the U.S. Constitution. For instance, columnist George Will suggested that such a ruling would protect charters to make “pedagogical and cultural choices without being vulnerable to suffocating litigation.” Ten Republican attorneys general weighed in for the school in a brief to the Supreme Court.

Similarly, Great Hearts Academies, which runs dozens of charter schools in Arizona and Texas that focus on “classical education,” filed a brief arguing that charter schools are private actors. Ruling otherwise, the school contended, would mean “innovation will be stifled.” 

The possibility of religious charter schools raises myriad questions. For instance, how would such schools deal with charter schools’ open access requirements? Would they have to admit students who are gay if that clashes with the school’s religious doctrine? What about students from other religions? 

The Oklahoma archdiocese that applied for a charter would not say whether the school would admit gay or transgender students. In its charter application, church officials indicated that they would seek “religious exemptions” from state and federal law “with priority given to the Catholic Church’s understanding of itself and its rights and obligations pursuant to the Code of Canon Law and the Catechism of the Catholic Church.” 

The school’s proposed employee handbook notes: “All employees are expected to adhere to and support the positions and beliefs of the Roman Catholic Church in the performance of their duties.” There have been a number of reported instances of private Catholic schools firing staff members for marrying a same-sex partner.

If religious charter schools become a reality, courts would likely have to determine how existing charter school statutes apply to religious schools, which typically operate with far less regulation than charters.

Oklahoma’s approved religious charter school had the support of many state officials, including the governor, state schools superintendent, and members of the charter board. But religious charters would likely not get such a welcome reception in more liberal states with large charter sectors, like New York or California.

That may not matter. Advocates for the concept say state officials should not be allowed to deny charter schools just because they are religious. “If they can be religious, states with charter schools must permit religious charter schools,” argues Garnett, the Notre Dame law professor. If a religious entity applies for a school in such a state and is denied, the organization could bring a lawsuit making that argument.

If that argument carries the day in court, that would mean that every state with charter schools would have to consider religious charter schools on an even playing field as all other applicants.

If they are to exist, religious charter schools will almost certainly have to go through the courts. There will very likely be a case in Oklahoma challenging the state’s approved religious charter school. If the Supreme Court takes up the North Carolina case, that will shed light on the possibility of religious charters. More cases could follow if religious entities elsewhere apply for a charter or if state lawmakers lift bans on religious charter schools.

This could take years to play out, particularly since there are many different legal questions in play. Ultimately, the Supreme Court itself may have to tackle the question of religious charter schools.