Recent disappointment at the Supreme Court doesn’t mean the fight against prohibiting religious-sponsored charter schools should go away. Here’s what advocates can still do.
Recent disappointment at the Supreme Court doesn’t mean the fight against prohibiting religious-sponsored charter schools should go away. Here’s what advocates can still do.
O ne of the year’s most closely watched religious liberty cases came to a sudden and anticlimactic end last week when the Supreme Court deadlocked over the question of whether the First Amendment’s free exercise clause requires states to permit religious charter schools. In an equally divide per curiam decision (with Justice Amy Coney Barrett recusing), the Court affirmed without opinion a decision of the Oklahoma Supreme Court that blocked the Oklahoma Charter School Board’s approval of what would have been the nation’s first religious charter school — St. Isidore of Seville Catholic Virtual School.
The deadlock was unfortunate. The decision deprives St. Isidore — a joint effort of the two Catholic dioceses in Oklahoma that sought to use charter-school funding to deliver virtual Catholic education throughout the large, mostly rural state — of its day in court. The decision also deprives school children in Oklahoma of a high-quality, innovative educational option.
The decision, which has no precedential effect, also deprives policymakers of an answer to a critically important question: Does the First Amendment require states to permit religious charter schools? At present, all charter school laws prohibit them. Are these requirements unconstitutional? Are charter schools private actors, in which case states cannot require them to be secular schools? Or are they government actors, in which case they likely must? Despite the overwrought rhetoric that surrounded the case, that question was the only one before the Court. At least four sitting justices apparently agree that St. Isidore’s advocates had the better argument.
What next? The question presented in St. Isidore likely will return to the Supreme Court. If so, one hopes five justices will agree that laws prohibiting religious charter schools violate the free exercise clause. The Court’s recent free exercise cases strongly suggest that they do. While charter schools are nominally designated “public schools,” they are privately operated and freed from government control in order to stimulate innovation and promote educational opportunity. The Court has also made clear that when the government enlists private actors to promote public goals like education, it cannot ask them to check their religious commitments at the door.
In the near to medium term, it’s possible, perhaps probable, to expect lawsuits challenging the constitutionality of a law prohibiting religious charter schools in one or more states. But proactive lawsuits are not required to keep the important question presented in the St. Isidore case alive. Although the question whether the First Amendment requires states to permit religious charter schools likely will end in a court, it doesn’t have to start there.
State officials need not, and should not, wait for the lawsuits to change discriminatory charter school policies. They should end these discriminatory practices now. The next step in the effort to end religious discrimination in charter school programs should be for states to stop discriminating. They should make clear that they believe laws prohibiting religious charter schools are unconstitutional — and stop enforcing them.
Before the Supreme Court, U.S. Solicitor General John Sauer made clear the administration’s view that federal laws prohibiting the funding of religious charter schools are unconstitutional and unenforceable. Conservative state political leaders should follow his lead and act accordingly. Twelve states’ attorneys general filed a brief supporting St. Isidore in the Supreme Court, a move that functionally acknowledges that they share the Trump administration’s view that the First Amendment precludes states from forcing charter schools to be secular schools. These states should now put their money where their mouth is and stop enforcing the discriminatory laws that they have already acknowledged are unconstitutional.
While they are at it, they also should take steps to ensure that other state laws and regulations that unconstitutionally discriminate against religious organizations and conduct in public programs are not enforced. State laws and regulations are riddled with hundreds of instances of such discrimination, as a website recently launched by the Notre Dame’s Education Law Project and Religious Liberty Clinic, the Orthodox Union’s Teach Coalition, and the Epic Coalition has exposed.
How might states go about ending religious discrimination in public programs, including charter school programs? One promising model is an executive order recently issued by Oklahoma Governor Kevin Stitt. It directs all state agencies to cease enforcing state laws and regulations that discriminate against religious organizations or conduct and to conduct comprehensive audits of their programs and contracts to identify hidden religious discrimination and report their findings back to him. I have previously urged the Trump administration do the same for federal programs, where religious discrimination runs rampant.
Former Oklahoma Attorney General John O’Connor provided another model. O’Connor issued an opinion letter in 2022 which concluded that the state’s prohibition on religious charter schools is unconstitutional. State agencies and charter school authorizers might trigger these letters by requesting guidance about whether discriminatory provisions of charter and other state programs run afoul of the First Amendment.
Additionally, charter school authorizers can signal that they will stop automatically rejecting applications for religious charter schools and are open to requests from existing charter schools that would like to begin teaching religion. Charter schools operate as a result of a contract between an authorizer, which could include state agencies, school districts, nonprofit organizations, and public and private colleges and universities, and a school operator, which is typically a private nonprofit corporation. In fact, several states allow religious nonprofits and religious colleges to authorize charter schools, but prohibit them from authorizing religious charter schools. This compounds the free exercise problems with laws mandating that all charter schools be secular.
Finally, state legislators should resolve to purge religious discrimination from state statutes and regulations, including but not limited to laws requiring that charter schools be “nonsectarian.” Eliminating the terms “sectarian” and “nonsectarian” in state laws would go a long way toward accomplishing that goal. Legislators should also make every effort to ensure that religious schools and the students they serve have access to public funding through private-school choice programs as well. The abrupt end to St. Isidore highlights that parental choice activists need to redouble their efforts to continue their otherwise remarkable winning streak. Thirty-five states, the District of Columbia, and Puerto Rico now have at least one private-school choice program. Sixteen states extend eligibility to participate to all students. When Texas’s new ESA program opens next year, over 50 percent of students in the U.S. will be eligible to participate in a program that provides public funding to attend private schools. That is truly remarkable. But it still leaves roughly half of all students without access to parental choice options that include faith-based schools. That needs to change.