At the April 30 Supreme Court oral argument in Oklahoma Statewide Charter School Board v. Drummond — where the issue is whether Oklahoma may deny St. Isidore of Seville Catholic Virtual School the opportunity to open a religious charter school — critical questions drilled into whether a government charter merely enables private participation in a public program or instead represents government creation and control of the education provider. If government plays only a mediating role for private entities, it may not exclude religious providers under the free exercise doctrine. But if government effectively runs the school, the establishment clause requires exclusion of religious education, the same as a traditional public school district.
Most justices grasped how charters provide but another example of private participation in a public program. Greg Garre — counsel for Oklahoma Attorney General Gentner Drummond, who opposes religious charters — argued that St. Isidore is a surrogate of the state, prompting Justice Clarence Thomas to reiterate St. Isidore’s position: “It’s a private entity that is participating in a state program. It was not created by the state program.” Chief Justice John Roberts refuted Garre’s claim that St. Isidore is a “creature of the state,” citing cases like Espinoza, Carson, and Fulton, in which state-created programs improperly excluded religious providers. Justice Brett Kavanaugh challenged Garre to identify a principle that distinguishes charter schools from other public programs. Garre responded only with “schools are different.” Justice Neil Gorsuch asked Solicitor General D. John Sauer to explain how a state might create a charter school a government-run entity, tacitly embracing the view that Oklahoma had not done so. And Justice Alito highlighted the private ingenuity of charters, observing that, yes, the charter school “has to meet certain state requirements, but the focus of the curriculum can be quite different from the public school.”
Justice Sonia Sotomayor, however, invited Garre to provide a deep dive into how Oklahoma’s regulation of charter schools amounts to government control. Garre contended that “extensive oversight of curriculum” exists for charter schools that “doesn’t remotely exist for private schools,” including audit-enforced performance indicators demonstrating curriculum alignment with state academic standards and testing (and even a requirement that schools teach the perils of dangling modifiers).
Curriculum standards are hardly limited to charter school programs, however, and treating them as the equivalent of government control could have far-reaching implications. Many states (including Oklahoma) impose similar baseline standards on private schools, either through general accreditation requirements or as conditions for participating in parent-benefit programs. At argument, Jim Campbell, representing the Oklahoma Statewide Charter School Board (which favors granting the charter to St. Isidore), referenced standards Oklahoma imposes on private schools participating in its school choice programs. Two such programs — the Lindsey Nicole Henry Scholarships for Students with Disabilities and the Oklahoma Equal Opportunity Education Scholarship — require participating private schools to be accredited by the state. To be accredited, schools must meet a range of substantive requirements: 1,080 instructional hours per year; six daily periods of rigorous academic or vocational coursework, including art, music, and physical education; a full-time principal; teachers with degrees that meet Oklahoma certification standards. Accredited schools must also maintain detailed attendance records, report dropouts, and operate a health services plan that offers students access to a nurse. Thus, participating private schools are subject to state-enforced standards comparable to traditional public schools.
As data published by EdChoice demonstrate, curricular standards for private school choice programs exist all over the country.
- In my home state of Indiana, to be eligible for the Choice Scholarship Program, schools must be accredited and administer the statewide assessment program. They must also provide instruction in language arts, second languages, mathematics, social studies and citizenship, sciences, fine arts, health education, and physical fitness. Requirements include teaching students in grades six through twelve about government, voting, and civic responsibility for “five full recitation periods of class discussion” and “within the two weeks preceding a general election,” among other curriculum standards.
- In Ohio, eligibility for the Jon Peterson Special Needs Scholarship Program requires private schools to receive a state charter, which in turn entails demonstration of an educational program that “complies with program standards prescribed by the department,” including courses in language arts, geography, U.S. and Ohio history, government, mathematics, science, health, physical education, music and other fine arts, and first aid and safety.
- In Wisconsin, all school choice voucher programs require new participating schools to be “preaccredited,” which depends on, e.g., “a sequentially progressive curriculum of fundamental instruction in reading, language arts, mathematics, social studies, science, and health.”
- In Massachusetts, every private school — including religious schools — must be approved by the local school committee in the city or town where it operates. That approval hinges on whether the school provides instruction that is “equal in thoroughness and efficiency” to the local public schools, including curriculum, instructional hours, teacher qualifications, educational materials, and testing requirements.
- In New York, all private schools must provide instruction that is “substantially equivalent” to that of public schools in core subjects such as English language arts, math, science, and social studies. The state requires each private school to demonstrate substantial equivalency through one of several approved pathways, including accreditation, standardized assessments, or local school review.
If such curricular standards do not transform private schools into government schools, they surely do not convert charter schools, either.
Curriculum standards do not provide a useful shorthand for government control for additional reasons. Even with supposedly rigorous curricular standards, charter schools look very different from one another and from traditional district schools. Oklahoma has a wide array of charter schools representing different perspectives and pursuing different missions. For example, the Harding Fine Arts Academy offers an arts-integrated curriculum with instruction from some of the finest artists and musicians in Oklahoma City. Another school, Le Monde International School, offers a French and Spanish immersion curriculum that allows students to select either language and improve their academic excellence through bilingualism and the integration of cultural awareness in addition to rigorous instruction. And the Tulsa Classical Academy has looked beyond Oklahoma’s borders to adopt Hillsdale College’s classical curriculum, despite the state’s supposedly specific curriculum demands. These schools integrate their respective arts, language, and culture training with core academic subjects, just as St. Isidore would with its religious lessons. Such heterogeneity belies government control.
Furthermore, curricular standards say nothing about school governance, which is the heart of the government-control question. Government schools are typically organized as corporations for public purposes rather than as private nonprofits. States use different names for such entities — variations on “body corporate and politic,” “local education agency,” “quasi-municipal-corporation,” etc. But all are easily recognizable as government entities, and all are governed by boards that are either publicly elected or appointed by an elected official. Charters carry none of these features, at least in Oklahoma.
Instead, charter schools like St. Isidore are more analogous to licensed entities. While government oversight of a licensee can be extensive, such oversight is not the sort of control that converts a licensee into a state actor. The Court, in Columbia Broadcasting System v. Democratic National Committee (1973), for example, rejected the argument that the FCC became a “partner” or “engaged in a ‘symbiotic relationship’” with a radio station whose advertising policy it was asked to review. As in radioland, government oversight through a written agreement does not convert a school into a state entity.
Maintaining objective distinctions between government entities and government-chartered private entities is critical. If state-entity or state-actor status turns on the specificity of curricular standards, any number of private schools — including religious ones — might turn out to be government schools. And by parity of reasoning, government standards for other regulated entities (such as hospitals) could have the same effect. The curricular-standards test includes no principled limit, so no one could predict when regulatory standards amount to government control.
As Justice Samuel Alito observed at oral argument, the whole point of modern charter school programs is to foster a marketplace of state-supported schools that provide something other than the state-mandated curriculum. Accordingly, even considering minimum state curricular standards, it would make little sense for charters’ creative instructional modules to be deemed state action. Religious education options have succeeded in other school choice programs; including them in the pluralistic offerings of charter schools would provide yet more paths to academic accomplishment.