Oklahoma is currently considering whether to approve the nation’s first charter school that would “teach religion as the truth of the matter.” On Dec. 1, 2022, former state Attorney General John M. O’Connor issued an opinion declaring that Oklahoma’s ban on “sectarian” charter schools was likely unconstitutional and “should not be enforced.” Based on that premise, St. Isidore of Seville Catholic Virtual School applied to the Oklahoma Statewide Virtual Charter School Board to run a virtual Catholic charter school. St. Isidore, a non-profit entity, intentionally chose not to organize as a true private school because tuition costs would be prohibitive for the poor, rural families it is targeting. On April 11, 2023, the board initially voted to turn down the proposal. The reasons for the decision related to “questions over the school’s governance structure, its plan for special education students, and its ability to prevent commingling of private and public funds, among other logistical concerns.” Backed by prominent law professor and charter school expert Nicole Stelle Garnett, the school seems intent on continuing to fight.
States violate the Constitution if they continue to refuse to approve religious charter schools.
How the board ultimately will decide the application is anyone’s guess, particularly given the conflicting guidance from the Oklahoma Attorney General’s Office. In February 2023, the current state attorney general, Gentner Drummond, withdrew O’Connor’s opinion in a letter addressed to the Statewide Virtual Charter School Board. According to Drummond, “charter schools ‘are public schools established by contract,’” and whether charter schools are state or private actors is an “unsettled” question currently pending before the Supreme Court. Drummond went further, though, arguing that his predecessor’s opinion “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”
Regardless of the outcome in Oklahoma, the religious charter school debate is not going away any time soon. The school choice and parents’ rights movement of the last 30 years continues to put tremendous pressure on states to expand the options available to parents to educate their kids — including charter schools. Moreover, three recent Supreme Court decisions have fundamentally altered the landscape between the state and private religious schools, making religious charter schools a new potential option.
There are at least two common objections to religious charter schools and state funding of religious education in general. The first objection is legal; the second is political. Upon deeper review, both objections fail, and the current Oklahoma attorney general is wrong: States must fund religious charter schools as a matter of law, and states should fund religious charter schools as a matter of policy.
The Legal Objection
First, opponents claim that state authorization of religious charter schools violates the Constitution’s prohibition on establishing religion. This claim is patently false, and, in fact, based on recent Supreme Court case law, states that fund secular charter schools violate the Constitution if they don’t fund religious charter schools. In 2017, the Supreme Court decided Trinity Lutheran Church of Columbia v. Comer, which involved a Missouri Department of Natural Resources policy that barred religious entities from receiving grants to aid in their purchase of “rubber playground surfaces made from recycled tires.” Summarizing its past precedent, the court noted that it has “repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’” The court held that the policy violated the First Amendment because it “require[d] Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program.”
A few years later, in Espinoza v. Montana Department of Revenue, the Supreme Court reaffirmed and expanded Trinity Lutheran. At issue in Espinoza was a Montana Department of Revenue rule that excluded religiously affiliated private schools from participating in a state scholarship program. The Supreme Court held that “Montana’s no-aid provision [impermissibly] bars religious schools from public benefits solely because of the religious character of the schools.” The court noted that while no state is compelled to “subsidize private education,” states that choose to do so “cannot disqualify some private schools solely because they are religious.” The court also emphasized that the establishment clause provided no impediment to this result because the government support of religious schools came through “Montanans independently choosing to spend their scholarships at such schools.”
Is it really so wrong that the state facilitate children receiving an education that parents actually want?
In its latest case, Carson v. Makin, the Supreme Court confronted a Maine program that provided tuition assistance to parents who lived in school districts that didn’t operate a secondary school. Under the program, parents that reside in such districts could select any school — except religious schools — at which to use the tuition assistance. Applying Trinity Lutheran and Espinoza, the court struck down the law that prohibited religious schools from participating in the program. Because Maine chose to offer a public benefit to its citizens, it could not exclude religious schools “solely because of their religious character.”
Based on the principles established in these cases, states that authorize charter schools must fund religious charter schools. First, and contrary to what the critics claim — including the current Oklahoma attorney general — charter schools are private, not government, schools. Charter schools are owned and operated by private entities; they are exempted from many of the educational requirements that traditional public schools face — including those in staffing, curriculum, mission, and budget; and they only receive funding if and when parents choose to enroll their children in the school. In other words, state funding follows the child, just as in the programs at issue in Espinoza and Makin. For all these reasons and more, charter schools are private actors, and, therefore, the principles articulated in Trinity Lutheran, Espinoza, and Makin apply to charter schools.
While states are not obligated to authorize charter schools, once they do so, they “cannot disqualify some [charter] schools solely because they are religious.” But that is exactly what every state does — including Oklahoma. And that “disqualification” puts religious charter schools and parents “to [an unconstitutional] choice: [they] may participate in an otherwise available benefit program or remain a religious institution.” Charter schools have popped up all over the country because state legislatures have chosen to create alternative forms of education — a public benefit — for a myriad of reasons, including improving learning outcomes and providing educational alternatives to parents. To exclude religious charter schools solely because they are religious violates the clear principle that undergirds Trinity Lutheran, Espinoza, and Makin. Accordingly, not only is it not unconstitutional to fund religious charter schools, but states violate the Constitution if they continue to refuse to approve religious charter schools.
The Political Objection
Among other political objections, opponents of religious charter schools claim that these schools are nothing more than state-sponsored indoctrination “in conservative religious and political ideology.” Nothing could be further from the truth. Educational indoctrination — at least the type that is unconstitutional — only occurs when it is forced upon children without parental consent. Contrary to what the critics claim, state-sponsored indoctrination is occurring in traditional public schools — not charter schools. In public schools across the nation, the government is indoctrinating children in gender identity ideology, critical race theory, and other left-wing ideology — and this all without parental choice or consent. Charter schools, on the other hand, cannot indoctrinate anyone because no one is forced to attend charter schools. They are schools of choice; only parents who want their children “indoctrinated in religious ideology” will send their children to these schools.
Is it really so wrong that the state facilitate children receiving an education that parents actually want? Of course not, unless the opposition to religious charter schools isn’t really about religion — but about who controls what children are taught. By authorizing religious charter schools, states will put more power in the hands of parents to decide the best education for their children. And that is a great political outcome.
S. Ernie Walton is an assistant professor at Regent University School of Law in Virginia Beach, Virginia. His latest article, “Religious Charter Schools: The Time Has Come,” will be published in the Regent University Law Review, Pro Tempore, in June 2023. The views expressed in this article represent his individual views and not necessarily those of Regent University.
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