Charter Schools Pose Supreme Court’s Next Religious Liberty Test

The US Supreme Court has blurred the line separating church and state in recent years and charter schools are likely to be next in the fight to expand religious liberty.

An Oklahoma school board decision last week to approve the first publicly funded religious charter school is expected to tee up a legal challenge that could get to the court as early as next term. Central to that litigation is whether charter schools are public or private, a question the Supreme Court has already been asked to answer in a case pending before the justices.

“It’s been clear, at least for about a year since the court handed down Carson v. Makin, that charter schools would be the next frontier, so we’ve been expecting this,” said Nelson Tebbe, a Cornell Law School professor who teaches freedom of speech and religion. “The timing isn’t coincidental. Oklahoma must have seen the court’s decision in that case from Maine and must have realized this is the next step.”

Litigation over Oklahoma’s charter school could give the high court another opportunity to chip away at the First Amendment’s establishment clause, which prohibits governments from sponsoring religion.

The court that’s now dominated by a 6-3 conservative majority has already protected the religious rights of a high school football coach to pray on the field after games and given parents the right to use state tuition assistance to send their kids to religious private schools.

Varying Laws

Last June, the court in Carson said Maine couldn’t constitutionally exclude private religious schools from a taxpayer-funded tuition assistance program that’s available to parents who live in areas without their own public schools. In the 6-3 decision written by Chief Justice John Roberts, the court said Maine’s administration of this benefit “is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.”

Tebbe said if everyone assumes that it’s OK to have secular public schools, it’s unclear where charter schools fit in.

“Are they public schools that can remain secular and in fact must remain secular under current law, or are they private schools that may and must be funded alongside other private schools?” Tebbe asked.

University of Notre Dame Law School professor Nicole Stelle Garnett said charter schools in most states are privately operated independent of the government so that makes them private schools.

That may vary though by state based on how they’re regulated, “which actually makes it much harder for the Supreme Court to resolve the question,” Garnett said.

The justices are scheduled to consider a case out of North Carolina at their June 22 conference that poses this very question and stems from a dispute over a charter school’s adoption of a dress code that requires girls to wear skirts.

The US Solicitor General’s Office advised the court not to take the case. The Justice Department argues the US Court of Appeals for the Fourth Circuit correctly held that the charter school’s enforcement of the dress code is a state action that violates the Constitution’s equal protection clause.

If the court were to rule the charter school is not a state actor, the solicitor general’s office said that “would allow States to evade constitutional constraints by delegating core governmental functions to private entities.”

The question of whether charters are considered public or private is a new phenomenon, said Ben Erwin, a senior policy analyst at the Education Commission of the States, a nonpartisan national policy organization.

“State law outlines who’s allowed to apply for a charter school and there are some states that are very explicit that they have to be non-sectarian or non-religious,” he said. “In a lot of cases they may not be explicit but I do think it’s implied in some states.”

The Supreme Court’s 2020 decision in Espinoza v. Montana Department of Revenue, however, has raised uncertainty about the legality of those laws. The court ruled a provision of the Montana Constitution unconstitutional because it prohibited government aid from going to any school “controlled in whole or in part by any church, sect, or denomination.”

The possibility of a religious entity receiving approval to run a religious charter school wasn’t on Erwin’s radar until after the court’s decision in Carson two years later.

“It was something that has been talked about in some advocate circles, but not something we saw any possibility of implementation around.”

Establishing Religion

Notre Dame Law School’s Religious Liberty Clinic is advising Oklahoma’s Statewide Charter School Board on its approval of the Catholic Archdiocese of Oklahoma City’s application to establish a publicly funded online virtual charter school.

“The goal of the school is to extend a high quality Catholic education to underserved communities in a large rural state and I think that’s a good thing,” said Garnett, who advises the clinic on educational issues.

Americans United for Separation of Church and State is preparing litigation to challenge the new school.

“Public schools are not Sunday schools,” said Alex Luchenitser, the group’s associate vice president and interim legal director. “Public schools should not teach religion and allowing the school to operate would be a gross violation of the US constitution and state constitution.”

Luchenitser said Americans United is deciding when and where to file its lawsuit, but agreed this case or another could reach the Supreme Court.

While it’s hard to predict how the court would decide this issue, Tebbe noted it’s rarely ruled against religious interests in the past 10 years.

“If you just think about it that simply, you might predict they’ll take this case and uphold the Oklahoma law,” he said.

Now retired Justice Stephen Breyer noted in dissenting from the court’s decision last term in Kennedy v. Bremerton School District that the justices have been ruling for the free exercise of religion with little consideration of the establishment clause.

In that case, which was decided a week after Carson, the court ruled 6-3 for a high school football coach who had lost his job for praying midfield after the games. The majority said the Bremerton School District had violated the coach’s First Amendment rights in firing him.

Procedural issues, however, could keep this publicly funded virtual charter school in Oklahoma tied up in state court litigation. Oklahoma Deputy Attorney General Niki Batt sent a letter to the executive director of the school board on June 5 questioning the lawfulness of a member’s appointment to the board and the validity of their vote for the school.

“The vote counts unless a court determines otherwise, and for that to happen, it would have to be challenged,” Leslie Berger, a spokesperson for the state attorney general’s office said in an email. “We are looking at all options on how to proceed.”