Earlier this summer, Oklahoma approved what would be the nation’s first religious charter school. The decision immediately was challenged by a lawsuit from Americans United for Separation of Church and State, and in late October, Oklahoma’s attorney general also filed a suit to stop the school from opening. 

The case may end up at the Supreme Court. If it does, it may become another in a line of recent cases that are reshaping assumptions about religious schools and public funding. Regardless of how the case is resolved, it will have sweeping implications for how American education and the U.S. Constitution both evolve.

Two decades ago, a religious state-funded charter school was an oxymoron. The “wall of separation between church and state” was seen as too high a hurdle. Now, it’s a very open question. The U.S. Supreme Court has changed, and with it some key precedents. Advocates on both sides now believe that the key issue will be not whether the state can fund religious schools, but whether charter schools are “state actors” — a murky question to which no one can offer a precise answer until the Supreme Court weighs in.  

The law that changed religious freedom forever
Religion cases are notably absent from the Supreme Court’s fall schedule. Is that a good thing?

The stakes are high. The outcome could open charter schools nationwide to a dramatic expansion into the religious space. But many fear that such a victory could lead to a political crisis that could wreck the charter school movement.

For now, support for charter schools remains strong, particularly among parents, in both red and blue states. A 2022 Harris poll of 5,000 parents found support in the high 70% and low 80% on questions of funding and expansion.

Charter schools remain especially popular among minorities in low-income urban areas. From 2010 to 2021, the percentage of public school students attending charters doubled, to nearly 8%. In New York City, that number is 14%.

But the charter coalition is both durable and fragile, leaning heavily for support on both free-market conservatives and low-income parents in communities of color, the latter being a core Democratic constituency, one that had long found little promise in low-performing urban schools.

“Charter schools are public schools,” said Todd Ziebarth, a senior vice president at the National Alliance for Public Charter Schools, who opposes the Oklahoma charter school. The point is hard to dispute. Charters were sold as public schools when the movement began in the early 1990s. And publicness — though the meaning of that word is elusive — remains a key part of their broad support.

“Control of government machinery by forces that are in some way aligned with God, that merge the ideas of God and faith and religion with the ideas of the state has a dangerous character.”

Charter schools were born in 1991 in Minnesota — then, as now, a swing state, always more left than right. And for over 30 years, Democratic legislators, governors and presidents have been vocal proponents — often to the frustration of their staunch allies in the teachers unions. Charters were initially embraced as an alternative to school vouchers, which send tuition checks directly to parents, Ziebarth said. 

That distinction once seemed clear enough. In a key 2002 case, the Supreme Court ruled that Ohio school vouchers used for religious school tuition does not risk establishing a religion because it “provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district.” Parents who choose to use those checks for private school tuition are not establishing a state religion, the court held.

Since 1991, U.S. education policy has fragmented in the face of evolving technology and parental choices. The lines between public and private are increasingly blurred with tuition vouchers, online charters, home-schooling and public charter schools run by for-profit entities. 

Private schools often do get various kinds of public funding, and those schools do still have more autonomy than public schools or public charters.

Today, some school choice advocates argue that there is little real difference between a tuition check touching the hands of a parent, on the one hand, and a parent sending a child — and thus, indirectly, that child’s tuition — to a charter school. 

This blurring of lines rankles traditional charter school advocates like Ziebarth. If the religious charters succeed, he fears, the charter school coalition may shatter. Supporters in blue states like Minnesota, New York and Wisconsin — all long-standing charter hotbeds — might simply walk away, resulting in an implosion of the movement.

The main push for religious charters is coming from Catholics, and it’s not too hard to see why. Catholic K-12 education has long played a key role for American education, says Andy Smarick, a fellow at the conservative Manhattan Institute and an expert on Catholic education in America.

The first Catholic school in America, Smarick notes, was founded in Florida in 1606, predating the Jamestown colony. By the late 19th century, Smarick says, waves of Irish, Italian and Polish immigrants were overwhelming the still nascent public school system. 

“In 1881 in New York, 10,000 children were refused schooling because there were not enough seats,” Smarick said, “and in 1886 in Chicago there was room for only one-third of the students needing schooling.”

Catholic schools stepped up to fill that gap, Smarick says, but in doing so they also provided cultural and religious grounding and rigorous standards for uprooted Catholic immigrants. Those schools later came to serve urban nonimmigrant populations of color, for decades filling at low cost the same gaps that charters would later fill at taxpayer expense.

Catholic school success peaked around 1965, and their decline has been steady since. Smarick lists several factors squeezing Catholic schools: a shortage of nuns and priests, who had previously provided quality instruction at cut rates; an exodus of Catholic families to the suburbs; a decline in anti-Catholic bias, symbolized by the election of a Catholic president in 1960; and ultimately charter schools themselves, which can now provide, at state expense, respect and rigor, two hallmarks of Catholic schooling.

Call it coincidence or divine providence, but these existential threats to Catholic education have reached a crescendo at the very moment that changing Supreme Court precedents may point toward a historic opportunity for them. 

Since 2020, Notre Dame University law professor Nicole Garnett, among others, has been doggedly making the once improbable argument that funding religious charter schools may be not an option, but rather a constitutional obligation.

Garnett relies on three recent Supreme Court decisions that broaden the First Amendment’s religious free exercise clause. In 2017, the court ruled that a state program funding playground upgrades for private schools must be open to religious schools. 

In 2020, the court held that “once a state decides” to subsidize private schools “it cannot disqualify some private schools solely because they are religious.” A dissenting Justice Stephen Breyer in Espinoza asked: “What about charter schools?” 

Then in 2022, the court held that “a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The upshot of these three cases seems to be that if a state funds private schools in any form and to any degree, then religious schools must be treated as equals with their secular counterparts. 

Ira Lupu and Robert Tuttle, law professors at George Washington University, have called this “a radical shift from the longstanding paradigm of no direct state funding for religious experience to one that requires equal funding of such experience.”

Thirty-seven states, Lupu notes, have constitutional amendments that prohibit public funds from being used for religious schools. Are they, he asks, now all unconstitutional?

The outcome could open charter schools nationwide to a dramatic expansion into the religious space. But many fear that such a victory could wreck the charter school movement.

The history of those amendments is controversial. In the 19th century, as Catholics set out to build their own educational system and urged their people to send their kids to them, many states implemented amendments to make sure Catholic schools got no public assistance. Oregon, Smarick notes, went so far as to outlaw private schools altogether.

Catholics have not forgotten that most of these amendments were originally aimed at their ancestors. Collectively, these funding prohibitions are often referred to as “Blaine Amendments,” after Maine Republican Congressman James Blaine, who in 1875 proposed a national amendment to bar funding of religious schools. 

These historic state policies were called out in 2022 in Carson v. Makin by Justice Clarence Thomas as a “shameful pedigree” and “born of bigotry” that “arose at a time of pervasive hostility to the Catholic Church and to Catholics.”

George Washington law professor Ira Lupu objects to the term “Blaine Amendments.” The history of these rules is complex, he said, and their current intent is quite different from their past purpose. 

Lupu is very critical of all three of the key cases now in play, culminating in Carson v. Makin. Their reasoning is out of kilter with existing precedent, he argues, and their effect will be to weaken vital guardrails that allow religion to serve as a check on political passion, without putting faith at the service of those passions.

“Control of government machinery by forces that are in some way aligned with God, that merge the ideas of God and faith and religion with the ideas of the state has a dangerous character,” Lupu said. “When I think about separation of church and state, I think of it as separation of powers.”

But Lupu says that you must play the cards you are dealt. And if we take recent Supreme Court rulings at face value, then it probably follows that government support to private religious schools must flow equally with support to secular private schools. That is, a state that funds schools with various worldviews cannot discriminate per se against a school with a religious point of view.

If so, the key question now is whether charter schools are private or public.

The National Alliance for Public Charter Schools believes it knows the answer. It’s in their name. Many legal scholars, Ira Lupu included, agree. Most state laws do declare charters to be public schools. And that consensus has, as noted, always been central to the coalition’s strength.

But Nicole Garnett at Notre Dame Law School begs to differ. 

In 2020, Garnett argued that “in most states, charter schools ought not to be considered, for federal constitutional purposes, ‘state actors’ (which is to say that their actions are not reasonably attributable to the government).”

This is all understandably confusing. The key is to realize that the state can fund an entity without making it a public entity. Public defenders are private actors. The question is whether charter schools are. 

“Since they are not state actors,” Garnett continued, “they are effectively private schools and can be religious without running afoul of the Establishment Clause. And if they can be religious, states with charter schools must permit religious charter schools.”

In sum, if charters are private entities, akin to government contractors, then religious charters will likely be allowed or even required under the Free Exercise clause. But if they are “state actors,” more akin to government agencies, then religious charters would be barred under the Establishment Clause.

Critics dispute this doctrine on the merits, as Lupu does. But most agree where the current logic points. The key question, it now appears, is whether charter schools are “state actors.” 

In the 1960s, Yale Law professor Charles L. Black called state “a torchless search for a way out of a damp echoing cave.” Little has changed since.

The story of “state action” begins in 1871. After the Civil War, defeated Confederate states fought on, attempting to subvert racial equality with every legal and political trick at hand. Congress fought back with the Ku Klux Klan Act of 1871, which allowed any individual to sue any state actor for any constitutional or federal statute violation. This law is now known as Section 1983 of Title 42 of the U.S. Code. 

Section 1983 remains a powerful weapon to bring janky “state actors” to heel.

But who is a state actor? The rules are as murky as the tool is powerful. Questions center on the functions being performed and the degree of financial and regulatory control exercised by the state. And the answers may vary from state to state.

The proposed St. Isidore of Seville School under Oklahoma law would not be a state actor, says Michael Moreland, a law professor at Villanova University, a Catholic college in Pennsylvania. The Oklahoma virtual charter system, he told me, is “already partnering with entities not directly controlled by the state. They’re contractors, but government contractors don’t necessarily become state actors.”

State action doctrine is an infamous mess. In the 1960s, Yale Law professor Charles L. Black called state action a “conceptual disaster area,” a “paragon of unclarity,” and, most famously, “a torchless search for a way out of a damp echoing cave.” Little has changed since.

The Supreme Court has not yet decided if charter schools are state actors. And in 2022 it passed on the opportunity. In Peltier vs. Charter Day School, the 4th Circuit Court of Appeals rejected a strict dress code of a North Carolina charter school that required girls to wear skirts, jumpers or “skorts.” The 4th Circuit held that the school was a “state actor” and that the dress code violated the equal protection clause, by which state actors are bound. The Supreme Court declined to take the case, leaving the question open.

In successfully urging the Supreme Court to not decide the Peltier case, the American Civil Liberties Union argued that the issue remains murky and that this is not the moment to resolve it. “Only two courts of appeals have ever addressed whether a charter school is a state actor for any purpose,” the ACLU wrote, “and they reached different results by applying the same legal standard to very different state law regimes.”

When Oklahoma Attorney General Gentner Drummond filed suit to stop St. Isidore from opening, he warned that if approved, the school could set a dangerous precedent. 

“Today, Oklahomans are being compelled to fund Catholicism,” Drummond said in a press release, but “tomorrow we may be forced to fund radical Muslim teachings like Sharia law.” In his legal brief he warned that “the law will pave the way for a proliferation of the direct public funding of religious schools whose tenets are diametrically opposed by most Oklahomans.”

St. Isidore would not open sooner than the fall of 2024, offering online classes to about 500 students, from kindergarten to high school. 

This story appears in the December issue of Deseret MagazineLearn more about how to subscribe.