The Future for Religious Charter Schools

As the band Buffalo Springfield put it more than a half-century ago, “there’s something happening here.” Indeed, there is. What is “happening” in Oklahoma is a striking development in educational policy, one that promotes pluralism, enhances opportunity, and vindicates religious freedom. 

The Oklahoma Statewide Virtual Charter School board, which authorizes and oversees all virtual charter schools in the state, meets today to consider certifying an unusual, pathbreaking school. The St. Isidore of Seville Catholic Virtual School—named for the patron saint of the internet—is clear and candid about its character and mission. “To the extent permissible under the Oklahoma Charter Schools Act,” its application says, the school will operate “in harmony with faith and morals … as taught and understood by the Magisterium of the Catholic Church based on Holy Scripture and Sacred Tradition.” As the application’s drafters are no doubt aware, though, relevant Oklahoma law requires that charter schools be “nonsectarian” and prohibits chartering schools that are “affiliated with a . . . religious institution.” 

Oklahoma’s prohibition is typical. All forty-five of the states that authorize charter schools require them to be non-religious. The prohibition is also, we believe, unconstitutional. Interestingly, the office of the state’s attorney general agrees. In an “official opinion” published in December 2022, that office reviewed recent and controlling decisions by the Supreme Court of the United States and concluded that the discrimination against religious schools required by Oklahoma’s charter school law violates the First Amendment and “therefore should not be enforced.” 

The premises of St. Isidore’s application are clear and straightforward. The First Amendment to the Constitution guarantees the “free exercise” of religion and so prohibits anti-religious discrimination by governments. As Chief Justice John Roberts put it in last summer’s Carson v. Makin decision, “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Accordingly, the justices ruled, it was unconstitutional for Maine to exclude “sectarian” schools from a program that helped pay the private school tuition of kids who live in rural areas without government-run schools. By the same token, the Oklahoma attorney general’s letter correctly reasons, a state may not open up a charter school program—one that permits private entities to accredit and operate a wide variety of schools—but exclude otherwise qualified schools simply because of their religious character or affiliation. 

Note that St. Isidore’s argument is not that secular, civil governments in the United States may or should operate religious enterprises. After all, the First Amendment also protects religious freedom by outlawing religious establishments. Under our Constitution, religious and political institutions and authorities are distinct. They may and often do cooperate, to be sure: Governments have long funded religious agencies’ healthcare and social welfare services, asylum resettlement and anti-human trafficking efforts, and schooling and research. What our “separation” of church and state means, though, is that secular governments do not decide matters of religious doctrine or interfere with churches’ religious affairs. 

In practice and on the ground, however, charter schools are not government schools. They are publicly funded and regulated (like many religious schools), but their appeal has long been precisely that they enjoy meaningful independence and flexibility and are generally approved and run by private operators. They are not, in legal terminology, really “state actors.” And so the conclusion follows neatly from Carson: Once a state decides to engage and cooperate with non-governmental actors to educate its residents, it cannot single out for exclusion actors whose motives or methods are “religious.” 

If St. Isidore’s application is approved—and it should be—other states will almost certainly follow suit, and so much the better. A political community’s commitment to the education of the public need not and should not involve a blinkered, discriminatory attachment to government monopoly. What should matter in education policy is not the ownership of school buildings or the interests of public-employee unions. As Jack Coons argued in the pages of First Things more than thirty years ago, it is “unrealistic” for education reformers “to expect the custodians of the public monopoly to purge the system.” 

The benefits—and the moral imperatives—of educational pluralism and parental empowerment are clear. In recent years, the Supreme Court has substantially repaired church-state doctrines that were misguided and damaging, and so cleared the way for better thinking about children’s formation. St. Isidore’s charter school application in Oklahoma is just the beginning. Stay tuned.  

Nicole Stelle Garnett is the John P. Murphy Foundation Professor of Law at Notre Dame Law School. 

Richard W. Garnett is professor of law and concurrent professor of political science at the University of Notre Dame. 

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Image by Fotothing/Luis García licensed via Creative Commons. Image cropped.