Religious Charter Schools May Be Around the Corner
The Supreme Court’s recent decision in Carson v. Makin may have cleared the path to religious charter schools, contended Oklahoma Attorney General John O’Connor in an advisory opinion.
“O'Connor cites recent Oklahoma and U.S. Supreme Court rulings to argue that the state can't allow some private entities to receive state funds for charter schools, but bar others based on their religious status,” reported The Oklahoman.
“The opinion,” continued The Oklahoman, “was in response to Rebecca Wilkinson, executive director of the Statewide Virtual Charter School Board, who had asked the attorney general's office if her board should continue to enforce the nonsectarian requirements in light of the Supreme Court ruling in three different states that it's unconstitutional to exclude religious entities from benefiting from public benefit programs relating to pre-K, primary or secondary schools.”
According to The Oklahoman, O’Connor argued, “Under Trinity Lutheran, Espinoza, and Carson, it seems obvious that a state cannot exclude those merely ‘affiliated with’ a religious or sectarian institution from a state-created program in which private entities are otherwise generally allowed to participate if they are qualified. And that is exactly what this provision does.”
“Current law,” reported The Oklahoman, “requires a ‘charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations,’ and that a ‘sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.’”
Writing in the Manhattan Institute’s City Journal, Nicole Stelle Garnett endorsed O’Connor’s opinion: “O’Connor is right, and other states should follow Oklahoma’s lead. Forty-four states have charter school laws. All, like Oklahoma, have required charter schools to be secular and most, like Oklahoma, also prohibit them from being operated by or affiliated with religious institutions. The constitutionality of these restrictions was at issue even before Carson. I have myself been beating the religious-charter-school drum loudly, especially since the Court’s decision in Espinoza v. Montana two years ago, which clarified that while ‘a State need not subsidize private education . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”
Garnett elaborated: “In dissent, Justice Stephen Breyer asked, ‘What about charter schools?’ The answer turns on a complex legal concept unrelated to religion called the ‘state action doctrine,’ which boils down to the question of whether charter schools are, for federal constitutional purposes, private or public schools. If they are private, then, as O’Connor has concluded, the import of Carson and Espinoza is that prohibitions on charter schools being religious are unconstitutional. But if they are public—that is, ‘state actors’—then the First Amendment’s Establishment Clause likely requires that they be secular.”
Garnett continued: “Whatever states call them, charter schools differ from traditional public schools in ways that matter under state-actor doctrine. Traditional public schools are government institutions. Charter schools are not. They are privately operated, usually by nonprofit entities. Some states, including Oklahoma, also allow for-profits to operate charter schools.”
The implications of O’Connor’s opinion are huge, concluded Garnett. If the Supreme Court in time concurs with O’Connor, as Garnett predicts, the landscape of K-12 education will be dramatically altered.
“School choice has gained tremendous momentum in recent years,” Garnett wrote. “Thirty-one states have at least one program that provides public financial help to enable children to attend private schools. This year, two states—Arizona and West Virginia—made eligibility to participate universal. Still, these programs serve only about 1 percent of all K-12 students (approximately 700,000 students). In contrast, 7 percent of all public school students (3.5 million students) attend charter schools. Eleven percent of Oklahoma’s students do. And the per-pupil funding available for charter school students (just shy of $12,000) is much higher than the resources provided through school-choice programs.”
- S. Karn