The Supreme Court agreed on Friday afternoon to hear a landmark religious charter schools case out of Oklahoma, and it’s a much bigger deal than you might imagine.
Many of the headlines refer to whether states “can” or “may” allow religious charter schools. But that’s not the question at all; not a single state has enacted legislation allowing religious charter schools (and the Court does not like to deal in hypotheticals). Despite the efforts of a few policy wonks (among them my colleague Checker Finn and my friend Andy Smarick), not even Oklahoma has amended its charter law to greenlight religious charters.
No, the question for the Court is whether states that allow secular charter schools must allow religious charter schools, too. And given a recent string of decisions, it seems very likely that SCOTUS will say yes.
I won’t get deep into the legalities here; excellent backgrounders are available from Education Next’s Joshua Dunn and Notre Dame’s Nicole Stelle Garnett. But in lay terms: The Court might view charter schools as essentially government contractors, rather than parts of the government itself. And it might also rule that denying charters to otherwise qualified nonprofits merely because of their religious nature amounts to anti-religious discrimination and thus violates the First Amendment’s Free Exercise Clause.
The impact that such a ruling could have on America’s educational landscape is massive. Religious charter schools will be legal overnight in every one of the forty-six states with charter school laws on the books. Religious private schools nationwide will surely take a close look at applying for charters. Becoming a charter school would unlock thousands of dollars per pupil for their operations and free their families from needing to pay tuition. That will be hugely attractive, especially with private schools struggling to stay afloat financially and those that predominantly serve low-income or working-class families.
However, becoming a charter school wouldn’t necessarily come without a cost. Charter schools must give their students federally-required assessments and face extensive auditing and transparency requirements. These “costs” are foreseeable, but there are some unknowns, as well.
The main one is whether religious charter schools will be allowed to prioritize members of their faith when admitting students. (Charter schools generally have to take all comers, and hold a lottery if oversubscribed.) Also, will they be allowed to exclude children or families that don’t abide by their values, including LGBTQ students or families? Could they hire only adherents to their religion as teachers and other staff? The Court—if it finds that states must allow religious schools—will need to spell all this out. If not, these questions are likely to be litigated for years to come.
I suspect we’ll see thousands of Catholic and other religious schools turn into charter schools in every corner of the country in the next year or two. But that’s not a foregone conclusion, for a few reasons. For one, some state charter laws make it hard for private schools (even non-religious ones) to “convert” to charter status, though those challenges can probably be overcome. More importantly, states, districts, and authorizers that don’t want religious charter schools might decide to stop approving new charters altogether. Unless the Court rules that such a move itself amounts to religious discrimination, it would be a disaster for the charter school sector—and is what has charter advocacy leaders, who oppose religious charters, understandably worried.
Policymakers and authorizers in red states would likely make their peace with religious charters—if not embrace them outright. Granted, many of those states already provide publicly-funded scholarships or education savings accounts; their religious schools will have to decide whether the extra funding that would come from “going charter” would be worth the hassle in terms of the additional red tape—and fair bit of uncertainty—that would surely follow.
But it would be easy to imagine blue states and their districts and authorizers clamping down on new charter schools altogether, especially given the political left’s antipathy to anything that blurs the line between church and state.
Ironically, then, the Supreme Court might be about to answer the teachers unions’ prayers by critically wounding the most successful education reform initiative in a generation.
