Why SCOTUS should—and will—approve faith-based charter schools

Editor’s note: This was first published on the author’s Substack, Governing Right.

The Supreme Court of the United States has agreed to decide whether faith-based charter schools are constitutional.

Please forgive my brief self-focus, but this is an exciting turn of events for me. I first wrote about this issue almost fifteen years ago, hypothesizing why this then-nearly inconceivable concept might be possible. Since then, I’ve returned to the topic from time to time as state-level action and court decisions gradually made the idea seem less inconceivable.

Today, some folks want to frame this case (reviewing a decision of the Oklahoma Supreme Court) in culture-war terms: the collapse of the church-state wall, the social impact of the conservative Court, and so on.

I want to convince you of something else. Yes, the case involves the collision of the First Amendment’s two religion clauses. And yes, a series of Roberts-Court precedents all but guaranteed that SCOTUS would eventually need to consider charters.

But faith-based chartering is among the most interesting school-policy issues of the last half-century. It forces us to reckon with peculiar but foundational education choices made by officials 150 years ago. It goes to the heart of American pluralism, localism, and civil society. And perhaps most importantly, it requires that we define “public” education, which is way harder than you probably thought.

I want you to end this column knowing two things. First, the Court is going to find that states generally cannot prohibit faith-based nonprofits from operating faith-based schools under state charter-school laws. Second, that Court decision is sensible, good for schooling, and good for America.

One sector of public education: Government monopoly

The most important thing to understand about this issue is that once states adopted charter-school laws more than thirty years ago, eventually courts would have to deal with faith-based applicants. The second most important thing to understand is this day would have never come had states not adopted charter-school laws.

Here’s what I mean.

When our “common school” movement got started (this is the beginning of public education in America) in the middle of the nineteenth century, we made a decision that other nations did not make. We chose to have the government, and only the government, run public schools. School boards, which control school districts, are local-government entities. We decided that these public bodies would own and operate all public schools in a particular geographic area. So districts were established as public monopolies.[1]

Eventually, due to changes in state constitutions and a mountain of court cases, school boards ended up as unquestionably subsidiary to state governments. State governments now have ultimate control over public K–12 education. But as a matter of practice, state governments don’t really run schools; they instead delegate their K–12 authority to these local units.[2]

But the point is that from the mid 1800s until 1990, “public education” meant “government-operated schools.” We didn’t have to do this. There’s certainly a logic to it. But it wasn’t inevitable. We simply chose, for 150 years, to have all public schools be government-run schools. If you like Venn diagrams, think of the “public education” circle being a perfect overlap of the “government-run schools” circle.

That means that, in K–12 education, when we thought “public,” we thought “government-operated.” So when we thought of public-education policy, we thought of policy related to government-operated entities. And when courts thought of the powers and limits of public schools, they though in terms of the powers and limits of government-operated entities.

You can now see why we had to have secular public schools: Because they were government-operated. Government entities cannot be faith-based (per the Establishment Clause). There’s no such thing as a religious U.S. Post Office or a religious state department of housing. But even beyond the fact that public schools were government operated, they also had certain characteristics that would’ve required their secular nature. For instance, kids were required by compulsory-education laws to go to school, and if they didn’t go to private schools or homeschools, they were assigned to public schools based on their home addresses. There were no choices in the public-education space. And there was one school-provider per district (the local school board). To be clear: We couldn’t have kids assigned to religious schools.

But everything changed with chartering.

The second public education sector

State governments are required by their constitutions to ensure that public schools are provided. But the state government doesn’t have to run public schools. It doesn’t even have to delegate school operations solely to local government entities. State governments are allowed to develop other ways to ensure public schools are provided. That’s what chartering is: State laws allowed the state government to authorize nonprofits to run public schools. Importantly, these nonprofit-run public schools would be choice-based schools—no one would be required to attend a charter school. District-run schools would still exist; charters would be a supplement.

So post-chartering, we could no longer say that “public school” was synonymous with “government-run school.” Instead, we had two types of public schools. First were the government-run schools that were enrolled via residence-based assignment and whose employees were employees of the government and whose policies were dictated by state and local rules. Second were chartered public schools that are run by private nonprofits, are enrolled based on the choices of parents, and that are given explicit freedom from many state and local rules.

Because we have two very different sectors of public education now, we can no longer talk about the rules related to public schools in the way we did prior to chartering. And this is where those opposed to faith-based chartering end up in a pickle.

It was absolutely true prior to 1990 that public schools were government-owned, government-run, assignment-based entities. So saying “Public schools must be entirely secular” was accurate, even indisputable. We knew exactly what defined a public school: It was entirely possessed and controlled by the government, its employees were government employees, its students were assigned based on where they lived, and so on.

But now that we have chartering, it is far harder to define a public school. What exactly makes it a public school? Well, we know that charters are considered public under state and federal law. But charters are run by nonprofits. They are choice-based. Their employees are not government employees.[3] They are free from many state and local laws. In fact, I wrote a report twenty years ago pointing out that the preambles of state charter laws are very, very clear about how different these public schools are supposed to be from traditional, government-run public schools.

So in what sense are charters public?

Private entities, public work

Your answer might be something like, “They are carrying out a task that the government wants done, and they get lots of government money.” But according to lots and lots of court cases—and lots and lots of state and federal programs—private nonprofits often get funded by the government to do things the government wants done. Think clinics, libraries, social services, etc. This does not suddenly turn the nonprofit into a government entity. It simply makes it a private entity involved in public work. Such nonprofits generally retain their rights as private organizations.

And because of three major Roberts-Court decisions (Trinity Lutheran, Espinoza, Carson) over the last decade, SCOTUS has made abundantly clear that once a government opens the door to the participation of nongovernmental bodies, that government cannot single our faith-based groups for exclusion. That violates the Free Exercise portion of the First Amendment.

I’ve gone on too long. But I could go on for thousands of more words about how chartering fits America’s commitment to localism, pluralism, and an active civil society. I could discuss how faith-based schools already get loads of public funding via scholarship programs, ESAs, and so on. I could discuss other relevant court cases or the powers enjoyed by state governments under state-constitutional educational provisions. All of that is important.

But the key point here is that, since 1990, we’ve had two sectors of public education, and those two sectors are very different. The pre-1990 definition of public education no longer obtains (i.e., government owned and operated, entirely beholden to uniform state and local rules, enrolled by assignment), and as a result the legal rules that were obvious pre-1990 are no longer obvious.

For as long as there are government-run public schools, those schools will be secular. But chartered public schools are private entities engaged in public work. Since the government opened up the operation of public schools (via chartering) to a wide array of private nonprofits, it cannot single out faith-based entities for exclusion.

I’m not sure if Justice Barrett will participate in the decision, but I suspect her vote won’t matter. It will be 5-3, with Chief Justice Roberts writing. The opinion will vacate the Oklahoma decision. I bet it will say something along the lines of:

Oklahoma did not have to adopt charter schooling. It could have continued to have only one sector of public education: a government-run sector. But once Oklahoma (and other states for that matter) allowed independent private entities to operate public schools under contract with an authorizer, all nonprofits became eligible to participate. It is a violation of the First Amendment for Oklahoma’s state government or any government entity to single out a religious group for exclusion. Bear in mind: Social-justice nonprofits can run social-justice charters, expeditionary-learning nonprofits can run expeditionary-learning charters, Montessori nonprofits can run Montessori charters. Therefore faith-based nonprofits can run faith-based charters. It would be obvious, unconstitutional religious discrimination to permit social-justice, expeditionary-learning, and Montessori charters while categorically banning faith-based charters.