Federal courts may be on the verge of legalizing faith-based charter schools. Though this would be a welcome development, policymakers should not hang back and wait for the judiciary to lead. While faith-based chartering does raise a few complex legal questions, only state legislatures can fully address the thorny policy questions related to performance measurement, accountability, funding, and employment. Indeed, smart legislative action in the 1990s and 2000s contributed to the outstanding results produced by charter schooling in leading states.
Since the charter movement began 30 years ago, state laws and federal programs have been clear: charters must be secular. Though this was partially a political choice (to differentiate chartering from private-school choice), it was also a seemingly straightforward legal decision. Charters were defined as public schools (they receive direct public funding, administer public school tests, and are publicly accountable for results), and public schools could not be religious.
But for about 20 years, various writers have backed the idea of experimenting with faith-based charters once it becomes possible. If a faith-based school can receive public dollars via vouchers and stay free of nearly all government regulation, shouldn’t a faith-based school be permitted to receive public dollars via a charter agreement that comes with public accountability? These proponents’ position has been boosted over the last several years by three major Supreme Court decisions. In short, the Court has clarified that when a state government makes a public benefit widely available, the state can’t single out faith-based groups for exclusion. In other words, if secular nonprofits are eligible for something, it is unconstitutional anti-religious discrimination to make faith-based nonprofits ineligible. Since chartering enables nongovernmental bodies to run public schools, the Court seems primed to say that, if a state allows chartering, then it must allow faith-based charters.
The courts’ involvement is being provoked along several fronts. The three Supreme Court decisions are causing state leaders to think anew about their charter school laws. Those decisions invalidated a Missouri law on resurfacing playgrounds, a Montana tuition tax-credit program, and a Maine high school tuition program. States generally dislike it when federal courts declare their laws unconstitutional, so some leaders are wondering if it is still constitutional to single out religious organizations for exclusion in charter programs. Indeed, in late 2022, Oklahoma’s attorney general read those decisions and issued an advisory opinion declaring that the state could no longer prohibit faith-based groups from operating charter schools.
Those interested in running faith-based charters, meantime, suddenly see opportunity. Indeed, Catholic leaders in Oklahoma quickly seized the opportunity presented by the attorney general’s advisory opinion and applied to start a charter. Others nationwide could follow suit, especially if that application is approved. To be clear, the charter authorizer’s decision—either way—will not be the final word; the current Oklahoma attorney general rescinded his predecessor’s advisory opinion, and the authorizer is wrestling with whether to approve the application for a host of legal and operational reasons. The losing side will surely appeal, and that fight could be replicated in several states. Before long, multiple state and federal courts could be engaged in reconciling state charter law language, state constitutional language, and Supreme Court decisions.
The Supreme Court is also poised to accept a case involving a North Carolina charter school’s uniform policy. At issue is whether charter operators are “state actors” executing a governmental power or private entities engaged in a civil society activity with public support. The distinction is key: if charters are deemed state actors, they need to be secular; if they are deemed private entities, the possibility of faith-based chartering remains alive. The Fourth Circuit Court of Appeals determined that the operator is a state actor, but several judges dissented. The Supreme Court could hear that case next term.
States’ political branches might be tempted to stand down while the court system sorts this out. That would be a mistake. Chartering and private-school choice both launched in the early 1990s. Politics helps explain why chartering spread quickly in those early years and private-school choice did not—and the law does, too. Lawsuits arguing that vouchers and similar programs ran afoul of the federal and state constitutions slowed much legislative activity. It wasn’t until 2002 that the Supreme Court declared vouchers constitutional. But for years thereafter, many states’ “Blaine Amendments” (state constitutional provisions rooted in anti-Catholicism that banned financial support for faith-based schools) thwarted school choice.
During that delay, policymakers learned a lot about chartering. Real-world experience in founding, authorizing, opening, operating, and monitoring charters taught state leaders what worked and what didn’t. It was not uncommon for states to amend their charter laws regularly. State legislatures adjusted caps on the number of charters allowed and regulations concerning operating and facilities funding, the number and types of authorizers, educator certification rules, and more. This ongoing process of learning and making course corrections helped advocates understand what a model charter-school law looked like. Many cities that built impressive charter sectors—such as Boston, Indianapolis, Newark, New Orleans, and Washington, D.C.—had strong charter laws.
If faith-based charters are coming, the policy world should start the deliberation and learning process as soon as possible. Judges must reconcile the tension that arises between the Establishment Clause and the Free Exercise Clause and determine whether faith-based charter operators would enjoy the “ministerial exception” or be subject to all state employment rules. But the legislature would need to fill in the details of the broad determinations made by the courts. Moreover, legislatures will need to consider issues unlikely to be addressed by courts. Should a state create a new authorizer that could develop expertise related to this new type of school? Should it permit faith-based charters to give more weight to certain performance measures (character development, say, or public service)? Should authorizers be allowed to permit faith-based charters to opt out of any state content standards? Should certain types of religious instruction be prohibited? Statutory and constitutional interpretation is no substitute for policymaking.
America now has more state-level choice programs than ever before, and the last two years have seen unprecedented growth in education savings accounts (ESAs), which expand both the number of eligible families and the range of educational options from which families can choose. Some choice advocates understandably want to go all-in with private school choice and ESAs. In this light, faith-based chartering could be seen as a distraction.
But it would be prudent to diversify the school-choice strategy. Thanks to 30 years of operations across more than 40 states, serving millions of students across thousands of schools along the way, chartering has adapted to address countless challenges. It has found a way to blend not only parental choice and public accountability but also civil society activity and democratic oversight. It has shown itself capable of creating a wide variety of schools that families like and that help students succeed. Charter laws have helped launch new, innovative programs and enabled successful schools to serve more students.
Perhaps today’s new private-school choice programs will prove to be an unqualified success—wildly popular with families and boasting outstanding student results, with no policy mistakes, no operational flubs, and no malfeasance. But in governing, things always go wrong. Maybe average ESA funding levels are too low to foster a thriving sector of new educational providers. Maybe some low-quality providers sully the reputation of choice. Maybe the piecemeal approach to education enabled by ESAs (i.e., families using funds to purchase some online courses, some tutoring, some books) proves less appealing to families than the traditional full-school, brick-and-mortar experience. At minimum, advocates should recognize that today’s remarkable run of school-choice victories won’t last forever. Some states won’t adopt such programs, and some future governors and legislatures will turn against current programs.
None of the above casts doubt on the moral case for school choice or the benefits of choice programs. It is simply a clear-eyed view of policymaking, policy implementation, and politics in the real world. Thoughtful legislation in the next few years can protect school choice and advance student learning by positioning faith-based chartering as a complement to private school choice. And the state-level political deliberation and compromise necessary to bring this reform to life will be good for American democracy and pluralism.