Are Religious Charter Schools Constitutional?

In May, the Supreme Court managed to resolve the first big case about religious charter schools without deciding anything. In Oklahoma Statewide Charter School Board v. Drummond, the justices split 4–4 after Justice Amy Coney Barrett recused. That left in place an Oklahoma Supreme Court ruling that forbids religious charter schools but sets no national precedent.

As Tim Rosenberger and I wrote last summer, that non-decision guaranteed future litigation. We predicted that the resulting case could determine “whether religious liberty and educational opportunity are truly available to all families.”

That prediction didn’t take long to pan out. Right before Thanksgiving, Tennessee attorney general Jonathan Skrmetti issued an opinion concluding that key provisions of his state’s charter school law likely violate the Free Exercise Clause of the First Amendment.

Tennessee law requires charter schools to operate as “nonsectarian [and] nonreligious,” and bars as sponsors any organization that “promote[s] the agenda of any religious denomination or religiously affiliated entity.” Skrmetti concluded that these provisions exclude otherwise-qualified religious groups from a public benefit with no compelling justification, in tension with recent Supreme Court rulings that forbid discrimination against entities “solely because of their religious character.”

Five days later, the anticipated test case arrived. The Wilberforce Academy of Knoxville filed a federal lawsuit challenging Tennessee’s ban and the Knox County Board of Education’s implementing policies. Wilberforce plans to open a school that “unite[s] high-quality academics with a strong biblical foundation” and will be open to all students. No child would be required to affirm any doctrine or participate in worship, but the school would be unapologetically Christian.

Under current state law, that’s disqualifying. Knox County also layers on its own rules, declaring that charter schools must follow “Establishment Clause restrictions prohibiting public schools from engaging in religious instruction” and warning that it “will not approve any religious charter school.” In a letter of intent submitted to the local school board, Wilberforce admitted that it fails the sponsor-eligibility test.

If that sounds like discrimination “solely because of their religious character,” that’s because it is. Carson v. Makin (2022) made clear that once a state chooses to subsidize private education, it cannot exclude religious providers on that basis. Tennessee does both: it funds charter schools and, through its Education Freedom Scholarship Program, pays for thousands of students to attend the private schools of their choice (most of which are religious). Yet religious organizations are uniquely barred from participating in the charter sector.

The core legal question—left unresolved by Drummond—is whether charter schools are best understood as public schools (and thus state actors) or as privately run schools providing a public service under contract.

In the Manhattan Institute’s amicus brief in Drummond, we argued that merely labeling schools “public” doesn’t magically convert their pedagogical choices into state action. If it did, vast swaths of social services delivered by faith-based hospitals, shelters, and charities would suddenly be constitutionally suspect.

Skrmetti’s opinion takes that logic seriously. The attorney general emphasizes that Tennessee invites nonprofits to design and operate charter schools with “maximum flexibility” over curriculum and mission, subject mainly to academic standards and civil rights laws. Against that backdrop, excluding religious entities triggers “exacting scrutiny” under Supreme Court precedent.

The Tennessee case also exposes an “equity” problem that too often goes unnoticed. Wealthy families already exercise school choice by moving to different neighborhoods or paying private tuition. Many lower-income families can now do so through scholarships or voucher programs. But families who rely on charter schools are told that their options must be secular, even when the state is perfectly willing to fund religious education for others through a different mechanism. That’s neither equal treatment nor meaningful pluralism.

The Supreme Court has already rejected the idea that neutral programs become constitutionally suspect simply because religious providers participate. When funds flow to schools through the independent choices of parents, the Establishment Clause isn’t offended. But the Free Exercise Clause is offended when a state tells institutions that they may serve children with public support only if they shed their religious identity at the schoolhouse door.

That’s ultimately what’s at stake in Tennessee. Wilberforce Academy is merely asking to compete on the same terms as secular nonprofits that already run charter schools. If charter programs are to remain a genuine alternative within public education—and if “school choice” is to be more than a slogan—then families must be free to choose faith-based options on equal footing.

The Supreme Court’s deadlock in Drummond ensured that this issue would return with a full complement of justices. Tennessee, armed with an attorney general’s opinion acknowledging the constitutional problem and a clean factual record of overt religious exclusion, offers an ideal vehicle. The question it presents is simple: Will states be allowed to wall off religious schools and families from public education programs that are otherwise open to all?

The answer should be no. This is not a technical First Amendment fight, but one that goes to the heart of educational freedom and equality—and a truly pluralistic America.

Photo by Shedrick Pelt for The Washington Post via Getty Images