On December 1, Oklahoma attorney general John O’Connor issued an opinion letter concluding that the state’s laws prohibiting religious charter schools are unconstitutional. The prohibitions, he found, run afoul of the Supreme Court’s recent decision in Carson v. Makin, which held that Maine’s exclusion of religious schools from a tuition-assistance program for students living in rural school districts violated the Constitution’s Free Exercise Clause.
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.”
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.
All state laws call charter schools “public schools,” but the state’s choice of labels does not resolve the federal legal question. 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. And private entities are bound by the federal constitution only in the rare instances where they are so pervasively controlled by the government that their actions are effectively the government’s actions. The Supreme Court has made clear that neither the nominal designation of a private entity as “public” nor the fact that it is publicly funded transforms it into a state actor.
Charter schools in Oklahoma are not closely controlled by the government. The state gives them broad operational autonomy and frees them from most regulations governing traditional public schools. It does so to encourage an array of educational options for Oklahoma students. This is true in all states with charter schools. After all, the point of charter school laws is to foster educational pluralism that the straitjacket of government control prevents in too many cases. Because charter schools enjoy this autonomy from government control, O’Connor is right that they are not state actors. And because they are not, Carson and Espinoza make clear that the state cannot prohibit them from being religious.
The implications of Oklahoma’s decision to permit religious charter schools are immense, especially if—as I predict—the Supreme Court eventually agrees with O’Connor’s legal conclusions. School choice has gained tremendous momentum in recent years. 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.
Opening the door to religious charter schools will result in the creation of new religious schools, adding valuable pluralism to the American educational landscape. Many parents will embrace them for their children, and education reformers should, as well. Of course, not all religious schools will become charter schools. Many may reasonably choose not to, especially in states with robust school-choice programs, which tend to give participating schools even more freedom than charter laws do. But the question whether religious organizations should operate charter schools is not the same as the question whether they should be permitted to do so. The first question turns on prudential judgement; the second turns on the meaning of the First Amendment. And O’Connor has that meaning exactly right: “The State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.”
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