Faith-based charter schools: An emerging and contentious legal frontier

A dispute involving the growing school choice movement emerged on June 5th when Oklahoma’s Statewide Virtual Charter School Board, in a three-to-two vote, approved the creation of the first faith-based publicly funded online charter school in the United States. In response to the Board’s enabling the creation of St. Isidore of Seville Catholic Virtual School (named after the patron saint of the Internet), to proceed, the state’s Attorney General, Gentner Drummond, warned that its action would face legal challenges. “The approval of any publicly funded religious school,” he stated, “is contrary to Oklahoma law and not in the best interest of taxpayers.”

Not surprisingly, the American Civil Liberties Union, joined by an array of plaintiffs including the Oklahoma Parent Legislative Action Committee, a purportedly nonpartisan not-for-profit organization devoted to promoting policies to protect, support, and strengthen the state’s public schools, filed a lengthy, seventy-page complaint alleging violations of various provisions of the state constitution and the Charter Schools Act. Americans United for Separation of Church and State, which announced its intent to “take all possible legal action to fight this decision and defend the separation of church and state that’s promised in both the Oklahoma and U.S. constitutions,” is also a party to the suit.

St. Isidore, which would be operated by officials from the Archdiocese of Oklahoma City and the Diocese of Tulsa using public funds, plans to begin classes in the fall of 2024, with up to 500 students in grades K-12. St. Isidore intends largely to serve children and families in rural areas lacking Catholic schools.

Oklahoma is not the only jurisdiction in the United States to authorize the creation of non-public charter schools. On July 24, Guam’s legislature overrode Governor Lourdes Leon Guerrero’s July 12 veto of a bill allowing officials at both faith-based and non-sectarian non-public schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to seven such charter schools to operate at any one time.

The first section of this three-part essay briefly reviews the history and status of charter schools. The next part highlights key judicial developments that have created a legal atmosphere in which courts may be more willing to allow faith-based charter schools to operate. The third section reflects on the situation in Oklahoma now that litigation has been initiated, raising questions about viability, the legal challenges they face, and the wisdom of faith-based charter schools.

History of charter schools

The charter school movement traces its origins to the 1970s but did not begin in earnest until 1991 when Minnesota adopted legislation creating the first publicly funded schools of choice connected with local boards designed to give parents greater options for educating their children. To date, forty-five jurisdictions plus the District of Columbia, Guam, and Puerto Rico have adopted laws permitting the creation of the Nation’s approximately 7,800 charter schools educating about 3,700,000 children, accounting for about 7.5% of the United States K-12 students; only Montana, Nebraska, North Dakota, and South Dakota lack laws authorizing charter schools.

Charter schools differ significantly from other public schools. While free from many state laws and regulations pertaining to staff and curricula, charter schools remain subject to federal and local antidiscrimination laws, such as those dealing with students with disabilities and employment, issues that emerge in the dispute from Oklahoma.

In return for being exempted from state statutes and regulations, charter schools are accountable for the academic achievement of their students. While charters vary in duration, they typically range from three to five years, at which time they can be renewed or terminated based on whether they met their stated goals, the ultimate form of accountability. Until Oklahoma and Guam acted, charters schools had to, and still must, be proposed by and operated as nonsectarian institutions due to fears of violating the Eastablishment Clause, concerns that have been eased in recent Supreme Court cases.

Relevant litigation

The Supreme Court enunciated what is referred to as the Child Benefit Test (a term the Justices have not actually used) starting in a 1947 case from New Jersey, Everson v. Board of Education of Ewing Township, wherein they permitted public transportation for children to and from their faith-based schools. Later, in 1968, in Board of Education of Central School District v. Allen, the Supreme Court upheld a statute from New York mandating that local boards loan textbooks for secular instruction to all students regardless of where they attended classes because doing so benefited the children, not their religiously-affiliated schools.

Beginning in 1971 in Lemon v. Kurtzman, involving disputes from Pennsylvania and Rhode Island, the Supreme Court placed significant limits on aid to students and their faith-based schools, basically refusing to extend aid beyond transportation and textbooks. Under Lemon’s now repudiated tripartite test, highlighted below, interactions between the governmental and religious institutions and/or individuals had to “[f]irst have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion,”

In a dramatic shift, in 1997’s Agostini v. Felton, the Supreme Court expanded the limits of aid by permitting the on-site delivery of Title I services to eligible students in their faith-based schools in New York City because they qualified due to the low socio-economic status of their parents and education needs. Five years later, in Zelman v, Simmons Harris, the Justices upheld a voucher program in Cleveland, that allowed parents to move their children from failing public schools and place them in mostly Catholic schools. The Court found that the program passed constitution muster both because the students were the primary beneficiaries and because their parents placed their children in these schools as a matter of their own free choices, not because the law obligated them to do so.

Continuing the trend it initiated in Agostini, the Supreme Court’s three most recent decisions on aid expanded the reach of the Child Benefit Test in a way that offers hope for supporters of faith-based charter schools. Trinity Lutheran Church of Columbia v. Comer, from 2017, began when officials in a year-round faith-based preschool and daycare center in Missouri challenged their being denied a state grant to obtain aid to install a new surface in its playground to make it safer for children. After lower federal courts rejected the application solely due to the center’s religious nature, the Supreme Court reversed in their favor because the Free Exercise Clause does not allow states to single out faith-based institutions, and/or believers, to be denied generally available benefits simply because they are religious. Writing for the Court, Chief Justice Roberts pithily reasoned that “the exclusion of Trinity Lutheran Church from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Three years later, in Espinoza v. Montana Department of Revenue, mothers challenged an order invalidating a tax credit program for contributions to student scholarship organizations under the state constitutional prohibition of public funds to aid “sectarian” schools. Ruling in favor of the three mothers, the Supreme Court explained that because the program was permissible under the Establishment Clause, the state’s no-aid provision discriminated based on religion. The Justices concluded that while the state constitution sought to separate church and state more strictly than the Federal constitution, it violated the Federal constitutional insofar as it lacked a compelling interest to invalidate the program.

At issue in Carson v. Makin, a 2023 case from Maine, was a statute that denied tuition payments to parents in districts lacking their own secondary schools unless they sent their children to nonsectarian schools. The Supreme Court invalidated the program’s nonsectarian requirement as violating the Free Exercise Clause because it was neither neutral toward religion nor afforded parents the opportunity to send their children to the schools of their choice.

Also in 2022, in Kennedy v. Bremerton School District, the Supreme Court upheld the right of a football coach in a public high school to engage in silent prayer on the field at the end of games. Although not involving aid, Kennedy is crucial because, acknowledging that it “long ago abandoned Lemon …” the Court held that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings,’” ushering a new era and test in its First Amendment jurisprudence.

Reflections on viability and challenges

While charter schools are designed to afford parents greater choices over where they can have their children educated, they may not be the panacea supporters seek. Put another way, proponents of faith-based charter schools may want to consider the following potentially challenging realities because under the often quoted euphemism in financial matters, “control follows the dollar.” Under this maxim, will public officials respect the independence of educational leaders in faith-based charters? Or expect them to comply with state standards on such matters as curriculum, hiring, and anti-discrimination laws? How such questions are resolved could significantly impact the nature, mission, and identities of faith-based public charters schools.

The ACLU-led complaint’s position on choice is ironic at best, hypocritical at worst. The ACLU supports choice when women seek to have abortions at will or when educational officials assist transgender students without parental notice or input. Yet, as evidenced in Oklahoma, the ACLU opposes any kind of choice as to where parents wish to have their children educated.

Turning to substantive issues, the complaint initiating the litigation charges that funding St. Isidore amounts to establishing a state religion in violation of the First Amendment’s prohibition against doing so. Conversely, supporters are likely to respond that the aid benefits children, not their schools, while enhancing parental rights to the free exercise of religion consistent with Carson.

St. Isidore’s opponents ignore that the Supreme Court jurisprudence on aid to faith-based schools and their students has changed. Trinity Lutheran, Espinoza, and Carson made it clear that faith-based institutions and/or individuals cannot be denied generally available benefits solely because they are religious, a situation that seemingly exists in Oklahoma. While Attorney General Drummond “argued these cases have ‘little precedential value’ to charter school law,” it is not clear that the judiciary will agree with his position given the Supreme Court’s current “expansive view of religious rights.”

Conceding that it is written on behalf of St. Isidore’s opponents, rather than even attempting to distinguish the recent Supreme Court cases away by rejecting them as inapplicable, the complaint against it ignores these changes in the legal landscape. It will be interesting to observe whether legal supporters of St. Isidore, let alone the courts, apply these cases in its defense because they appear to buttress their position.

Also, if faculty members are to serve as role models, who will define what this means, especially under Title VII and the ministerial exception I have written about previously in Catholic World Report? This raises a question that could negate the application of the ministerial exception, taking it out of the equation, because in all of the previous cases it applied to faith-based schools not receiving direct public funding as will St. Isidore. Regardless, because the complaint ignores the ministerial exception, not even raising questions about its applicability at St. Isidore, it would have been intriguing to see what objections it might have raised.

Turning to such topics as teaching about birth control and abortion, as well as access to bathrooms by transgender students, it remains to be seen what educators in faith-based charters school can, or will, be able to teach. Will administrators and teachers be regarded as ministers or agents of the state? Other significant challenges to religious charter schools may surface over prayer and religious activity, as well as religious artifacts such as crosses in schools.

It is understandable that religious leaders cooperate in maintaining their schools as faith-based charters, but at what cost if they are unable to teach their specific beliefs instead of religion generally? To the extent that faith-based schools, especially at the elementary level, focus on inculcating their beliefs to children, how will the courts deal with such schools delivering explicit religious instruction while being publicly funded? Moreover, if religion classes are offered, will the curricula in faith-based charter schools allow educators to teach about their faiths exclusively? This opens the door to the specter of having state educational officials decide what can be taught and even who can teach it, creating the risk of casting a “pall of orthodoxy” on the free exercise of religion in faith-based schools, essentially rendering them secular.

The Supreme Court addressed teaching about, rather than of, religion in School District of Abington Township v. Schempp, a 1963 case involving disputes from Pennsylvania and Maryland banning school-sponsored prayer and Bible reading in public education. The court thought that “[n]othing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” It bears watching to see where such a line may be drawn relating to religiously-affiliated public charter schools.

On the charge that officials in faith-based charters would engage in or promote discriminatory behavior, is this really a legitimate accusation when educational leaders seek to maintain their values and missions in adherence with their sincerely held religious beliefs on matters relating to “admissions, discipline, and employment based on religion, sexual orientation, [and] gender identity” among other characteristics? The ACLU’s complaint concedes that officials at St. Isidore “will comply with antidiscrimination and other legal requirements applicable to Oklahoma charter schools only to the extent that those requirements do not conflict with its religious beliefs.”

It is unclear how it is discriminatory when educational leaders remain faithful to millennia old religious teachings when job applicants and parents seeking admission for their children should be aware of the nature of faith-based schools. If individuals are aware of the nature of faith-based charters, why would they want to work at, or send their children to, schools with whose values and teachings they disagree? One must wonder whether those challenging St. Isidore really expect that officials at St. Isidore or any other faith-based schools would, or should, ignore their beliefs in return for public funding.

Conclusion

Faith-based charter schools such as St. Isidore present challenges as well as potential benefits for educational leaders, parents, and students. While none of the concerns discussed above ought to prevent faith-based schools from proceeding at this point, they should afford proponents pause to think things through a bit more.

Moving forward, one must hope that people of good will on both sides of this, and other, educational disputes involving religion, will focus on whom innovative schools such as St. Isidore are designed to help, namely children. In light of recent Supreme Court precedent, it appears that St. Isidore has the chance to survive, perhaps giving rise to other such schools of other faith traditions, pushing the frontiers of the educational landscape by modeling true multiplicity of options in schooling in an increasingly diverse, pluralistic United States.