Charter schools are schools that are public schools that are privately managed but funded by government. Because they are publicly funded as a regular public school is funded, they are generally subject to similar, albeit typically less restrictive, state regulations respecting curricular and related matters. A movement to allow religious charter schools has increased questions on whether public funding can be used for schools that promote a particular religion.
Public schools run by government are required to be secular. But in areas where charter schools exist, students and their parents may choose against a publicly run public school and instead choose a charter school.
Charter schools are based on the idea that competition and school choice will foster the provision of better education. They seem particularly popular in communities, like New Orleans, where public schools appeared to be failing. They also were a component of the No Child Left Behind Act of 2002.
The first charter school was established in Minnesota in 1991. As of 2021/22 school year, roughly 7,800 charter schools were operating in the United States, according to the National Center for Education Statistics.
Unlike purely private or parochial schools, charter schools do not charge tuition.
Private operation of charter schools raises questions about religious instruction
Private operation of charter schools raises First Amendment questions. Because they are privately operated, it is not always easy to ascertain the degree to which they are bound by Supreme Court rulings involving the establishment clause of the First Amendment. Public schools run by government cannot provide religious instruction or require students to participate in religious activities.
Rulings in Engel v. Vitale (1963) and Abington School District v. Schempp (1963), for example, restricted the government from mandating devotional prayer and Bible reading in public schools.
Some states prevent private schools, including parochial schools, from converting to publicly funded charter schools. However, in recent years, there has been a movement to allow religiously based charter schools.
Supreme Court has ruled on aid to religious schools, religious activity in public schools
A number of cases are likely to set the stage for future court decisions regarding charter schools and religion:
- Zelman v. Simmons-Harris 536 U.S. 639 (2002). The Supreme Court upheld use of publicly-funded vouchers to enable low-income families in Cleveland, Ohio, to send their children to religious schools against charges that such vouchers constituted aid to religion. The majority interpreted the program as neutral since students and parents exercised the choice as to which schools to attend.
- Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 143 (2011). The Supreme Court upheld an Arizona law by rejecting taxpayer standing to individuals seeking to challenge tax credits of up to $500 per taxpayer toward contributions to school tuition organizations that included religious schools.
- Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). The Supreme Court held that a church school could not be excluded from a governmental aid program that was designed to make child playgrounds safer.
- Espinoza v. Montana Department of Revenue (2020). The Supreme Court further invalidated a law in Montana that prohibited the use of funds for a state scholarship program (for which donors had received tax credits) from going to children attending parochial schools.
- Carson v. Makin (2022). The Supreme Court in a decision authored by Chief Justice John Roberts ruled that the state of Maine could not, in rural counties without public schools, refuse tuition reimbursement for families who chose to send their children to religious rather than public schools. In his dissent, Justice Stephen Breyer specifically raised the question as to whether this set a precedent for religious charter schools.
In general, the sentiment of the majority of justices on the U.S. Supreme Court has shifted from strict adherence to a wall of separation between church and state and a more accommodationistic stance that stresses neutrality in aiding parental choices.
They also have put greater emphasis on the free exercise clause — as in Kennedy v. Bremerton School District, 597 U.S. ____ (2022), where the Supreme Court upheld the right of a football coach in a public school to pray on the 50-year line after a game.
Some decisions appear to rely upon the so-called “child benefit theory,” that allows aid that is funneled to schools through parental choice rather than on the basis that they are predominately religious or secular.
Oklahoma moves toward allowing religious charter schools
Although he has not yet succeeded in his efforts, Tennessee Governor Bill Lee has been advocating the establishment of charter schools within the state to be run by Hillsdale College, a private evangelical college in Michigan, whose president has been highly critical of public education.
In 2023, the Oklahoma Statewide Virtual Charter School voted to approve the establishment of St. Isidore of Seville Catholic Virtual School to provide Catholic education throughout the state. The state’s attorney general, Gentner Drummond, challenged the charter school contract. In 2024, the Oklahoma Supreme Court declared the contract unconstitutional, ruling that the state constitution barred funding religious entities. It also said that making a religious school a state charter school would violate the establishment clause of the First Amendment.
Courts must ultimately decide whether state recognition of religious charter schools is constitutional and whether aid to such schools would be an improper First Amendment establishment of religion or whether such support would enhance free exercise by allowing parents greater choice as to where to educate their children.
If state aid is approved, there might be further questions as to the degree of supervision that such states can exert and whether religious charter schools might decide to reject such aid to keep their independence. In Peltier v. Charter Day School (2023), the U.S. Supreme Court thus denied an appeal from a U.S. circuit court that had invalidated a requirement that girls wear skirts, a requirement that was based on the school’s belief that girls were “fragile vessels” and the desire to promote male chivalry.
These issues might in turn depend on the degree to which courts regard attempts by such schools to inculcate religious doctrine as unconstitutional state action under the First Amendment or simply as private action, which results from parental choice, and is not limited by the strictures of the establishment clause.
Courts may also have to decide whether so called Blaine Amendments in state constitutions that restrict state aid to parochial schools might set a higher bar against aid in such states than others or whether these amendments would be trumped by the First and Fourteenth Amendments of the U.S. Constitution.
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2017.