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Battle Over Religion in Public Schools Continues 

The Oklahoma Supreme Court ruled a Catholic institution could not be a public charter school, but the issue is far from resolved.

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The Oklahoma Supreme Court recently struck down a state agency’s approval of a Catholic school as a public charter school. To include religious schools in the state’s charter school system, the court held, violates not only the First Amendment to U.S. Constitution but also two provisions of the Oklahoma Constitution — one barring the use of public money by sectarian institutions, and the other requiring the state to establish “a system of free public schools.” The court concluded as well that the charter violated the Oklahoma charter school statute.

This is an important case. Charter schools are a thriving sector of American education. Of the 48 million American children attending public school in 2022–23, 7.6 percent of them — 3.7 million — were charter school pupils. (The corresponding figure in Oklahoma is 7.2 percent.) As of 2020, statutes authorizing charter schools, like Oklahoma’s, were on the books in 45 states and Washington, DC. These statutes, many of which have been in place for decades, allow state agencies to grant applications from privately organized groups to operate a school as part of the state’s charter school system. The permit to operate is called a “charter.”

Charter schools are a hybrid form that share important features with traditional public schools and other equally important features with private schools. Like public schools, charter schools are state-funded. They generally receive all or most of the per-pupil funding that would otherwise be received by traditional public schools, and may not charge tuition. Like private schools, charter schools are privately run and managed. They are often organized to focus on particular, even idiosyncratic, subject-matters (like art or STEM), cultural perspectives, or pedagogical approaches (such as inquiry-based learning or language immersion). This sort of particularism, which would be out of place in traditional public schools, is justified by the rule that no child is forced to attend; charter schools enroll only students whose parents choose to apply.

The regulatory environment for charter schools is likewise hybrid. Charter schools are relieved substantially, but far from completely, from the comprehensive regulatory regimes that govern traditional public schools with respect to issues like curriculum, length of the school day and year, and teacher qualifications. They are subject to regulations that affect all schools, both public and private, with respect to issues like subjects to be taught, health, and safety. In addition, state law establishes a vector of requirements that charter schools specifically must meet. They must be open to all without discrimination. Nearly universally, they must admit students by lottery when oversubscribed. And they cannot be religious.

Until Oklahoma granted its recent charter, most of the controversy over “religious” charter schools involved schools that are formally secular. Modeling themselves after charter schools with a cultural focus, such schools neither sponsor worship nor teach religious principles. Instead, they organize themselves around cultural practices associated with religious groups, such as holiday celebrations, foodways, and languages with religious significance, like Latin, Hebrew, or Arabic. Such schools also often accommodate the religious practice of a particular group, without endorsing or teaching it, and without giving any formal admissions preferences to the faithful. These schools try to approach the limits of the no-religion requirement as closely as possible without crossing them. 

The Oklahoma charter, however, changed the game. The school that received a charter is unambiguously Catholic, comprehensively and unapologetically sectarian. Its chartering therefore posed a direct challenge to the constitutionality of excluding religious schools from the charter school system.

In the past few years, the argument against exclusion has become much stronger. In Carson v. Makin, the U.S. Supreme Court rejected, as a matter of federal constitutional law, a Maine statute that allowed the state to pay private schools, chosen by individual families, to educate students who had no public school in their neighborhoods. Maine’s program, however, disqualified religious schools from receiving such payments. The high court said that this was an anti-religious preference forbidden by the federal First Amendment. Carson directly invites a question: Why should charter schools, which likewise receive public money when families choose them for their children, be any different?

The Oklahoma Court’s response is that that charters must be withheld from religious schools because charters are public, not private, schools. For 60 years, the court points out, U.S. Supreme Court precedent has established that public schools cannot be religious. This principle was even reaffirmed by dictum in Carson itself. State constitutional provisions prohibiting the establishment of religion and financial transfers to religious institutions provide further state-law support for the same conclusion. Therefore, the court said, charter schools cannot be religious, cannot receive state aid, and cannot act on behalf of the state.

This move adopts an ascriptive rather than descriptive view of how charter schools work and how they interact with constitutional law. The court reasons that charter schools cannot be religious because the legislature has declared them to be public schools. Because of this declaration, a school, once chartered, is a public, state actor. And state actors cannot be religious, under either the federal or the Oklahoma Constitution.

This is not how constitutional law is supposed to work. A state cannot avoid a federal constitutional rule like Carson’s simply by declaring that it does not apply. Whether a state can bar access by religious schools to a program that gives grants to other kinds of private schools does not depend on whether the state calls the program one only for public schools. What matters is whether it is a program restricted to public schools. The Oklahoma court should have asked this question, but did not.

Certainly, as public constraints on a privately managed school grow, and its private freedom of action is increasingly constricted, a private school can become, de facto, a public school, and therefore a state actor. But this is a fact-specific inquiry, one that the Oklahoma Supreme Court did not undertake. A school is a de facto state actor if the legislature regulates it as one, not simply because the legislature has declared it to be one.

Indeed, it is difficult materially to distinguish the charter schools of Oklahoma (or other states) from the private schools of Maine, which Carson insisted could not be limited to secular institutions. Both sets of schools are privately run — unlike the standard public school, which is state-owned, managed by elected officials, and employs staff on the public payroll. Both sets of schools are subject to public regulation — as, of course, are all private schools. The educational programs in both sets of schools, by design, reflect private priorities, even as they are constrained by public regulation.

I therefore see no way not to endorse Justice Dana Kuehn’s frustration, in dissent, that the majority’s reasoning is entirely “circular” and “places form over substance.”

So what is next? Although the Oklahoma justices go out of their way to characterize their holding as one based upon adequate and independent state grounds, petitioners could argue — correctly, in my opinion — that the decision’s understanding of the Oklahoma constitution is inconsistent with the First Amendment. The U.S. Supreme Court therefore could agree to review the case. But the federal justices are unlikely to do so. The case involves the application of Carson, and it would be rare for the Court to agree to hear a dispute over how to apply a precedent decided only two years ago. The Court also avoids hearing cases absent a direct split among the state and the circuits. 

Moreover, the Court generally avoids cases whose facts are likely to be complicated by additional action by political and bureaucratic actors. Such complications are very likely here. Conservative politics is focused as never before on undermining secular hegemony in public schooling. This is true especially, though by no means exclusively, in states with one-party, Republican government. Oklahoma is nipping at the heels of Louisiana in taking high-profile actions to reintroduce religion into traditional public schools. The Oklahoma Supreme Court’s decision about charter schools, along with another recent decision about public-school libraries, will surely tempt legislatures and governors to intervene. In the charter school area, one obvious move would be for a legislature, in Oklahoma or elsewhere, to reverse its ascriptive characterization of charter schools as “public” schools, and invite its state supreme court to chew on that.

Aaron Saiger is a professor at Fordham University School of Law.

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