Religious Charter Schools: The Time Has Come

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On December 1, 2022, then-Oklahoma Attorney General John M. O’Connor issued an Opinion declaring that Oklahoma’s ban on “sectarian” charter schools was likely unconstitutional.¹ After surveying recent Supreme Court case law, Attorney General O’Connor concluded that “the non-sectarian and non-religious requirements found in 70 O.S. § 3-136(A)(2) of the Oklahoma Charter Schools Act likely violate the First Amendment to the U.S. Constitution and therefore should not be enforced.”² This Opinion wasn’t issued in a vacuum. First, the school choice and parents’ rights movement of the last thirty years has put tremendous pressure on states to expand the options available to parents to educate their kids—including charter schools.³ Second, three recent Supreme Court decisions have fundamentally altered the landscape between the state and private religious schools. From one perspective, these recent decisions represent “[t]he Supreme Court . . . slowly and steadily bust[ing] a hole in the wall between church and state when it comes to education.”⁴ But from a different perspective, the idea that the government cannot overtly discriminate against religion in any matter, including education, is an “unremarkable” conclusion “in light of [the Court’s] prior decisions.”⁵

This short Article addresses whether states that authorize charter schools must approve religious charter schools. Part I provides a brief overview of charter schools. Part II summarizes the recent Supreme Court decisions that provide the legal framework for addressing the question. Part III applies those decisions to religious charter schools and concludes that states must approve religious charter schools.

According to the National Alliance for Public Charter Schools, “[c]harter schools are independently-operated public schools that have the freedom to design classrooms that meet their students’ needs.”⁶ Through a “charter”—or contract—with a governmental agency, private entities are given authority to operate a “public” school and are held accountable to the standards agreed to in the charter.⁷ If a charter school fails to meet the standards or otherwise reports educational outcomes that do not satisfy the governmental agency, the agency can revoke the charter.⁸ Charter schools are tuition-free and open to anyone who wishes to attend.⁹ Ultimately, charter schools exist “to provide a range of options so that parents can choose the public school that best fits their child.”¹⁰

But the label “public school” is misleading. According to prominent law professor and charter school expert Nicole Stelle Garnett, charter schools are “privately operated” and given substantial “autonomy over staffing, curriculum, budget, internal organization, and many other matters.”¹¹ Typically, charter schools are operated by non-profit corporations, but some states also allow for-profit corporations to operate charter schools.¹² And critically, charter schools “are schools of choice”—meaning that attendance at charter schools is driven solely by the free choice of parents—not the coercive power of the state.¹³ Once a parent chooses to send their child to a charter school, the funding “follows the child to that specific school.”¹⁴

Some charter schools are organized around an educational philosophy. For example, Temecula Preparatory School (“TPS”), a standalone non-profit corporation registered with the state of California, was founded in 2000 “on the belief that a classical education is best suited for preparing students not only for college and career, but for preparing students to live a life with meaning and purpose.”¹⁵ The instruction centers around a liberal arts curriculum with a “character education program based on the Platonic Virtues—Justice, Prudence, Temperance, and Fortitude.”¹⁶ Similarly, Charter Day School, Inc. (“CDS”), a non-profit entity that operates four charter schools in North Carolina,¹⁷ offers an education that focuses on “traditional values” that “pervade many areas of the school’s practices.”¹⁸ CDS utilizes “a classical curriculum espousing the values of traditional western civilization and founded on the belief that one must be able to communicate one’s ideas clearly and understand the communications of others.”¹⁹ CDS uses the “direct instruction”²⁰ method of teaching and implements “structured, orderly classrooms in which instructional time is maximized, and disruptions are held to a spare minimum.”²¹ To reinforce its traditional approach, the school imposes a dress code.²²

Rather than organize around an educational philosophy like TPS or CDS, other charter schools exist to close the education gap and improve learning outcomes for low-income students. This is the primary mission of most of New York City’s 275 charter schools²³—and they are having remarkable success.²⁴ With incredible academic success and unique educational philosophies, charter schools have become extremely popular, resulting in huge waitlists to get in. In New York City alone, as of a few years ago, there were over 160,000 students—mostly black and Hispanic—on waiting lists for charter schools,²⁵ with similar waiting lists around the country.²⁶

Beyond having specific missions, charter schools have different management structures. About sixty-five percent of charter schools manage and operate themselves autonomously, like TPS.²⁷ In other words, most charter schools are non-profit entities that run and manage their own school. The remaining thirty-five percent contract with “education management organizations” (EMOs) or “charter management organizations” (CMOs) for management-related services.²⁸ CMOs are non-profit corporations that typically manage multiple schools across jurisdictions; EMOs are for-profit entities that do the same thing.²⁹ CDS is an example of a non-profit entity that contracts with an EMO, Roger Bacon Academy, Inc., to run “the day-to-day operations of CDS, including hiring school personnel and carrying out the school’s education program.”³⁰

Overall, while charter schools may have different educational philosophies and management structures, they all share a few things in common: they are private entities—mostly non-profit corporations—that provide tuition-free education through a contract with a governmental agency (or its designee) to anyone who wants to attend, assuming there is space.

Until recently, the idea of a religious charter school wasn’t even on the table.³¹ Indeed, laws in every state where charter schools are authorized require that they be secular.³² While no religious charter schools in the nation currently teach “‘religion as the truth of the matter,’”³³ Oklahoma is considering whether to approve the first. Following the Attorney General’s Opinion, St. Isidore of Seville Catholic Virtual School applied to the Oklahoma Statewide Virtual Charter School Board to run a virtual school “for kindergarten through high school, enrolling up to 500 students in 2024 and eventually expanding to 1,500 students.”³⁴ St. Isidore intentionally chose not to organize as a private school because tuition costs would be prohibitive for the poor, rural families they are targeting.³⁵ On April 11, 2023, the Board voted unanimously to turn down the proposal.³⁶ The reasons for the decision related to “questions over the school’s governance structure, its plan for special education students, and its ability to prevent commingling of private and public funds, among other logistical concerns.”³⁷ The Archdiocese of Oklahoma City can resubmit its application addressing the Board’s questions, which will then trigger a thirty-day timeframe for the Board to act.³⁸

Whether St. Isidore ever officially opens is anyone’s guess, particularly given the certainty of litigation and the conflicting guidance from the Oklahoma Attorney General’s office. As mentioned, on December 1, 2022, then-Oklahoma Attorney General John M. O’Connor issued an Opinion declaring that Oklahoma’s ban on “sectarian” charter schools was likely unconstitutional.³⁹ But in February 2023, the current Oklahoma Attorney General, Gentner Drummond, withdrew O’Connor’s Opinion in a letter addressed to the Statewide Virtual Charter School Board.⁴⁰ Drummond argued that recent Supreme Court case law did not control the question of the constitutionality of religious charter schools because those decisions involved “private schools,” not charter schools.⁴¹ According to Drummond, charter schools are “public schools established by contract,” and whether charter schools are state or private actors is an unsettled question pending before the Supreme Court.⁴² Without a definitive ruling from the Supreme Court on that question, Drummond was “not currently comfortable advising” the Virtual Charter School Board to violate Oklahoma’s constitutional and legislative prohibition on funding religious education.⁴³ Drummond went further, though, arguing that O’Connor’s Opinion “misuses the concept of religious liberty by employing it as a means to justify state-funded religion.”⁴⁴ Without the backing of the Attorney General, board members reported feeling pressure to deny the application.

Beginning in 2017 and progressing over the next five years, the United States Supreme Court issued three opinions that reshaped the legal landscape in terms of public funding and religious education. These opinions provide the framework for addressing the constitutionality of religious charter schools, specifically regarding whether the Free Exercise Clause mandates this result and whether the Establishment Clause prevents it.

Trinity Lutheran Church of Columbia, Inc. v. Comer, decided in 2017, involved a Missouri Department of Natural Resources policy—derived from a provision of the Missouri Constitution—that barred churches, sects, or other religious entities from receiving grants to aid in their purchase of rubber playground surfaces made from recycled tires.⁴⁵ After the Department denied a grant to the Trinity Lutheran Church Child Learning Center solely because of its religious status, Trinity Lutheran filed suit alleging a violation of the Free Exercise Clause.⁴⁶ Summarizing its jurisprudence, the Court noted that it has “repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”⁴⁷ The Court held that the policy violated the First Amendment because it “require[d] Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program.”⁴⁸ Applying strict scrutiny, the Court struck down the policy, finding that Missouri’s alleged interest in avoiding hypothetical Establishment Clause violations was not compelling.⁴⁹

A few years later, in Espinoza v. Montana Department of Revenue, the Supreme Court took Trinity Lutheran one step further, striking down a ruling of a state supreme court interpreting its own constitution and holding that states cannot bar religious organizations from participating in public benefit programs on account of their religious identity and practice.⁵⁰ At issue in Espinoza was a Montana Department of Revenue rule that excluded religiously-affiliated private schools from participating in a state scholarship program.⁵¹ Montana created a scholarship program that gave tax credits to anyone who sponsored a scholarship for a child’s tuition at a private school chosen by the child’s parents.⁵² Based on Montana’s constitutional prohibition on providing government aid to any “sectarian” school, the Montana Department of Revenue issued a rule that prohibited families from using these scholarships at religious schools.⁵³ A mother whose children attended a private Christian school received a scholarship but was prevented from using the funds at the Christian school; she then filed suit challenging the rule.⁵⁴ Eventually, the Montana Supreme Court invalidated the entire program because the statutory language creating the program obligated that religious schools be included, and this was something that the Montana Constitution would not tolerate.⁵⁵

Building from Trinity Lutheran, the Supreme Court reversed the Montana Supreme Court, holding that “Montana’s no-aid provision [impermissibly] bars religious schools from public benefits solely because of the religious character of the schools.”⁵⁶ The Court noted that while no state is compelled to subsidize private education, states that choose to do so “cannot disqualify some private schools solely because they are religious.”⁵⁷ Because Montana expressly barred religious schools, it violated the Free Exercise Clause. The Court emphasized that the Establishment Clause was no impediment to this result because the government support of religious schools came through “Montanans independently choosing to spend their scholarships at such schools.”⁵⁸

The final step came in 2022. In Carson v. Makin, the Supreme Court struck down a Maine program that provided tuition assistance to parents because the program barred religious schools from participation.⁵⁹ Maine law obligates the legislature to provide an education to every child.⁶⁰ But because of Maine’s rural nature, fewer than half of Maine’s districts operate a secondary school of their own.⁶¹ To remedy the problem, the legislature created a tuition assistance program for parents.⁶² Under that program, parents that reside in a district without a traditional public secondary school may select a private school of their choice, and once the selection is made, the school district must pay the tuition directly to the chosen school.⁶³ Beginning in 1981, the Maine legislature barred “sectarian” schools from participating.⁶⁴ The law was based on an opinion from the Maine Attorney General that any public funding of religious schools violated the Establishment Clause.⁶⁵

Applying Trinity Lutheran and Espinoza, the Court struck down the Maine rule. Because Maine chose to offer a public benefit to its citizens, it could not exclude religious schools “solely because of their religious character.”⁶⁶ In doing so, Maine “effectively penalize[d]” religious schools and parents from freely exercising their religion.⁶⁷ The Court again reiterated that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”⁶⁸ Moreover, noted the Court, separating “church and state” beyond the degree required in the Federal Constitution never qualifies as a compelling interest “in the face of the infringement of free exercise.”⁶⁹

With these three precedents cemented in place, the question is how they apply to religious charter schools. May states continue to ban religious organizations from applying for charters? The current Oklahoma Attorney General argued that they can because charter schools are essentially sui generis, distinct entities from private schools, and therefore this triumvirate of precedent has little application to the question at hand. Others disagree. Justice Breyer, dissenting in Espinoza, seems to have seen the proverbial writing on the wall even before Makin. He asked, “What about charter schools? . . . How would the majority’s rule distinguish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private religious schools?”⁷⁰ Commentators also made the case that Espinoza would likely obligate at least some states to grant charters to religious institutions.⁷¹ After Makin, the case is clear: the current Oklahoma Attorney General is wrong—states must fund religious charter schools.

The argument is quite simple. While states are not obligated to authorize and fund privately owned and operated charter schools, once they do so, they “cannot disqualify some [charter] schools solely because they are religious.”⁷² But that is exactly what every state does—including Oklahoma. And that “disqualification” puts religious charter schools “to [an unconstitutional] choice: [they] may participate in an otherwise available benefit program or remain a religious institution.”⁷³ Charter schools have popped up all over the country because state legislatures have chosen to create alternative forms of education—a public benefit—for a myriad of reasons, including improving learning outcomes and providing educational alternatives to parents. To exclude religious charter schools solely because they are religious violates the clear principle that undergirds Trinity Lutheran, Espinoza, and Makin. In each of those cases, a state chose to create a public benefit program relating to education and attempted to exclude religious entities because they were religious. The triumvirate says this is not permissible. Accordingly, states cannot authorize secular charter schools without authorizing religious charter schools. To do so would “effectively penalize[]” religious schools and parents from freely exercising their religion.⁷⁴ A more in-depth analysis confirms this simple answer.

Defining the precise public benefit at issue is critical in determining whether states must approve religious charter schools. In Trinity Lutheran, Espinoza, and Makin, the Supreme Court analyzed the public benefit that the state provided to determine whether religious organizations were excluded from receiving that same benefit. This issue was particularly significant in Makin because the First Circuit’s framing of the benefit led it to conclude that Maine did not violate the Free Exercise Clause in denying religious schools participation in Maine’s tuition assistance program.⁷⁵ The First Circuit held that the public benefit at issue in Makin was obtaining the “rough equivalent” of a secular, public education.⁷⁶ Because religious schools do not provide this type of education, they were, according to the First Circuit, not discriminated against.⁷⁷

The Supreme Court soundly rejected this argument. The Court held that the benefit—based on the terms of the statute and operation of the program—was obtaining a public or private education.⁷⁸ And those two things—under Maine Law—were not the same thing. Under Maine law, private schools are distinct from public schools. Private schools are exempted from many of the requirements that govern public schools, including admissions, charging tuition, curriculum, teacher certifications, and other matters.⁷⁹ And while Maine allowed tuition assistance payments for secular private schools, it expressly denied tuition assistance payments for private religious schools.⁸⁰ Although Maine tried to reframe the benefit as providing children the equivalent of a public, secular education, the Court held that this was mere “manipulation” of the public benefit Maine had chosen to offer. To allow states to redefine the nature of the public benefit such that religious organizations were expressly or practically excluded would “reduce[]” the First Amendment “to a simple semantic exercise.”⁸¹

Accordingly, the key question is whether the benefit states are providing in authorizing charter schools is providing the equivalent of a truly “public education”—as the First Circuit argued in Makin and the current Oklahoma Attorney General implicitly argued in his Letter—or the opportunity for private entities to educate children with state funds through a charter. If the benefit is providing a public education, then religious charter schools are not “otherwise eligible” to obtain the benefit because religious charter schools cannot provide that benefit.⁸² However, if the public benefit is the opportunity for private entities to educate children with state funds through a charter and for parents to have educational choices, then states must approve religious charter schools.

While the answer may vary state by state,⁸³ the answer is that the public benefit at issue is the opportunity for private entities to educate children with state funding. In other words, charter schools are not state entities providing a “public” education; they are private entities that receive state funding to educate children that parents choose to enroll in their school. To be clear, whether charter schools are public schools, i.e., “state actors,”⁸⁴ is a complex question, the full treatment of which is outside the scope of this short Article. Also, the Supreme Court is considering the issue right now, with the Court recently asking the Biden administration to provide input.⁸⁵ If the Court does take the case, it will resolve the issue of whether charter schools are state actors, at least for the state of North Carolina.

Nonetheless, the short and best answer is that charter schools are private actors that educate children through a contract with the state. The Supreme Court analyzes several factors to determine whether a private entity’s actions can be found to be “state action” for purposes of the Fourteenth Amendment.⁸⁶ All factors lead to the conclusion that charter schools are not state actors. First, most charter schools are controlled and operated by private entities, not state entities. Therefore, courts should start with the presumption that charter schools are not offering a “public” education.⁸⁷ Second, the fact that all states by law label charter schools as “public schools” is immaterial.⁸⁸ Makin made clear that if what a state called a program was dispositive then Montana (in Espinoza) could have simply amended its law to state that tax credits for sponsors were only available “‘to tuition payments for the rough equivalent of a Montana public education’—meaning a secular education.”⁸⁹ But according to the Court, the “substance of Free Exercise protections” demands that courts look beyond the “presence or absence of magic words” and instead analyze the actual public benefit at issue to determine whether, by word or deed, religious organizations are impermissibly excluded.⁹⁰ According to Makin, Espinoza—and the First Amendment itself—are not paper tigers that cower to easily manipulated state labels. What matters is the actual benefit states choose to provide—not what a state labels the benefit. Accordingly, the fact that states label charter schools “public” makes no difference.

Third, the mere fact that charter schools are created by governmental action, are heavily regulated by the government, and receive substantial state funding does not make them state entities offering a public education.⁹¹ Indeed, every non-profit entity is created by government action, so state creation or authorization is irrelevant.⁹² Moreover, contracting with the government and receiving substantial state funding does not transform a private entity’s action into state action. As the Supreme Court held in Rendell-Baker v. Kohn, “Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”⁹³ And even where state regulation of a private entity is “extensive and detailed,”⁹⁴ a private entity’s actions do not become “fairly attribut[ed] to the state” unless the state compels or directs the specific action being challenged.⁹⁵ As a general matter, charter schools do not operate under the direction or control of the state. On the contrary, charter schools, as private entities, manage their schools apart from state control, and while they are held accountable for fulfilling their charter, how they do so is completely up to them. More importantly, in the specific policies being challenged in the religious charter school question—namely curriculum and personnel—charter schools have almost complete independence. Therefore, it can hardly be said that the state is compelling or even influencing the challenged actions.

Relatedly, charter schools offer a completely different education than a typical public school. In Makin, the Supreme Court analyzed the differences between private and public education under Maine law and concluded that they were two distinct things because of the differences in curriculum, admissions policies, teacher requirements, etc.⁹⁶ Because of these differences—and the fact that Maine was funding secular private education—the Court concluded that it was impossible to say that the benefit Maine was providing was the equivalent of a “public education.” Just like private schools in Makin, charter schools “are privately operated and have wide-ranging autonomy over staffing, curriculum, mission, budget, and internal organization.”⁹⁷ Indeed, education at charter schools often looks fundamentally different than a typical education at a public school. With “blanket waivers from many education regulations,”⁹⁸ “it is simply not the case that [charter] schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the [typical] public schools.”⁹⁹

Fifth, state action is generally only found when the public function at issue—here education—is “traditionally the exclusive prerogative of the State.”¹⁰⁰ Education can hardly be described as an activity that is in the exclusive domain of the state.¹⁰¹ Parents, not the state, possess the primary educational right in the United States, and private education has existed for the entire history of the nation.¹⁰² Indeed, “public” education as we know it did not begin until the mid-nineteenth century,¹⁰³ and with over three million homeschooled students—or roughly 6% of school-age children—in 2021–2022, it can hardly be said that education belongs exclusively to the government.¹⁰⁴

In short, charter schools are not state actors offering a public education; they are private actors that educate children through a government contract. Stated differently, the public benefit at issue in the religious charter school debate is the opportunity for private organizations to educate students through a contract with the state. Therefore, based on the principles set forth in Trinity Lutheran, Espinoza, and Makin, states must fund religious charter schools. Through charter school legislation, states have offered private entities and parents a public benefit—and they cannot constitutionally exclude religious charter schools solely because of their religious status.

On the flip side, while the Free Exercise Clause compels states to fund religious charter schools, the Establishment Clause in no way prevents that result.¹⁰⁵ In Espinoza and Makin, the Court made abundantly clear that where state funds flow to private organizations because of the free choices of parents, Establishment Clause concerns dissipate like mist in the air.¹⁰⁶ As the Court held in Espinoza, “Any Establishment Clause objection to the scholarship program here is particularly unavailing because the government support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.”¹⁰⁷ Makin was just as explicit: “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”¹⁰⁸

In the charter school context, no parent is forced to send their children to a charter school; they are schools of pure choice. As a result, charter schools generally receive funding “on a per-pupil basis,” meaning state funding is only granted if and when parents choose to enroll their children in a charter school.¹⁰⁹ Accordingly, states cannot hide behind the Establishment Clause in refusing to authorize religious charter schools. On the contrary, when states attempt to ban religious charter schools, they are unconstitutionally “bar[ring] parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”¹¹⁰ The end of the matter, then, is simple: if states offer parents the opportunity to send their children to secular charter schools, they must give them the choice to send their children to religious charter schools.

A final and related reason why the Establishment Clause does not prevent religious charter schools is that the direct versus indirect funding distinction was effectively killed by Trinity Lutheran, Espinoza, and Makin. Before the triumvirate, the Court’s Establishment Clause jurisprudence generally distinguished between direct and indirect funding of religious education.¹¹¹ Where states sent funds directly to a religious school, an Establishment Clause violation occurred.¹¹² If, however, government funds reached religious schools because of the independent choices of private individuals, i.e., indirectly, the Establishment Clause was not offended.¹¹³ This was exactly the Court’s holding in Zelmans v. Simmons-Harris, where the Court upheld Ohio’s school voucher program against an Establishment Clause challenge because the program was one of “true private choice,” i.e., a program where government aid reaches private organizations solely because of the independent choices of private citizens.¹¹²

There are two reasons that this doctrine does not prevent states from authorizing religious charter schools. First, as just discussed in the previous Section, charter schools are programs of “true private choice” and therefore fall in the indirect category. But more critically, even if charter schools are somehow not programs of private choice, the direct versus indirection question is no longer central to the Court’s Establishment Clause jurisprudence—if it still exists at all. Espinoza made clear that neutrality was the ultimate question when a state offered a public benefit: “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”¹¹⁵ To support this proposition, the Court cited, among other cases, Trinity Lutheran, where a government benefit—state grants for obtaining rubber playground surfaces—was given directly to a religious school.¹¹⁶ If neutrality is ultimately what matters, distinguishing between direct and indirect funding does not matter at all; it is irrelevant to the analysis. Later in Espinoza, the Court reiterated that states are not obligated to “subsidize private education,” but if they do so, they “cannot disqualify some private schools solely because they are religious.”¹¹⁷ Again, the Court’s focus was on neutrality in the subsidy—not whether the subsidy comes directly or indirectly.

Makin confirms that the direct versus indirect distinction is no longer relevant. In Makin, just as in Espinoza, the Court focused exclusively on ensuring government neutrality in public benefit programs:

Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.”¹¹⁸

In other words, the nature of the benefit and how it reaches private organizations makes no difference; all that matters is that when a state chooses to offer a public benefit, it must treat religious schools the same as secular schools. Admittedly, both Espinoza and Makin noted that the programs at issue were programs of private choice—and they both cited Zelmans.¹¹⁹ But this does not mean that the direct versus indirect distinction is still significant. On the contrary, “[a] State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”¹²⁰ In other words, the test from the triumvirate—government neutrality towards religious organizations in all public benefits programs—applies whether the benefit comes directly or indirectly.¹²¹ Therefore, the Establishment Clause is no impediment to religious charter schools.

While Oklahoma is the first state to wade into the debate over religious charter schools, it will not be the last. The issue will be litigated for years, even if the Supreme Court decides to hear Peltier. But based on the Court’s recent cases, the outcome is already clear: the Free Exercise Clause mandates that states fund religious charter schools.¹²² Although some criticize this outcome as state-sponsored indoctrination “in conservative religious and political ideology,” nothing could be further from the truth.¹²³ Educational indoctrination—at least the type that is unconstitutional¹²⁴—only occurs when it is forced upon children without parental consent. Contrary to what the critics claim, state-sponsored indoctrination is occurring in traditional public schools—not charter schools. In public schools across the nation, the government is indoctrinating children in gender identity and other leftwing ideologies—all without parental choice or consent.¹²⁵ Charter schools, on the other hand, cannot indoctrinate anyone because no one is forced to attend charter schools. Charter schools are schools of choice, so only parents who want their children “indoctrinated in religious ideology” will send their children to these schools. Is it really so wrong that the state would facilitate children receiving an education that parents actually want? Of course not, unless the opposition to religious charter schools isn’t really about religion—but about who controls what children are taught. The time for religious charter schools has come.

^*S. Ernie Walton, Assistant Professor, Regent University School of Law; J.D., Regent University School of Law; B.S., Houghton College.

^**The Author would like to thank Professor Nicole Stelle Garnett and Christian Edmonds for their helpful comments.

¹Attorney General John M. O’Connor, Attorney General Opinion No. 2022-7 (Dec. 1, 2022) [hereinafter O’Connor Opinion]. Under Oklahoma Statute 70 O.S. § 3-136(A)(2), Charter Schools cannot be “affiliated with a nonpublic sectarian school or religious institution” and must “be nonsectarian in its programs, admissions policies, employment practices, and all other operations.” 70 O.S. 2021, s. 3-136(A)(2).

²O’Connor Opinion, supra note 1, at 15.

³See Nicolle Stelle Garnett, Sector Agnosticism and the Coming Transformation of Education Law, 70 Vand. L. Rev. 1, 9–21 (2017) (discussing the “parental choice revolution” and the growth of charter schools, voucher programs, and other means by which states have expanded options for parents to educate children).

⁴Peter Greene, Oklahoma AG Declares Taxpayer-Funded Religious Charter Schools Legal, Forbes (Dec. 2, 2022), https://www.forbes.com/sites/petergreene/2022/12/02/oklahoma-ag-declares-taxpayer-funded-religious-charter-schools-legal/?sh=5e54fb8b2c75; see also Americans United for Separation of Church and State, Americans United Urges Oklahoma Charter School Board To Disregard Former AG’s Incorrect Opinion On Religious Public Charter Schools (Jan. 31, 2023), https://www.au.org/the-latest/press/oklahoma-religious-public-charter-schools/# (“Americans United for Separation of Church and State is urging the Oklahoma Statewide Virtual Charter School Board to disregard an incorrect opinion issued by former Oklahoma Attorney General John O’Connor that would allow public charter schools to indoctrinate their students in religion – in violation of the separation of church and state.”).

⁵Trinity Lutheran Church of Columbia v. Comer, 582 U.S. 449, 462 (2017).

⁶What Is a Charter School?, Nat’l All. for Pub. Charter Schs., https://www.publiccharters.org/about-charter-schools/what-charter-school (last visited Apr. 19, 2023).

⁷Id.

⁸Thomas Sowell, Charter Schools and Their Enemies 1 (2020).

⁹Nicole Stelle Garnett, Religious Charter Schools: Legally Permissible? Constitutionally Required?, Manhattan Institute 13 (2020), available at https://media4.manhattan-institute.org/sites/default/files/religious-charter-schools-legally-permissible-NSG.pdf [hereinafter Religious Charter Schools].

¹⁰What Is a Charter School?, supra note 6.

¹¹Religious Charter Schools, supra note 9, at 13.

¹²Id.

¹³Id. at 14.

¹⁴Id.

¹⁵Who We Are, Temecula Preparatory Sch., https://www.temeculaprep.com/about/message-from-the-head-of-school/ (last visited Apr. 19, 2023).

¹⁶Id.

¹⁷Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 112 n.1 (4th Cir. 2022) (en banc).

¹⁸Id. at 113.

¹⁹Philosophy, Charter Day Sch., https://charterdayschool.net/philosophy/our-curriculum/ (last visited Apr. 19, 2023).

²⁰“Direct Instruction is a research-based instructional approach emphasizing the use of intensive, small group instruction by teachers and aides, using carefully designed lessons in which cognitive skills are broken down into small units.” The Roger Bacon Academy, Classical Charter Sch., https://ccsam.net/the-roger-bacon-academy/ (last visited Apr. 19, 2023).

²¹Id.

²²Peltier, 37 F.4th at 113. The dress code is the center of the controversy in the case pending before the Supreme Court. Petition for Writ of Certiorari, Charter Day Sch. v. Peltier (No. 22-238) (2022). According to the school’s policy, boys are permitted to wear pants or shorts, but girls must wear skirts, jumpers, or skorts. Peltier, 37 F.4th at 113.

²³N.Y. City Charter Sch. Ctr., https://nyccharterschools.org/ (last visited Apr. 19, 2023).

²⁴See S. Ernie Walton, Gender Identity Ideology: The Totalitarian, Unconstitutional Takeover of America’s Public Schools, 34 Regent U. L. Rev. 219, 265–67 (2022).

²⁵Bob Luddy, Thomas Sowell on Charter Schools: Education for Students, Not Unions, Am. Spectator (July 14, 2020), https://spectator.org/thomas-sowell-charter-schools-and-their-enemies-book-review-90th-birthday/.

²⁶E.g., Leah Byers, The School Choice Waiting List Crisis, Civitas Inst. (Jan. 24, 2019), https://www.nccivitas.org/2019/school-choice-waiting-list-crisis/; Cynthia McCormick, Hundreds of Students on Waitlists at Cape Charter Schools, Cape Cod Times (Mar. 13, 2016) https://www.capecodtimes.com/article/20160313/NEWS/160319807.

²⁷Jamison White & Yueting “Cynthia” Xu, How Are Charter Schools Managed, Nat’l All. For Pub. Charter Sch.’s (Dec. 6, 2022), https://data.publiccharters.org/digest/charter-school-data-digest/who-manages-charter-schools/.

²⁸Id.

²⁹Id.; see also Religious Charter Schools, supra note 9, at 13.

³⁰Peltier, 37 F.4th at 113.

³¹Religious Charter Schools, supra note 9, at 7–8.

³²Id. at 6–7. Federal law also requires—as a condition of receiving funding—that charter schools be secular. 20 U.S.C. § 7221i(2)(E).

³³John Kruzel, Oklahoma Eyes First US Religious Charter School After Supreme Court Rulings, US News & World Rep. (Apr. 6, 2023), https://www.usnews.com/news/us/articles/2023-04-06/oklahoma-eyes-first-us-religious-charter-school-after-supreme-court-rulings; see also Religious Charter Schools, supra note 9, at 7–8 (“However, all charter schools are legally prohibited from teaching the tenets of any religion as the truth”). While there are currently no religious charter schools that teach religion as truth, some states allow religious organizations to operate charter schools as long as the education is completely secular. Id. at 5.

³⁴Kruzel, supra note 33.

³⁵Id.

³⁶Nuria Martinez-Keel, Oklahoma Board Votes Down Catholic Charter School But the Process Isn’t Over Yet, Yahoo (Apr. 11, 2023), https://www.yahoo.com/lifestyle/oklahoma-board-votes-down-catholic-225737843.html?guccounter=1&guce_referrer=aHR0cHM6Ly9kdWNrZHVja2dvLmNvbS8&guce_referrer_sig=AQAAAL03s6pts8675nJ1BqJiKhaEquYXgM0wOoVbtJV4yFj2zHC8uYaPLpU6c294Hg6oQmziUC3ujy-F-DoYpuL3-oSt1CUGc4YIjwpvaBKoPe780vGL-AI5C8LYw_JvxHdUTh3QB94lGAsuKY83WFXCzZDZOqiw7xdBmmjMYxRBimAd.

³⁷Id.

³⁸Id. The Archdiocese resubmitted a revised plan which the Board approved on June 5, 2023, making St. Isidore’s the nation’s first publicly-approved religious charter school. Sara Randazzo, Nation’s First Religious Charter School Approved in Oklahoma, Wall Street Journal (June 5, 2023, 7:06 PM), https://www.wsj.com/articles/nations-first-religious-charter-school-approved-in-oklahoma-bb028e7b?mod=latest_headlines.

³⁹O’Connor Opinion, supra note 1.

⁴⁰Letter from Attorney General Gentner Drummond to Rebecca L. Wilkinson, Executive Director, Statewide Virtual Charter School Board 1–2 (Feb. 23, 2023), available at https://www.oag.ok.gov/sites/g/files/gmc766/f/documents/2023/rebecca_wilkinson_ag_opinion_2022-7_virtual_charter_schools.pdf [hereinafter Drummond Letter].

⁴¹Id.

⁴²Id. (citing Peltier v. Charter Day Sch., 37 F.4th 104 (4th Cir. 2022), petition for cert filed (Sept. 14, 2022) (No. 22-238)). The Biden Administration recently weighed-in and asked the Court to deny review of the Peltier case. See Mark Walsh, Biden Administration Urges High Court to Reject Case on Legal Status of Charter Schools, Educ. Week (May 23, 2023), https://www.edweek.org/policy-politics/biden-administration-urges-high-court-to-reject-case-on-legal-status-of-charter-schools/2023/05.

⁴³Drummond Letter, supra note 40.

⁴⁴Kruzel, supra note 33.

⁴⁵582 U.S. at 453. The policy derived from Article 1, Section 7 of the Missouri Constitution, which states: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” Mo. Const., art. 1, § 7.

⁴⁶Trinity Lutheran, 582 U.S. at 456.

⁴⁷Id. at 458 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).

⁴⁸Trinity Lutheran, 582 U.S. at 466.

⁴⁹Id.

⁵⁰Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).

⁵¹Id. at 2251–52.

⁵²Id. at 2251.

⁵³Id. at 2252.

⁵⁴Id.

⁵⁵Id. at 2253–54.

⁵⁶Id. at 2255.

⁵⁷Id. at 2261.

⁵⁸Id. at 2254.

⁵⁹Carson v. Makin, 142 S. Ct. 1987, 1993 (2022).

⁶⁰Id.

⁶¹Id.

⁶²Id.

⁶³Id.

⁶⁴Id. at 1994.

⁶⁵Id.

⁶⁶Id. at 1997 (quoting Trinity Lutheran, 582 U.S. at 462).

⁶⁷Id. (quoting Trinity Lutheran, 582 U.S. at 462).

⁶⁸Id.

⁶⁹Id. at 1998 (quoting Espinoza, 140 S. Ct. at 2260 (quoting Trinity Lutheran, 582 U.S. at 466)).

⁷⁰Espinoza, 140 S. Ct. at 2291 (Breyer, J., dissenting) (internal citations omitted).

⁷¹See, e.g., Religious Charter Schools, supra note 9, at 11–13.

⁷²Espinoza, 140 S. Ct. at 2261.

⁷³Trinity Lutheran, 582 U.S. at 462.

⁷⁴Id. (quoting McDaniel, 435 U.S. at 626 (quoting Sherbert v. Verner, 374 U.S. 398, 406 (1963)).

⁷⁵Carson v. Makin, 979 F.3d 21, 42–43 (1st Cir. 2020).

⁷⁶Id. at 44.

⁷⁷Id. at 46.

⁷⁸Makin, 142 S. Ct. at 1998–99.

⁷⁹Id. at 1999.

⁸⁰Id.

⁸¹Id. at 1999–2000 (quoting Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 215, (2013) (quoting Legal Serv.’s Corp. v. Velazquez, 531 U.S. 533, 547 (2001)).

⁸²Makin, 142 S. Ct. at 2000 (“Maine may provide a strictly secular education in its public schools.”).

⁸³See Religious Charter Schools, supra note 9, at 10 (“State charter school laws are sufficiently diverse that the question of whether charter schools are state actors conceivably might vary from state to state (or possibly even from school to school).”).

⁸⁴Id. at 8.

⁸⁵Kaelan Deese, Supreme Court Asks Biden Admin to Pick Sides in North Carolina School Skirt Case, Wash. Examiner (Jan. 11, 2023), https://www.washingtonexaminer.com/policy/courts/scotus-asks-governments-view-on-charter-schools-skirt-requirement.

⁸⁶Rendell-Baker v. Kohn, 457 U.S. 830, 839–43 (1982).

⁸⁷See, e.g., Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (“When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action.”).

⁸⁸Drummond Letter, supra note 40, at 1 (“This office has previously recognized that charter schools ‘are public schools established by contract.’” (quoting 2012 AG 12 para. 1)).

⁸⁹Makin, 142 S. Ct. at 2000 (quotation omitted).

⁹⁰Id. at 1999–2000.

⁹¹Religious Charter Schools, supra note 9, at 9.

⁹²Id.

⁹³Rendell-Baker, 457 U.S. at 840–41 (holding that a private school for special-needs students was not a state actor even though it was heavily regulated and received around 90% of its budget from the state).

⁹⁴Id. at 841 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974)).

⁹⁵See Rendell-Baker, 457 U.S. at 840–41 (“Here the decisions to discharge the petitioners were not compelled or even influenced by any state regulation.”).

⁹⁶Makin, 142 S. Ct. at 1999–2000.

⁹⁷Religious Charter Schools, supra note 9, at 7.

⁹⁸Id.

⁹⁹Makin, 142 S. Ct. at 1999. Admittedly, charter schools, unlike private schools, must accept all students (subject to space limits) and do not charge tuition. But these facts alone do not transform a private entity into a public one. See Rendell-Baker, 457 U.S. at 832 (finding a non-profit school for troubled students to be a private actor even though none of the students paid tuition and 90% of funding came from the government).

¹⁰⁰Rendell-Baker, 457 U.S. at 842 (quoting Jackson, 419 U.S. at 353).

¹⁰¹See generally S. Ernie Walton, The Fundamental Right to Homeschool: A Historical Response to Professor Bartholet, 25 Tex. Rev. L. & Pol. 377 (2021) (explaining the history of homeschooling and how parents possess the primary educational right in the United States).

¹⁰²Id. at 408.

¹⁰³S. Ernie Walton, In Loco Parentis, the First Amendment, and Parental Rights—Can they Coexist in Public Schools?, 55 Tex. Tech L. Rev. (forthcoming 2023).

¹⁰⁴Brian D. Ray, Research Facts on Homeschooling, Nat’l Home Educ. Rsch. Inst. (Mar. 11, 2023), https://www.nheri.org/research-facts-on-homeschooling/.

¹⁰⁵Religious Charter Schools, supra note 9, at 10–11.

¹⁰⁶Espinoza, 140 S. Ct. at 2254; Makin, 142 S. Ct. at 2000.

¹⁰⁷Espinoza, 140 S. Ct. at 2254.

¹⁰⁸Makin, 142 S. Ct. at 1997.

¹⁰⁹Religious Charter Schools, supra note 9, at 11.

¹¹⁰Espinoza, 140 S. Ct. at 2255.

¹¹¹Zelmans v. Simmons-Harris, 536 U.S. 639, 649 (2002) (noting that “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals”) (internal citations omitted); Religious Charter Schools, supra note 9, at 11.

¹¹²Religious Charter Schools, supra note 9, at 11 (“The prohibition on direct funding of religious activities extends through a long line of cases addressing the constitutionality of programs providing secular aid to religious institutions—for example, transportation for religious school students, textbooks, educational equipment and computers, tutors for secular remedial instruction, and capital expenditures for the construction of buildings at religious colleges.”).

¹¹³Id.

¹¹⁴Zelmans, 536 U.S. at 652–53, 655.

¹¹⁵Espinoza, 140 S. Ct. at 2254.

¹¹⁶Id. (citing Trinity Lutheran, 582 U.S. at 458).

¹¹⁷Id. at 2261.

¹¹⁸Makin, 142 S. Ct. 1997 (quoting Trinity Lutheran, 582 U.S. at 462).

¹¹⁹Espinoza, 140 S. Ct. at 2254; Makin, 142 S. Ct. at 1997.

¹²⁰Makin, 142 S. Ct. at 1998.

¹²¹Beyond the direct versus indirect distinction, the other arguments that have been used to block religious charter schools are also dead. First, Makin expressly held that “use-based discrimination is [no] less offensive to the Free Exercise Clause.” Makin, 142 S. Ct. at 2001; see also id. (“In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”). Second, the triumvirate at a minimum cabined Locke v. Davey, 540 U.S. 712 (2004), to its facts, if not implicitly overruled it. Makin, 142 S. Ct. at 2002 (“Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”).

¹²²To be clear, no state “‘must’ fund religious” charter schools. Makin, 142 S. Ct. at 2000 (quoting id. at 2006 (Breyer, J., dissenting)). States have substantial freedom to set up different educational schemes according to their unique values—including experimenting with alternative forms of education. But when they choose to experiment by contracting with private entities—as is done in forty-five states through charter school legislation—they cannot constitutionally prevent religious charter schools from participating in the experiment.

¹²³Katherine Stewart, The Bigger Story Behind the Charter School That Requires Girls to Wear Skirts, New Republic (Apr. 17, 2023), https://newrepublic.com/article/171824/charter-school-north-carolina-requires-girls-wear-skirts.

¹²⁴See generally Walton, supra note 24.

¹²⁵See generally id.

S. Ernie WaltonJune 12, 2023