The Constitutional Debate Over Religious Charter Schools

The constitutionality of religious public charter schools rests on three main pillars: the government's obligation to remain neutral toward religion, the concept of a “circuit-breaker” in public funding, and the free exercise rights of parents.

The Free Exercise Clause of the First Amendment requires the government to maintain religious neutrality, a principle that has increasingly justified the use of public funds for religious education. In Carson v. Makin (2022), which dealt with a tuition assistance program for students in rural areas, the Supreme Court ruled that it violated the Free Exercise Clause to exclude religious schools solely based on their religious status. This decision is especially relevant to the charter school debate, as it highlights the Court’s stance that religious institutions cannot be barred from public benefit programs simply because of their religious nature. Justice Breyer, in his dissent, warned that the Court’s focus on the Free Exercise Clause risked undermining the Establishment Clause entirely.

A second argument in favor of religious charter schools centers on the idea that their private management and the voluntary nature of enrollment act as a “circuit-breaker,” disconnecting government funding from religious activity. This reasoning stems from Zelman v. Simmons-Harris (2002), where the Court upheld a school voucher program in Cleveland, Ohio, which allowed public funds to be used at private—including religious—schools. The Court emphasized that because it was parents—not the government—choosing to send their children to religious schools, the connection between the state and religion was sufficiently broken to satisfy the Establishment Clause.

The third argument draws on the constitutional right of parents to direct the upbringing and education of their children, as affirmed in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In Meyer, the Court invalidated a Nebraska law that barred teaching foreign languages to young children, recognizing parental and instructional liberty as protected under the Fourteenth Amendment. In Pierce, the Court struck down an Oregon law requiring children to attend public schools, ruling that it unjustifiably interfered with parental choice of private or religious education. Together, these cases establish that parents have a constitutionally protected right to shape their children's education. Religious charter schools, proponents argue, further this right by expanding the range of publicly funded educational options.

Critics of religious public charter schools focus on the Establishment Clause of the First Amendment and argue that the direct funding of religious institutions undermines the “circuit-breaker” doctrine outlined in Zelman. While charter schools are often privately managed, they are legally considered public schools and receive direct state funding. As such, channeling public funds to religious charter schools could be perceived as governmental endorsement of specific religious doctrines.

Opponents also contend that Carson does not justify the inclusion of religious charter schools in public funding frameworks. That case addressed private religious schools’ exclusion from public benefit programs; it did not involve public entities like charter schools. Since charter schools operate as part of the public education system, the Establishment Clause is more directly implicated.

The constitutionality of religious charter schools is also at the heart of Oklahoma Statewide Virtual Charter School Board v. Drummond, a case the Supreme Court is set to hear this term. Oklahoma Attorney General Gentner Drummond builds his challenge on two legal foundations: the state’s Blaine Amendment and the test articulated in Lemon v. Kurtzman (1971). Drummond argues that the Kennedy v. Bremerton School District (2022) decision did not overrule Lemon, thus preserving its three-prong test: government action must have a secular purpose, must not advance or inhibit religion, and must avoid excessive entanglement with religion. Post-Agostini v. Felton (1997), the “entanglement” prong has been absorbed into the “effect” analysis. Drummond maintains that public funding for a religious charter school violates all aspects of this test, as the funding’s purpose is religious, its effect promotes religion, and it fosters entanglement through public support of religious instruction.

In summary, supporters of religious charter schools argue that such institutions uphold constitutional principles of religious neutrality and parental autonomy. They cite rulings like Carson and Zelman to argue that parental choice creates sufficient distance between public funds and religious endorsement. Critics, however, emphasize the public nature of charter schools, warning that direct funding of religious operations through a public system raises serious Establishment Clause concerns. While these concerns remain unsettled, recent Court decisions suggest a judicial shift that increasingly prioritizes the Free Exercise Clause over the traditional boundaries imposed by the Establishment Clause.

Sources:

1. Carson v Makin, 596 US 767 (2022)
2. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
3. Meyer v. Nebraska, 262 U.S. 390 (1923)
4. Pierce v. Society of Sisters, 268 U.S. 510 (1925)
5. Oklahoma Statewide Virtual Charter School Board v. Drummond
6. Lemon v. Kurtzman, 403 U.S. 602 (1971)
7. Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
8. Agostini v. Felton, 521 U.S. 203 (1997)