Upsides and downsides of a SCOTUS victory for nation's first religious charter school

The story: With less than a week to go before the U.S. Supreme Court hears arguments about the constitutionality of religious charter schools, supporters and opponents are making wildly different predictions about the possible effects.

Supporters, who include advocates for religious education, are framing a win for their side as a victory for religious freedom and a logical extension of recent rulings that affirmed faith-based schools’ right to participate in publicly funded programs.

“This is a way of getting new choice options in the context of performance accountability,” said Andy Smarick, a senior fellow at the Manhattan Institute, during  a recent debate about religious charter schools sponsored by the American Enterprise Institute. “A small number of religious organizations might apply to run charter schools, and I think that’s wonderful and not going to change the world.”

The Manhattan Institute is among the organizations weighing in on the side of religious charter schools.

Opponents, which include the National Alliance for Public Charter Schools, are sounding the alarm over what they say could cripple a movement that began more than 30 years ago to launch innovative new public schools.

The other side: The National Alliance for Public Charter Schools warned that a ruling allowing religious charter schools could carry “catastrophic consequences” for the nation’s existing charter schools.

For religious charter schools to exist, they argue, the high court would have to redefine charter schools as private. That would overturn laws in 46 states, plus Washington, D.C., and Puerto Rico, that define charters as public and thus threaten their ability to be funded under the same per-pupil formulas as school districts.

Yes, and: Charter supporters also point out the potential for ripple effects, such as charter schools losing facilities funding, questions about teacher participation in state benefit programs, or more drastically, calls to halt the approval of new schools or even funding of existing ones.

“This could lead to the destruction of chartering or limiting of chartering,” said Kathleen Porter-MaGee, a managing partner at Leadership Roundtable, an organization that brings together laity and clergy to support the Catholic church.

Instead of extending charters to religious groups, she encouraged a doubling down on private K-12 scholarship programs, which are now established in 29 states, with Texas poised to become the 30th.

Expanding scholarship programs for private education would let faith-based schools maintain instructional and employment practices that align with their beliefs, free from government interference, while allowing them to serve families who would not have access without private funding.

Catch up: The legal and political battle rocketed to the Supreme Court shortly after two Catholic dioceses won approval from Oklahoma’s statewide virtual charter review board in 2023 to open St. Isidore of Seville Catholic School, an online charter school that would include the same Catholic teachings as the church’s in-person schools.

The fight pitted Republicans against one another, with the current Oklahoma attorney general taking a position opposite his GOP predecessor and filing a lawsuit. It also divided the charter school movement, with national groups forcefully opposing a legal argument that could redefine their status as public entities and some charter schools arguing they would welcome the change.

While Oklahoma has a refundable tax credit that pays up to $7,500 per child for private school tuition, the program was not available until January 2024, about six months after St. Isidore applied for charter school authorization.

Possible upsides of a win for St. Isidore:

• More government funding for state-based schools: In some states, the law requires school districts to share capital funds with charter schools, which would provide a new revenue source for charter facilities. Charter schools also have more access to federal funding for startup costs or services for low-income and special needs students.
• Expanded access: Tuition-free schooling might attract more families than private scholarships that don’t cover the full cost. And while private scholarship programs are sweeping the country, the laws vary by state. Some cap funding or limit participation to low-income households or students with special needs.
• A broader map: There are 14 mostly blue and purple states (Texas could soon lower the number to 13) that allow charter schools but do not have publicly funded scholarship programs for private schools.

“Catholic schools have been doing things on the cheap for far too long,” Smarick said. “This is the opportunity to say you can remain private for as long as you want…but if you think you can do more for your mission in the charter school context, you can.”

Possible downsides:

• Increased regulation: In recent years, some states have piled more regulations on charter schools to match what they require of district schools. They could force charter schools to comply with non-discrimination policies that might contradict the teachings of faith-based organizations.
• “Regardless of the ruling, religious charters are not wise and work against the intended goal of expanding religious liberty,” Porter-MaGee said. “The price of public partnership is often a loss of control.”
• Halted growth: In a more extreme scenario, charter school opponents, who are already pushing to curtail charter schools in states like Massachusetts, could use the ruling as a pretext to halt charter school growth altogether.
• Imperiled funding: The ruling could also put charter school funding in violation of strict Blaine amendments that ban any aid to private schools, religious or not, such as in Michigan, which has 300 charter schools but no scholarship programs for private schools.
• It might also prompt lawsuits from teachers unions in some states who could argue that laws now ban direct funding of these schools that the high court redefined as private.

Charter groups preparing: In case the court rules in favor of St. Isidore, advocates of established charters are working on model legislation that would allow states to maintain funding. A finding that says charter schools are not state actors also raises many questions, such as whether the ministerial exception, a legal doctrine that shields religious organizations from non-discrimination laws in the hiring of staff with ministerial duties, would apply to faith-based schools.

“No one knows what the court is going to say,” Smarick said. “State legislatures need to step up fast and answer these questions.”

Tune in: The U.S. Supreme Court has scheduled oral arguments in the case for 10 a.m. April 30. Audio will be livestreamed.