The idea that religion should be isolated from our civil institutions has overwhelmingly captured the American popular imagination. Recently however, the U.S. Supreme Court has been dismantling this “wall of separation” narrative, brick by brick, to allow more freedom for private religious expression and activity. Over the past year, the Court has consistently ruled in favor of religious plaintiffs over the government in Carson v. Makin, Kennedy v. Bremerton School District, 303 Creative LLC v. Elenis, and Groff v. DeJoy. The next brick the Court may consider is the public funding of a religious charter school in Oklahoma.
On June 5, the Oklahoma Statewide Virtual Charter School Board approved St. Isidore of Seville Catholic Virtual School’s application to become the nation’s first publicly funded religious charter school. St. Isidore plans to open in August of 2024 for the 2024-2025 school year and will be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa. Like most states, Oklahoma requires its charter schools to be nonsectarian in their operations and forbids operation by a religious organization, but St. Isidore believes the law is on its side.
Now that the Virtual Charter School Board has approved St. Isidore’s application, a flood of public officials, law professors, and advocacy groups have weighed in on the controversial religious charter school. The one thing all commentators agree on is that a high-profile legal battle looms on the horizon. Oklahoma taxpayers will likely file suit under the state charter school statute, two provisions of the Oklahoma state constitution, and the federal Establishment Clause. The inevitable litigation will primarily focus on three issues: First, whether charter schools are private actors or state actors. Second, whether states with publicly funded charter schools must permit religious groups to operate such schools. Third, whether approved charter schools may be religious in all operations.
It is an open question whether charter schools, such as St. Isidore, are state actors or private actors under state law. Moreover, there is an ongoing circuit split on the question with respect to federal law, which the Supreme Court declined to address this term. The state actor doctrine is key to the question of whether a charter school may be religious and operate as such.
The federal Constitution binds state actors but not private actors. State actors cannot invoke a Free Exercise right—First Amendment rights are typically only wielded by private actors against the government—while private actors may. Therefore, if St. Isidore is a state actor, the school would not be able to argue that the Free Exercise Clause protects its religious status and teaching. It may also be bound by the Establishment Clause and prohibited from providing a religious curriculum, sponsoring prayer, or coercing religion. However, if St. Isidore is a private actor, it is free to assert a Free Exercise defense and would likely be immune from a federal Establishment Clause challenge.
Following decisions from the 4th and 10th Circuits, Americans United for the Separation of Church and State argues that charter schools are referred to as public schools in the Oklahoma Charter Schools Act, and therefore they are state actors. And in the alternative, even if charter schools are private entities, they qualify as state actors because charter schools are entwined with the state and perform the public function of providing free public education, which is traditionally performed by states.
By contrast, former Oklahoma Attorney General John O’Connor agrees with the First, Third, and Ninth Circuits, which have found that charter schools are not state actors despite their public funding because they have considerable flexibility in how they operate and because education is not traditionally the exclusive prerogative of the state. Professor Nicole Stelle Garnett adds that charter schools are run by private organizations and given substantial operational autonomy under charter laws. They are much closer in kind to private schools participating in parental school choice programs than they are to public schools.
Regarding the issues of whether states must permit religious groups to qualify as charter schools and whether they can be religious in all of their operations, it is likely that as a private actor, St. Isidore would be able to successfully wield the federal Free Exercise Clause as a mighty sword in warding off state law and federal Establishment Clause arguments.
The Oklahoma Constitution has two provisions stating that publicly funded schools must be free from sectarian control and that no public money can be used to benefit a sectarian institution. The Oklahoma Charter Schools Act also prohibits charter schools from being religious in their operations and prohibits religious institutions from qualifying as charter schools.
But according to O’Connor, if St. Isidore is deemed to be a private actor, these provisions are unenforceable because they violate the Free Exercise Clause as construed in the Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin trilogy. All three cases support the proposition that once a state creates a program where private entities are generally allowed to participate, it cannot disqualify a private person or organization solely because they are religious or sectarian. The U.S. Supreme Court clarified in Carson 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.” Here, Oklahoma has created a program to support private organizations that help serve the public good by providing education. Therefore, supporters argue it may not bar religious organizations from participating because of their religious status. Especially when parents, not the government, determine if their children would benefit most from attending a religious school. Disqualifying St. Isidore from being a charter school solely because it is Catholic is religious discrimination. It puts the Catholic school in a bind: either be fully Catholic or receive government benefits. This type of discrimination would most likely be deemed unconstitutional by the Court.
Further, laws that target religion are neither neutral nor generally applicable and are therefore subject to strict scrutiny. To show a compelling enough interest to survive strict scrutiny, plaintiffs would have to argue that the Establishment Clause requires Oklahoma to prohibit charter schools from being operated according to religious principles. However, Establishment Clause violations can only be asserted against government or state actors. And given the Supreme Court’s statements in Carson that eliminated the status/use distinction and its narrowing of Locke v. Davey to the factual context of a vocational religious degree, any Establishment Clause argument seems like a long shot.
On the other hand, Americans United argues that there is indeed an Establishment Clause violation because Oklahoma public schools are not funded in a way that represents a “true private choice.” The state does not provide funds or vouchers directly to parents or students. Instead, the funding goes directly from the government to charter schools. Therefore, the funding does not reach particular charter schools solely due to choices by parents or students. The current Oklahoma Attorney General also argues that the Trinity Lutheran, Espinoza, and Carson trilogy applies only to private schools, not charter schools such as St. Isidore.
The impending controversy over religious charter schools will likely give the Supreme Court the opportunity to address several live church-state issues, including religious status and use, direct versus indirect funding for religious institutions, and whether charter schools are state or private actors. St. Isidore may become the culmination of the Trinity Lutheran, Espinoza, and Carson series. All in all, this Catholic school is not just another brick in the wall.
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