The Court Should Bless Religious Charters

Wall Street Journal

24-04-2025

The Supreme Court will consider next Wednesday whether the First Amendment requires states to permit religious charter schools. The case, Oklahoma Statewide Charter School Board v. Drummond, concerns what would be the nation's first religious charter school: St. Isidore of Seville Catholic Virtual School.
The school, a joint project of the state's two Catholic dioceses, seeks to deliver a high-quality Catholic education remotely across a large rural state. The state's charter-school board approved St. Isidore's application in 2023 after concluding that state laws requiring charter schools to be 'nonsectarian' were unconstitutional. The Oklahoma Supreme Court disagreed and ordered the board to revoke its contract. St. Isidore argues that the First Amendment's Free Exercise Clause protects its right to participate in the charter-school program.
Much of the commentary about the case exaggerates its scope, claiming that a ruling in St. Isidore's favor would open the doors to religion in public schools. Yale Law School's Justin Driver warned that the case threatens to 'destroy the American public school as we have known it' and 'raze foundational structures of American law and life.'
This is nonsense. Although charter schools are nominally public schools, the legal issue before the court isn't concerned with traditional public schools. They are operated by school districts. They are unquestionably government actors and therefore must be secular. Neither party in the case disputes this. Charter schools, however, are privately operated and designed entities, freed from government control to promote choice for families.
The Supreme Court has made clear that the First Amendment prohibits religious discrimination in government programs that enlist private organizations to advance public goals. The question is whether charter schools in Oklahoma are private or government actors for purposes of the U.S. Constitution. If they are private, Oklahoma can't require them to be secular; if they are governmental, it arguably must.
Oklahoma officials are divided on the question. Gov. Kevin Stitt agrees with the charter-school board that St. Isidore is a private actor. Attorney General Gentner Drummond asserts that charter schools are government actors because they are called 'public schools,' receive public funds and are supervised by state regulators. He also argues that the state 'established' St. Isidore when they entered into a charter contract.
But the Supreme Court has reiterated that neither the label 'public' nor public funding transforms a private actor into a governmental one. The Archdiocese of Oklahoma City and the Diocese of Tulsa didn't become Oklahoma when they entered into a contract to operate St. Isidore as a charter school. They, like other government contractors, are private entities with constitutional rights. The school is a nonprofit corporation that existed before the contract and continues to exist despite its revocation. After all, St. Isidore is a petitioner in the case.
Some charter schools, which have long embraced the label 'public,' also affirm that they are government actors. This is a mistake. Although it will have no legal consequences for traditional public schools, St. Isidore's case will have profound implications for public-education policy more broadly. Oklahoma funds a variety of schools, governmental and private, in various ways. Many states also embrace this pluralistic understanding of 'public education' by empowering parents to spend public funds on a range of options. Thirty-four states have at least one private-school-choice program, according to EdChoice, and 13 of them extend eligibility to all or most students. More than 40% of school-age children are eligible to participate, and more than 1.25 million do.
Charter schools, which educate more than 3.7 million children in 47 states, are an important part of this pluralistic understanding of public education. They operate unshackled from government control to innovate and serve children's unique learning needs. Although the court is considering only the status of charter schools in Oklahoma, a decision that charter schools are government schools would threaten to place them in a legal straitjacket and undermine their very reason for being.
A decision suggesting that states can transform private actors into governmental ones by slapping the label 'public' on them would also threaten the autonomy and religious liberty of private organizations that receive government funds to advance a range of public goals, including poverty alleviation, social services, healthcare and many others.
Either charter schools are government actors or they aren't. If they are, the freedom they have long enjoyed, and the educational pluralism they are designed to foster, is in peril. If they aren't, the court must confront the reality that only one kind of educational pluralism is off the table in Oklahoma's charter school program: religious pluralism. The First Amendment doesn't allow that.
Ms. Garnett is a law professor at the University of Notre Dame.