Can Government Fund Religious Education?

Can government fund religious education? This ageless question is back in the news with the Oklahoma Supreme Court’s recent decision invalidating what would have been the country’s first religious charter school—St. Isidore of Seville Catholic Virtual School. For the casual observer, the decision might not be surprising. For more than half a century, the courts invariably rejected attempts to fund religious education. Given that judicial reluctance, a religious charter school might seem like a nonstarter.

But over the past decade, the U.S. Supreme Court has refashioned the relationship between church and state, casting aside many of the doctrines that formed the basis of this longstanding constitutional resistance to funding religious education. On one hand, the Court has held that the exclusion of private religious institutions from government funding programs violates the First Amendment’s prohibition against religious discrimination. And on the other hand, the Court has discarded its broad and sprawling Establishment Clause precedents, permitting a far wider range of interaction between church and state within both public and private schools.

Not surprisingly, government officials have taken notice, testing the limits of the Court’s new rules. For example, Louisiana recently enacted a new law that will require the state’s public schools to display the Ten Commandments in each classroom. And, in a decision unrelated to the charter school issue, an Oklahoma official recently announced a new policy to incorporate the Bible into the traditional public school curriculum.

But maybe the most conceptually complex—and highest-impact—consequence of these new constitutional commitments has emerged in the ongoing legal battle over Oklahoma’s attempt to authorize the country’s first religious charter school. Charter schools come in all shapes and sizes, varying in their structure and definition across jurisdictions. But typically, they are privately operated public schools. So, can they be religious? Answering the question has become a bit of a constitutional Rorschach test: should we view prohibiting religious charter schools as prohibiting discrimination against the private religious entities seeking to operate them? Or should we view allowing religious charter schools as pushing even the new, more limited demands of church-state separation too far by allowing public schools to be religious? How do the new rules of church and state apply when our notions of public and private collide?

To appreciate the constitutional puzzle, consider the law as it stands in Oklahoma. Under Oklahoma law, a charter school may be sponsored by a wide range of both public and private entities. However, a “charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations” and a “sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution.”

One way to view these rules—indeed, the way they were viewed by Oklahoma’s previous attorney general, John O’Connor—is as a form of prohibited religious discrimination. Thus, Oklahoma’s rule could be understood as authorizing private entities to sponsor and operate charter schools, but not religious entities. And the Supreme Court has ruled multiple times over the past decade that you cannot exclude private religious institutions from government funding programs available to private nonreligious institutions. For that reason, in a 2017 decision, the Supreme Court invalidated Missouri’s attempt to exclude a church-run school from a state program aimed at funding the use of recycled tires to pave playgrounds. More recently, in 2022, the Supreme Court struck down Maine’s attempt to exclude religious schools from its tuition assistance program. In both instances, the Supreme Court made clear that the Free Exercise Clause of the First Amendment prohibits government funding programs from “exclud[ing] otherwise eligible schools on the basis of their religious exercise.”

But simply viewing religious charter schools through the prism of private religious discrimination would be to miss the crux of the problem. Charter schools, which may be operated by private entities, are not only authorized by state governments, but are defined by Oklahoma Law as public schools—they are, to use the language of the statute, what the term “means.” And if charter schools are full-fledged public schools, the constitutional stakes of rejecting religious charter schools start to look very different. Instead of a form of religious discrimination against private entities, judicial refusal to authorize a Catholic charter school might better be thought of as necessary to ensure government does not establish religion through its public school system.

Once viewed as part of the state’s public school system, a religious charter school would seem to face significant constitutional hurdles. Undoubtedly, the Establishment Clause rules in place until recently would have required a court to find a religious charter school unconstitutional. For nearly half a century since the Supreme Court adopted the expansive and oft-criticized Lemon test, the Court typically deemed the idea of substantial government funding for religious education and instruction dead on arrival. Laws or policies that had the purpose of advancing religion, had the primary effect of advancing religion, or required excessive entanglement with religion were interpreted by the Court to violate the First Amendment. To fail this constitutional test only required checking one of these three boxes; a religious charter school would probably have run the table, hitting the trifecta of Establishment Clause invalidity.

But even as the Supreme Court has abandoned the Lemon test, there are reasons to think that a religious charter school—viewed as a public school—would violate the First Amendment. True, the Court’s new test, which focuses on the Founding Fathers’ original understanding of disestablishment, opens the door to expanded church-state interaction. That’s because the history of the founding period indicates that the Framers were willing to engage in far more government-sponsored religious expression than the Court’s stingy and inconsistent Lemon test allowed.

But even under a more originalist understanding of the First Amendment, the Court has been clear that government cannot coerce religion—and that it cannot prefer one religion over another. A religious charter school might very well run afoul of both these constraints. 

On one hand, no student is forced to attend a particular charter school. Yet, on the other hand, the Court’s past decisions have understood the concept of coercion broadly, such that it even included forms of “subtle pressure” to attend school events that were technically voluntary; the pressure that students would feel once enrolled might therefore fail a broader coercion test. Similarly, a state might argue that any faith community has the ability to seek approval for its own charter school, and so no preference is shown for a specific faith when the state authorizes a particular religious charter school. At the same time, when viewed first and foremost as a public school, a religious charter school might be best understood as using its status and authority to encourage students to follow one faith over others. No doubt, any future litigation—litigation that seems quite likely—will test these constraints, providing further insights into the limits of the Court’s new Establishment Clause jurisprudence.

So where does this leave us? The constitutional future of religious charter schools will, in all likelihood, depend on whether they are conceptualized, first and foremost, as private schools or as public schools. When reduced to this question, a superficial gloss would give the public school side of the ledger the upper hand. After all, charter schools are invariably defined by state law as public schools. Doesn’t that mean that they are public schools—and therefore religious charter schools should be off the table?

This sort of analysis, however, moves too fast. To trigger a constitutional violation, it isn’t quite that charter schools would need to be “public schools.” A court would need to determine whether the offending conduct in question—in our case, the impermissible mixture of church and state—is attributable to the state. To appreciate the subtle difference in the inquiry, we only need to think back to what a charter school is. Sure, it is authorized by the state. But then it is, more often than not, operated by a private entity. So, when a private operator makes any one of thousands of daily decisions about a school’s programs and procedures, should we view that decision as attributable to the state that authorized the school or the private individual or entity that made the decision?

The law that governs this area, known as state action doctrine, is a mess—and that’s being nice about it. Renowned Professor Charles Black famously captured the contradictions that plague this area of law when he called it a “conceptual disaster area.” One can see why. When public and private entities interact, how does one determine to whom a particular decision or outcome is attributable? Over time, the Court has come up with a litany of tests to figure out the answer to this question, one more convoluted than the next.

Not surprisingly, when federal courts have tried to apply these tests and determine whether the actions of charter schools are attributable to the state, the legal and factual variations have generated a range of outcomes. For example, back in 2010, the Ninth Circuit Court of Appeals found that a charter school’s employment decisions were not attributable to the government because the school—as an employer—acted independently of any government involvement or oversight. By contrast, in 2022, the full Fourth Circuit Court of Appeals found that a charter school’s decision to have a sex-based dress code was attributable to the government because providing a free, publicly-funded education is “the exclusive [function] of the State,” thereby classifying any conduct in furtherance of that goal as the state’s conduct.

Such decisions capture how far a court’s framing of the question goes toward answering it. The more a court focuses on whether a specific decision or a particular area of charter school life—things like dress code, employment, or, maybe most importantly, educational instruction—are under the control or oversight of the state, the more likely a court is to find that, in reality, the charter school is functioning as a private school, making its own independent decisions on how to operate. By contrast, the more a court focuses on whether a charter school is a public institution, satisfying the obligations of the state to provide a publicly-funded education, the more likely that court is to classify the charter school as a public school.

Once a court picks its path, the rest of the analysis flows pretty naturally. If we view religious charter schools as operating independently of the state, creating their own curricula and their own programs just like other private schools, then excluding religious charter schools while authorizing their nonreligious counterparts starts to look like prohibited religious discrimination. By contrast, if we view religious charter schools as simply another way for the state to satisfy its obligation to create publicly-funded, publicly-controlled public schools, then authorizing religious charter schools would seemingly run afoul of the First Amendment’s prohibition against government-sponsored religious coercion.

As the battles of religious education ramp up, one can only imagine that the Supreme Court will eventually weigh in. Which path will the Court ultimately choose? Will it endorse religious charter schools as necessary to avoid private religious discrimination, or will it reject religious charter schools as a form of religious coercion? Only time will tell. When it comes to the future of religious charter schools, the law is undeniably in the eye of the beholder.

Image by Kit Leong and licensed via Adobe Stock.