The Promise of Oklahoma’s Catholic Charter School

W ith America’s growing demand for school choice and growing need for high-quality, accountable options, adopting faith-based charter schools could be the most sensible next step in K–12 education reform. And yet, sadly, too many are bound and determined to stop that from happening. Recently, the Oklahoma Supreme Court — in response to the state’s earlier approval of a Catholic-affiliated virtual charter school — became the latest example, holding that faith-based charters violate the state’s and the federal constitution.

I’m reasonably confident that the U.S. Supreme Court will, before long, conclude the opposite. But I’m less confident, though equally hopeful, that state legislators will take up this matter and address the thorny policy issues it raises. Faith-based chartering is too important to be left to the courts alone. But resolving this legislatively will require balancing competing principles, standing up to angry activists, and compromising to get something done — a vanishing set of skills and dispositions in today’s polarized politics.

First the legal issues. The Oklahoma Supreme Court’s reasoning was straightforward but mistaken. It ruled that since charter schools are public schools and since government entities must be secular, charter schools cannot be faith-based.

But that runs counter to the history and purpose of chartering, the “state action” doctrine, and recent jurisprudence on government programs and free exercise. For about 150 years, virtually every public school in America was run by a school district, an agency of the government. As 20th-century court cases built a larger and larger wall between governments and faith traditions, it was understandable that courts would bar public schools from having any religious elements.

But the early 1990s’ creation of chartering fundamentally changed this. State governments — first in Minnesota and now in nearly all states — permitted nonprofit organizations to run some public schools. That meant there were now two categories of public schools: those run by the government and those run by nongovernmental bodies. Obviously, the state-run schools would need to be entirely secular, but would the same be true for privately run public schools? Perhaps not.

Some would argue that since charter schools received government aid, they had to be separated from faith. But there are plenty of programs that direct state funding to nongovernmental (including faith-based) schools. For instance, vouchers and tuition tax credits enable families to direct aid to private K–12 schools. Similarly, Pell Grants and the GI Bill have long allowed students to direct aid to private colleges. And President Biden’s “forgiveness” of mountains of student loans amounts to the federal government’s paying for a lot of private-college education. So it can’t be the case that receipt of government dollars means a school has suddenly become a government entity.

But, critics will correctly point out, state laws and federal laws have long defined charters as public schools. That must mean they are agents of the state and therefore required to remain entirely secular, right? Not so fast. There are many types of private organizations that engage in government-sponsored activities; for instance, nonprofits can, via contracting, provide social services, operate health clinics, run foster-care centers, and much more. The government, because of the state-action doctrine, can’t simply redefine these private groups as public because they are partnering with the government. Indeed, for a private organization to be deemed a state actor, the government must be entwined with the organization and/or directing its activities. But that is the opposite of the case when it comes to chartering.

State laws from the very start have explicitly freed charter schools from direct government control. This list of ways is long: Charters are operated by nongovernment bodies; they don’t have to follow most district rules on schedules, calendars, or teaching methods; they generally purchase books and services separate from the government; their faculty and staff are typically employed by nongovernment bodies; in some states, their teachers are not subject to the same licensing rules; in some states, they are even authorized and monitored by other nongovernmental bodies. And maybe most important, they are schools of choice — no one is forced to attend a charter. That means the charter sector exists outside of the standard government-operated system that assigns students to schools based on their home addresses.

In total, then, it is difficult to make the case that charters are functionaries of the government; indeed, charters came about precisely because states wanted some public schools free of that traditional system. Nevertheless, the Oklahoma court’s majority held that the charter school in question is a governmental entity (as a public school) and a state actor. On the latter point, the majority opinion lists the ways charters are similar to traditional public schools (e.g., following the same content standards and financial auditing rules) but unfortunately ignores the myriad ways they are different.

The final legal argument made by critics is that even if charters are deemed nongovernmental bodies, the state still has the right to create a program that is entirely secular in nature. In other words, a state can, the argument goes, decide that it wants to open the operation of public schools to non-religiously affiliated nonprofits. Again, not so fast. Through three major cases in the last decade, the U.S. Supreme Court has ruled that when a government makes a benefit available to a wide array of nongovernmental entities, the government cannot single out faith-based groups for exclusion. That is anti-religious discrimination that runs afoul of the First Amendment. The Oklahoma majority gets around these cases by saying they don’t apply since the school is a state actor not a non-governmental entity.

I suspect that Oklahoma’s decision will be appealed, and I expect the U.S. Supreme Court to decide that charters are nongovernmental bodies engaged in public work (and therefore not state actors) and that chartering is a government program that cannot single out faith-based groups for exclusion. As a result, faith-based chartering will be deemed consistent with the U.S. Constitution. A dissent by Oklahoma justice Dana Kuehn ably makes some of these points. It also smartly argues that charters, as choice-based supplements to the traditional system, are private entities contracting with the state to help accomplish a public goal long pursued by nongovernmental and governmental entities. I would not be surprised if the themes in this dissent appear as themes in a U.S. Supreme Court decision upholding the constitutionality of faith-based charters.

Because our thinking has been shaped by recent eras of judicial activism and congressional weakness, many will see the preceding paragraph as the last word. That is, since courts decide all our tough issues for us, advocates of faith-based charters will be enthused, and opponents will be resigned. But even if the Court does what I anticipate — and especially if the Court delays or rules differently — there is still need for legislative action.

Any court decision will leave some of the most interesting and important policy questions unanswered. For example, should a faith-based charter be able to hire only teachers who share the school’s faith tradition? Should the state create a new type of charter-school authorizer to consider and then approve faith-based charters since these schools will present novel challenges? Could a faith-based charter be held accountable by its authorizer for faith-based performance metrics? Could a faith-based charter use state funds for any of its activities, or just for its primarily secular activities (i.e., yes for reading and math instruction, no for religion courses)?

Such issues put American-governing principles in conflict, and legislatures were designed for this exact purpose. They can determine how best to answer these questions given current circumstances and other state programs, where cross-partisan compromise is possible, where a variety of solutions are permissible, where a pilot initiative makes sense, and so on. Sadly, this era of political polarization has led us to believe that high-stakes questions are a matter of winning big or losing big. This is compounded by what scholar Mary Ann Glendon called “rights talk,” our modern proclivity to see disagreements as black-and-white matters of justice and liberty that are beyond democratic deliberation. We invoke rights and demand a comprehensive victory instead of negotiating and reaching consensus.

Legislative discussions of faith-based chartering would be salutary for a broader reason, too. Conversations about K–12 schooling have become radioactive of late. Some say public schools are broken and full school choice is the only answer. Others say those advocating bold reform are trying to destroy public education. We have forgotten that public education can and should be a place where e pluribus unum comes to life. America will always have enormous diversity related to tradition, history, culture, politics, and more. We need to honor that while also recognizing that some degree of solidarity is also needed. There should be some commonality in what our students learn, how they understand our national history, how they are prepared for work, and what is expected of them as citizens.

Rather than going our separate ways and calling each other names on the way out, a legislative discussion of faith-based chartering would cause our leaders to work through some of the fundamentals of public schooling. And any final legislative language on faith-based charter schooling would demonstrate how pluribus and unum can live together in one program: how a constellation of nonprofits, including faith-based groups, can operate different types of schools that serve particular interests while also adhering to some number of shared beliefs that speak to a common good.