Could a closely watched U.S. Supreme Court case clear the way for charter schools run by churches and other religious organizations?

Justice Stephen Breyer raised the question this week at arguments for Espinoza v. Montana Department of Revenue, one of the most significant K-12 cases before the high court in years.

The debate over religious charter schools has been active in a small corner of the school choice advocacy world for years.

“Overriding all objections is America’s woeful lack” of space in quality schools, the Thomas B. Fordham Foundation’s then-President Chester E. Finn, Jr. wrote in a 2003 Education Week commentary. “Every possible asset should be brought to bear on the creation of more. Religious charter schools deserve consideration.”

Here’s what you need to know about the discussion.

Religious Discrimination?

At the Supreme Court Wednesday, a group of parents joined by the Trump administration argued that the state of Montana committed unconstitutional discrimination against their personal religious views when it determined that a small tax credit for private school scholarship programs could not be used to fund scholarships to religious schools. In making that determination, the state’s department of revenue had cited a state constitutional provision that bars public funds for religious schools.

If the court takes the most dramatic action by declaring that provision unconstitutional, would that open up further state support of religious schools in other areas? That was the gist of a somewhat jumbled line of questioning between Breyer and Jeffrey Wall, the principal deputy U.S. solicitor general.

The First Amendment is designed to avoid preferential treatment for religion, but it does not prohibit “a generally available public benefit” from going to religious organizations, Wall argued.

“Say in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system, and a lot of them give a lot of money to charter schools,” Breyer said. “Now, they don’t give money to Catholic schools. All right? Now, if we decide you’re right, does that all change?”

From there, Wall seemed to struggle to understand the nature of Breyer’s question, and Breyer struggled to clarify. Seemingly returning to the issue of tax credits, Wall cited a 2017 decision, Trinity Lutheran Church of Columbia v. Comer, in which the high court ruled that Missouri had violated the Constitution’s guarantee of free exercise of religion when it denied a church participation in a state program to improve the safety of playgrounds.

“When the Court said you can’t deny a generally available public benefit to an entity that’s otherwise qualified, based solely on its religious character or nature, that rule applies equally to schools as to playgrounds,” Wall said.

Charter School Funds

Charter schools are publicly funded schools that are managed independently by third-party organizations. Could a church or other religious organization attempt to use the precedent of Trinity Lutheran, or a potential broad ruling in the Montana case, to argue that it is entitled to operate a charter school?

Perhaps so, some legal experts said. But that charter school would not be able to offer a religious education, despite being run by a religious organization.

“Public charter schools are publicly funded schools, and as long as they are state school, they are government schools, they must comply with the Constitution, which would say the government cannot itself advance religion, interfere in religion, pick and choose between religions,” said Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty.

“If it’s a charter school that is just like any private parochial school, and they’re going to teach Catholic doctrine ... I think it would be unconstitutional,” Hollman said. “If it was just in name only and it was really a school that was no different —there was no religious education—I think that they’d have a better case under Trinity Lutheran.”

Such arguments would also depend on the specifics of a state’s charter school law, said Martha McCarthy, a professor of educational leadership who teaches school law at Loyola Marymount University. A religious organization would have to argue that it was identical to qualifying charter organizers in every way except religious affiliation, she said.

The Baptist Joint Committee joined in an amicus brief in the Montana case, arguing that laws prohibiting public aid to religious schools are necessary to prevent public intrusion into religion. Hollman said Breyer’s questions about charter schools demonstrate the kinds of complicated questions that emerge from cases about the line between church and state.

“As a religious liberty organization and as someone who’s worked in this field for a long time, I think it’s very dangerous to argue that religion is no different from other endeavors and should be treated the same,” she said. “I think that that betrays its special place in our constitutional order and could lead to all kinds of consequences that would be bad for religion and bad for religious liberty.”

A Bucket of Cold Water

Others threw cold water on the idea of religious institutions receiving charter school funds.

The Every Student Succeeds Act, the current version of the federal education law, defines a charter school as a public school that “is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution.”

“As public schools, charter schools must be non-religious in their programs, admissions policies, governance, employment practices and all other operations, and the charter school’s curriculum must be completely secular,” previous administrations, including the George W. Bush administration, have said in charter school guidance. “As with other public schools, charter schools may not provide religious instruction, but they may teach about religion from a secular perspective. And though charter schools must be neutral with respect to religion, they may play an active role in teaching civic values. The fact that some of these values are also held by religions does not make it unlawful to teach them in a charter school.”

The Montana case centers on the religious freedom of the parents who direct the scholarship funds, not the schools that receive them, said Jeanne Allen, the CEO of the Center for Education Reform, an organization that supports expanding school choice. So it’s not likely that something as dramatic as Breyer suggested would result from a ruling in the parents’ favor, she said.

Still, throughout the arguments, both justices and attorneys bounced back and forth in discussions of whose religious liberty was at stake in the case: the parents who direct the scholarship funds, the contributors who receive the tax credits, or the religious schools that may accept students using those scholarships. How the court defines the religious liberty issue may be a factor in how expansively its ruling is applied to future church-state questions.

Some Precedent

There is some precedent for the discussion of religious organizations and charter schools. But even charter schools with loose connections to religious groups insist they do not offer religious instruction.

Some Catholic schools have closed and allowed nonreligious charters to open in the same place, leasing their buildings from the church and sometimes even operating under a similar name.

In 2018, a network of struggling Memphis parochial schools that served mostly low-income students closed, and the president of a local Catholic university formed a charter school organization to operate those schools in its place. The schools faced questions when a morality clause in their building lease forbid them from teaching anything considered “gravely immoral” by the Catholic Church. Federal officials later said that clause did not violate federal rules.

And charter schools with religious ties expand beyond Catholic-school conversion:

• Networks of charter schools in the U.S. have been linked to a Turkish cleric in news reports, though many of those schools deny those affiliations and insist they provide no religious teachings to their students.
• In New York, a Hebrew-language charter school operator is supported by philanthropists who have contributed millions of dollars “to programs dedicated to boosting Jewish identity among young people,” the New York Times reported in 2008. The school offers lessons in Hebrew language and culture, but insists teachers cannot “encourage or discourage religious devotion.” Similar schools operate in Florida.
• The American Civil Liberties Union sued Tarek ibn Ziyad Academy, a now-defunct Arabic language charter school in Minnesota, arguing that it promoted Islam using public funds. The school later closed and settled with the ACLU.
• A Greek culture charter school in Brooklyn shares a building with a private Greek Orthodox school.

Public Interest

Some are doubtful that charter schools operated by faith-based or faith-affiliated organizations can avoid any kind of religious teaching or influence.

“The game they are playing is that you can separate who runs a school from what happens in a school,” said Benjamin Justice, an education professor and historian at Rutgers University who studies the history of religion and public schools. “If you even think abut that for more than a minute, it becomes apparent that that is a very, very fictitious line of separation.”

States have an interest in limiting public funding to religious schools that is not driven by malice or unlawful discrimination, Justice argued. In the 19th century, when people were more scattered in rural areas, “you really had to have a school that served all religious groups or you couldn’t have a school,” he said.

And schools also serve a public interest of encouraging the exchange of ideas and social harmony, Justice said.

“How can you create a citizenry when you are offering a system of education that doesn’t even teach children that there is a shared reality?”

Photo: Getty