What the First Amendment Says About Religious Charter Schools

Should government money be used to fund religious charter schools?

Editor’s Note: Recently, MinistryWatch President Warren Cole Smith wrote an editorial opposing the use of government funds for religious charter schools. You can find that editorial here. Today, we offer an opposing view, from the chief legal counsel for Alliance Defending Freedom (@ADFLegal) and counsel of record before the U.S. Supreme Court for the Oklahoma Statewide Charter School Board.

 OPINION—Our current public school system is failing many families. In particular, families of faith find the status quo sorely in need of improvement. People are seeking alternatives.

Home school, private school, and even charter schools have all increased in popularity. Though they are publicly funded, charter schools offer many students an attractive option with their niche focuses and proven academic success.

While there’s broad consensus that charter schools are a great alternative to public schools—particularly for families who live in rural areas or may not have the means to send their kids to private school—not everyone agrees whether there should be religious charter schools.

I get it. I understand why many people are wondering whether religious charter schools are constitutional.

On April 30, I argued before the nation’s high court in defense of religious charter schools. The nonprofit legal ministry I work for, Alliance Defending Freedom, represents the Oklahoma Statewide Charter School Board and defends the board’s decision to approve St. Isidore of Seville Catholic Virtual School’s participation in the state’s charter-school program.

Recently, MinistryWatch President Warren Cole Smith wrote that allowing religious groups to operate publicly funded charter schools would “weaponize religion as a political tool.” I respectfully disagree.

The state of Oklahoma set up a charter-school program and invited private organizations to run those schools. Oklahoma currently allows charter schools that specialize in diverse subjects such as Native American culture, environmental stewardship, foreign-language immersion, performing arts, and much more. Yet state law excludes only one set of groups and subjects—those that are religious. That’s unconstitutional discrimination based on religion. The First Amendment forbids singling out religion for worse treatment.

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St. Isidore isn’t exploiting its Catholic faith to receive government money. It is simply asking, as Justice Kavanaugh observed at oral argument, not to be treated “worse because [it’s] religious.” St. Isidore’s aim is to provide Oklahoma families with a high-quality, no-cost education option. It will use a curriculum that has been highly successful for students and families. Any family, regardless of their beliefs, can choose St. Isidore.

St. Isidore isn’t a part of the government. It’s a private, religious, nonprofit organization founded by two Catholic dioceses that have experience running successful schools. It’s not state controlled because it is run by a board of directors who aren’t appointed by the government.

If the Supreme Court were to declare St. Isidore to be part of the government, that would threaten religious liberty across the board. Faith-based groups provide a wide range of critical services to their communities: shelters for the homeless and victims of domestic abuse, foster and adoptive care, pregnancy care centers, and many others. These groups often contract with or otherwise receive financial support from the government to carry out their mission. That doesn’t make them government actors.

The state should give St. Isidore the same opportunity that other charter schools have to bring its distinctive approach to educating. From focusing on Cherokee culture to fine arts and college prep, Oklahoma charter schools have autonomy when developing curricula, drafting student and employment policies, and making operational decisions.

This gives Oklahoma parents much-needed educational options for their children. And it does not violate the Establishment Clause, contrary to what Smith suggests. When the government creates a program and invites private groups to participate, it doesn’t “establish” religion to treat religious groups equally to secular groups. This is especially true because no one will be required to attend St. Isidore. It is merely an option available to interested families. Ruling that St. Isidore must be treated equally would affirm the very sort of state neutrality toward religion the Constitution requires.

Smith also worries about government funds flowing to religious organizations like St. Isidore. But that already happens through the tax credit and voucher programs that Smith’s article seems to accept. The state-aid funding that St. Isidore will receive works much the same way. That money won’t go to St. Isidore unless parents choose it, and those funds consist of per-pupil aid tied to each student who attends.

Providing these no-cost options is critical because without them, far too many low-income families would not have access to high-quality education, let alone the high-quality religious education they seek. This case is about giving parents options. With the current education system failing families, parents need a variety of alternatives. The answer is more high-quality, no-cost educational options for families.

Hundreds of families, many of which are economically disadvantaged, have already signed up to attend St. Isidore. They want this option for their children. Singling out religious organizations for exclusion from the charter-school program sends the message that, in the words of Justice Kavanaugh at oral argument, “you’re no good because you’re religious.” The First Amendment stands firm against such religious discrimination. That’s why the Constitution requires that St. Isidore be allowed in the program.

Jim Campbell is chief legal counsel for Alliance Defending Freedom (@ADFLegal) and counsel of record before the U.S. Supreme Court for the Oklahoma Statewide Charter School Board.

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