The U.S. Supreme Court (SCOTUS) announced on January 24, that it will hear the case about the proposed Oklahoma Catholic charter school. You can read about the announcement in the Washington Post and the New York Times, as well as read the short SCOTUS announcement and related documents here. It is impossible to predict how this will play out, but the Supreme Court agreeing to hear the case is a significant interim win for the advocates of religious charter schools as they move down their desired path toward an expanded role of religion in the public sphere.
That said, the Supreme Court heard a problematic case from North Carolina last year and eventually sided with leaders in the charter sector who worked hard to protect the public nature of charter schools in that case. That temporary victory aside, there are plenty of reason for people who support charter schools to be anxious about last week’s news.
NN4DA Has a Working Group on the Public Nature of Charter Schools
The NN4DA has a working group on the public nature of charter schools that meets monthly. Our next call is scheduled for Monday, February 24 at 2:00 pm MST. I hope you can join us. Contact Alex Medler for details.
Organizational Statements
Various groups opposed to religious charter schools voiced their opinions immediately after the Court’s announcement.
Starlee Coleman, President and CEO of The National Alliance for Public Charter Schools (NAPCS), commented:
“Charter schools are public schools that are part of states’ public-school systems. Like all public schools, charter schools are bound by the U.S. Constitution and are therefore not allowed to be religious schools. We agree with the Oklahoma Supreme Court’s June 25, 2024, decision that affirmed the unconstitutionality of religious public schools.”
Karega Rausch, President & CEO of NACSA released the following statement:
“The National Association of Charter School Authorizers (NACSA) has consistently affirmed that charter schools are public schools. They are a part of each state’s system of public schools and thus must ensure equal protection and equal access for all students. Students attending public charter schools must continue to enjoy the same civil and constitutional rights and protections as any peer attending a district-run public school.”
The following group statement was released by Statement by Americans United for Separation of Church and State, the American Civil Liberties Union, the Education Law Center, and the Freedom From Religion Foundation:
“The law is clear: Charter schools are public schools and must be secular and open to all students. The Oklahoma Supreme Court correctly found that the state’s approval of a religious public charter school was unlawful and unconstitutional. We urge the U.S. Supreme Court to affirm that ruling and safeguard public education, church-state separation, and religious freedom for all. Oklahoma taxpayers, including our plaintiffs, should not be forced to fund a religious public school that plans to discriminate against students and staff and indoctrinate students into one religion. Converting public schools into Sunday schools would be a dangerous sea change for our democracy.”
Premature Analysis
The fact that the Court granted review in the case when there are no significant conflicts among the lower courts on this question has raised eyebrows among some observers. In other “inside baseball,” according to the SCOTUS Blog:
“The justices fast-tracked the briefing schedule for the cases, which will allow them to be argued during the last week of the court’s April argument session – the final regularly scheduled session of the term – with a decision to follow by late June or early July.”
Interestingly, Supreme Court Justice Amy Coney Barrett, a former University of Notre Dame professor, appears to have not participated in this decision, which would presumably have implications for whether Justice Barrett would be involved in later action by the court.
There is no official word on the reason for her recusal, but online speculation discusses the involvement of Notre Dame in the case, specifically the contributions of a law clinic at the university, as well as the close personal connections between Justice Barrett and Nicole Garnett, the Godmother of one of Justice Barrett’s children. Garnett, who is not listed as party to the suit, is widely thought to have helped the charter applicant and its supporters and has been active in advocating for the underlying legal strategy the case is following.
Long-Term Political Implications if the Court were to Side with the Catholic School
I will write more about this later, but if the Supreme Court were to eventually rule in favor of religious charter schools, the disruption to the sector would be tremendous. The relative success of charter opponents to shift public opinion and win state legislative fights that harm the sector over the last decade disappear into trivial insignificance when compared to the potential scale of the impact a problematic decision in this case would have on the charter sector. About 40 percent of the charter sector and its growth over the last decade is in blue states, which might feel compelled to ban all future charter schools, or even to shutter all existing schools.
Despite decades of intense political action by charter opponents to ban new charters and to close existing schools, the sector has continued to grow, albeit a lot more slowly in the last decade. Existing charter schools close at rates that are lower than they have been in years. The charter opponents have not been able to enact policy that leads to closure of many existing schools. Red states have been advancing charter opportunities, despite this opposition.
Ironically, the groups pushing the strategic litigation to advance the cause of religion’s role in the public sector are poised to unleash (prompt, encourage, or facilitate – pick your own verb and its connotations) more damage to the charter school sector than charter opponents could have ever imagined.