Exploring the Contemporary Divide in the Charter-School Movement: A Closer Look

**In early June, a state board in Oklahoma did something that seemed obviously unconstitutional:** It approved a new, openly Catholic charter school. Students at the proposed St. Isidore of Seville Catholic Virtual School would receive religious instruction, and the online school would participate in “the evangelizing mission of the Church,” according to St. Isidore’s application to the state. By law in Oklahoma, and in every state where charter schools are allowed, charters are public schools—they receive government funding and some state oversight, and they cannot discriminate against students and staff. St. Isidore would apparently be public, too, raising questions about whether it violates the First Amendment’s separation of church and state.

If St. Isidore opens next year as planned, it would represent a profound shift in American education, and could potentially allow for religious charters to open across the country. It would also represent a remarkable change for the charter-school movement itself, which has long tried to rally support for charters on the grounds that they are public.

In the three decades that charter schools have existed, some have opened with an emphasis on, say, “classical” values or Hebrew language and culture, but none has been explicitly religious. And though the charter movement has always had broad appeal on the left and right, including from skeptics of public education and people who believe that charters introduce healthy competition into the public sector, supporters have generally agreed that charters should be secular. Now new players such as the Archdiocese of Oklahoma City are pushing the movement in a radically different direction, arguing that charter schools can offer religious education.

Some longtime advocates of charter schools fear that such a dramatic shift could threaten support for charters at a time when many prominent Democratic leaders, including President Joe Biden, have become more critical of them. “This is probably the biggest challenge to the intent and origins of chartering that I’ve seen in 30-plus years,” Ember Reichgott Junge, a former Democratic state senator who wrote the country’s first charter-school law, in Minnesota, told me.

**How did the movement get to this point?** The story is complicated, often intertwined with the school-voucher movement, and still evolving. A group of parents and clergy, represented by organizations such as the ACLU and Americans United for Separation of Church and State, has already filed a lawsuit to stop St. Isidore from opening, moving the issue into the court system. If the Supreme Court takes up the case, the justices will have to consider, and could finally resolve, a bigger question that underlies the debate over St. Isidore: Are charters truly public?

When Minnesota passed the country’s first charter-school law in 1991, early supporters pitched charters as a new type of public school, one paid for largely with tax dollars but free of the control of local school districts. Reichgott Junge believed that charters would spur innovation within the public-school system. Ted Kolderie, a political theorist who also was involved in the law’s passage and later promoted the concept across the country, described charter schools as a “second sector” of public education. In California, which passed its own charter-school law the next year, Democratic State Senator Gary K. Hart argued that charter schools represented “a major education reform” that would provide families with more choices “while maintaining our traditional democratic commitment to public schools.”

Minnesota’s statewide teachers’ union, however, warned that charters would create an “additional, untested, competing system.” Some educators viewed charter schools as a disguised form of school-voucher programs, which allow families to use tax dollars to pay for private education. Just one year earlier, Milwaukee had started the country’s first modern voucher program. Albert Shanker, then the president of the American Federation of Teachers, briefly supported charters before lumping them in with vouchers as a “gimmick” that would do little to improve public education.

**Despite those early objections, charter schools soon spread from Minnesota to much of the rest of the country** with support from both Democrats and Republicans. In some cases, charter schools were offered up as a less controversial alternative to vouchers. Milwaukee’s school-voucher program and one in Cleveland, the first two in the country, were caught up in court battles for years over the participation of private religious schools. (Milwaukee’s voucher program started with secular private schools before it expanded to include religious ones, while Cleveland’s included sectarian schools from the beginning.)

Still, charter schools raised some legal questions of their own. In one early lawsuit from 1994, members of Michigan’s state board of education, backed by teachers’ unions, challenged the constitutionality of the state’s new charter schools. “The legislature does not have the right to define public schools in any way it desires,” one of the lawyers in the case charged. Eventually, the Michigan Supreme Court upheld the law and declared charters to be public.

Charter schools survived such early legal challenges and thrived over the following years, far outpacing school vouchers in popularity in state legislatures—in part, because they were secular and subject to some of the same accountability requirements as traditional public schools. As of 2021, charters served about 3.7 million students, or roughly 7 percent of America’s public-school students. The latest study from the Stanford University–based Center for Research on Education Outcomes found that charter schools have a slight edge over traditional public schools in test scores. The difference, however, was quite small, and some past studies have found that the effect of charters varies widely from school to school.

**The idea of a religious charter school started percolating** among some school-choice advocates after a 2002 Supreme Court case related to school vouchers. In Zelman v. Simmons-Harris, the Court ruled 5–4 that Cleveland’s voucher program didn’t violate the First Amendment’s separation of Church and state because of the role that parents played in directing where the public dollars were spent. Chester E. Finn Jr., then the president of the right-leaning Fordham Institute, published an article arguing that the case had done more than validate vouchers: It also raised the possibility of religious charter schools. Much like vouchers, he pointed out, charters rely on parental choice; a charter school doesn’t receive state funding unless parents choose to enroll their children there.

Finn’s argument didn’t gain much traction at the time—Reichgott Junge called it an “outlier view.” Many Democratic charter-school supporters were leery of being lumped together with supporters of vouchers, and religious charters still seemed like a stretch legally. In 2007, Lawrence Weinberg, a lawyer, and Bruce Cooper, an education professor, defended the idea of an emerging middle ground: In some states, an organization could be allowed to run a charter school that reflected the culture of a particular religion but did not “endorse the tenets of the faith,” as Weinberg and Cooper put it. The Ben Gamla Charter School in South Florida, for instance, soon offered students a curriculum focused on Hebrew language and history. Other charter schools opened with a focus on Arabic, Hmong language and culture, and Greek language. Some financially strapped Catholic schools, too, chose to convert to charters rather than close, keeping certain aspects of Catholic education while eliminating prayer and religious instruction.

**Two more recent Supreme Court cases have emboldened some advocates interested in greater state aid for private education.** In 2020, the Court’s conservative majority ruled in Espinoza v. Montana Department of Revenue that Montana couldn’t exclude religious private schools from participating in a voucherlike program that included nonreligious private schools; two years later, in Carson v. Makin, the Court ruled that private religious schools must receive public benefits offered to other private schools. In both cases, Chief Justice John Roberts framed the issue as one of religious discrimination. In his dissent in Espinoza, now-retired Justice Stephen Breyer suggested that the majority opinion could have broader implications: “What about charter schools?” he asked.

To some advocates of religious charters, the answer was that charter schools shouldn’t be considered public—and that state laws prohibiting religious charters were likely unconstitutional. After the Espinoza case, Nicole Stelle Garnett, a law professor at Notre Dame, argued in a widely read report for the right-leaning Manhattan Institute that, in most states, charter schools aren’t “state actors,” or entities acting on behalf of the government.+


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