Analysis: Opening the Door to Faith-Based Charter Schools

Andy Smarick: If every other nonprofit is allowed to run a public charter school, isn’t it anti-religious discrimination to exclude faith-based orgs?

Eamonn Fitzmaurice/The 74

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A little-noticed event in late 2022 destabilized a pillar of contemporary American K-12 education, namely that all schools considered part of the public system must be secular. Last December, the attorney general of Oklahoma issued an advisory opinion stating that, due to recent U.S. Supreme Court decisions, the state could no longer prohibit faith-based groups from operating charter schools. Catholic leaders seized the opportunity and applied to do just that; the state’s virtual charter board may vote on their application as early as next week. 

Not long after, in Arizona, one of the nation’s most successful charter operators announced it was launching an initiative to start faith-based classical schools. Though technically part of the private-school sector, these schools would be based on the organization’s charter-school model and would access public funding available via a new state program that gives education dollars directly to families. 

Though the efforts are distinct — the Arizona case brings faith-based education and public schooling closer while the Oklahoma case merges them — they are, in a sense, the logical conclusion of 30 years of choice-based reform. Backers and detractors, however, see “logical conclusion” very differently. Opponents might say they suspected choice advocates were fighting from day one to raze the wall separating church and state. Proponents might say this is an obvious, sensible consequence of American pluralism: Given the nation’s long history of faith-based nonprofits, once government engaged civil society in school operations via chartering, it was inevitable that religious groups would want to participate. 

Like so much today, this issue divides observers along political lines. Indeed, the idea deeply troubles many progressives. But those on the political left might consider whether they could support faith-based charters, even if just as a pilot program. 

Part of this consideration should be strictly pragmatic, as it pertains to keeping families engaged with the public school system. Opinion on public education is souring, with Americans now giving lower grades to schools both locally and nationally than before the pandemic. Today, only about one in five give the nation’s schools an A or B; only 21 percent of non-parents think American K-12 education is headed in the right direction. In 2022, Gallup found public satisfaction with K-12 schools was at its lowest level in more than 20 years.

Consequently, private school choice is on the march. Half or more of Americans support universal vouchers, tax-credit scholarships, and homeschooling. One survey found between two-thirds and three-quarters of adults support education savings accounts, vouchers, and charter schools when provided definitions. 

Today, there are about 75 state-level private school choice programs and new programs have recently been passed in Arkansas, Florida, Oklahoma, Iowa, and Utah, with progress in Idaho, Kansas, Nebraska, and Texas. These policies are being fueled by a growing array of options. Today, we have private schools, magnets, charters, pods, hubs, various homeschooling models, online schools, hybrid homeschooling, microschools, dual enrollment offerings, tutoring, and more. Those concerned about the diaspora from traditional public education should appreciate that growing and diversifying options inside of the public system may be the best, if not only, way to respond to families’ interest in choice while preserving key elements of public schooling, like transparency, accountability, and a degree of democratic control.

The other consideration is more philosophical. Our current politics seem oblivious to the fact that one of the greatest challenges of American governing is figuring out how 330 million people with vastly different histories, traditions, and priorities can live together peacefully. The solution is not erasing our differences or discouraging the flourishing of diverse ways of life. Instead, we animate American e pluribus unum — “out of many, one” — by building systems that, first, allow different communities to be themselves and, second, help those different communities contribute to a broader common good. 

Faith-based chartering could fit this mold. It would invite faith-based groups to participate in school operation alongside secular nonprofits. It wouldn’t force anyone to attend a faith-based charter, but it would respect families eager to give those schools a try. Importantly, it would make such schools, in exchange for public dollars, follow public rules related to finances, operations, safety, and achievement. In total, then, it would contribute to a diversified set of schools that collectively work to serve all students.

What does a faith-based charter look like? 

Faith-based charters do not yet exist. But the idea has percolated for 20 years, with some writers suggesting how it might be possible and why it is worth pursuing. That conversation, however, never went far because the explicit language of state charter laws and federal education programs made clear that charters had to be secular. Moreover, a mountain of jurisprudence since the middle of the 20th century seemed to close the door on the concept: The U.S. Supreme Court held that public schools, as creatures of the state, could not be religious. 

Despite all that, the idea has had legs because it seems to make sense on a few dimensions. For example, dozens of state programs enable families to use public dollars to choose private faith-based schools. Why wouldn’t we allow some faith-based charters? Since those publicly funded private faith-based schools are free from most regulation, shouldn’t we support publicly funded faith-based schools that are subject to more oversight? Moreover, if a brand-new nonprofit with no experience running schools is eligible to run a charter, shouldn’t a centuries-old faith-based nonprofit with enormous experience running high-quality schools be eligible? 

If every other nonprofit is allowed to run a charter, isn’t it anti-religious discrimination to exclude faith-based nonprofits? 

What would a faith-based charter look like? A faith-associated nonprofit would apply to a charter authorizer. It would complete the same application as other interested operators, explaining its proposed curriculum, staffing, transportation plan, calendar, governance, and so on. It would explain how its school would meet various state requirements, for instance related to building codes and safety. It would develop student-performance indicators so the authorizer could hold the school accountable for results. If the application were approved, the school would secure a facility, hire staff, purchase books, and recruit students. It would have to meet operational, financial, and governance milestones prior to opening. Once operational, it would be subject to regular performance monitoring by its authorizer. If it failed to live up to its side of the contract, its charter would be revoked. Its primary difference from other charter schools would be its use of faith elements, for instance readings from its texts or teaching good behavior with reference to faith principles. As a public school, it could not discriminate against prospective students: Like all charters it would be open enrollment.

History repeating itself?

The idea of faith-based chartering may be jarring to those only familiar with public schooling over the last half century. But zooming out, we can see that America has frequently reconsidered the role that government and civil society play in schooling. We can also see that the state’s relationship with faith communities has been frequently redefined in education. Though the history is complicated, we can think of four distinct eras. 

In the colonial days and first decades of the republic, America had no system of public education to speak of. To the extent kids received formal schooling, it was generally through tutors, boarding schools, small town schools, or religious schools. The government’s role was miniscule by today’s standards, and the role of civil society, including faith-based groups, was substantial. 

The mid-19th century advent of common schools expanded the role of government. School boards would tax, hire teachers, purchase supplies, and more. Though these schools were “public,” they were seldom secular. Teachers often led prayers, and readings from the Bible were common. Interestingly, much of the resistance to this system came from minority religious communities that disapproved of how faith was taught; the debate was frequently about which Bible and prayers, not whether Bible and prayers. Indeed, the sense that many of these schools were unfriendly to religious minorities led to the growth of faith-based private schools, most notably Catholic schools. Therefore, this second era can be understood as one of marked growth for religiously tinged government-run public schools and faith-based private schools. 

By the middle of the 20th century, Supreme Court rulings were separating faith and government in education. Prayers and Bible-reading were prohibited in public schools, and faith-based private schools were prevented from receiving most direct public support. We can think of the second half of the 20th century as bifurcating K-12: in this third era, public schools were almost always run by the government and had to be secular; faith-based schools were private and ineligible for direct state aid. 

The fourth era began in the early 1990s with two policy reforms. First, chartering enabled nonprofits to run public schools. The implications were profound. No longer did “public school” mean “government-run school.” A chartered public school would be operated by a non-government body but function within a system of public accountability and funding. The public system would now comprise an array of operators. Second, private school choice programs, like vouchers, enabled families to direct public dollars to secular and faith-based private schools (vouchers were deemed constitutional in 2002).

These two reforms can be seen as leading in the same direction: more families had more ability to choose from among more types of schools. Seen another way, they produced a peculiar outcome: We now have some largely autonomous, nonprofit-run, government-funded schools we call “public” and some largely autonomous, nonprofit-run, government-funded schools we call “private.” The former are charters; the latter can be faith-based schools supported by voucher-style programs. In practice, this means a Montessori, project-based-learning, or classical-education organization could run a school in either category. A faith-based group, however, can only be found in the latter. To put a fine point on it, a faith-based school can receive substantial public funding (e.g., via vouchers) while remaining free of most government oversight, but it can’t join the charter sector and accept more public accountability.  

In theory, we could make this system more coherent. We could require all government-run public schools to remain wholly secular while allowing all nonprofit-run schools that submit to public accountability to receive public funding. All nonprofit-run schools that wanted to remain free of most regulation could stay in the private sector and forgo public dollars. As recently as 10 years ago, this kind of fundamental shift would’ve faced two obstacles — one popular, one legal. First, there was little appetite for big change; public opinion supported local public schools, and most families participated in that traditional system. As recently as 2016, 70 percent of parents gave their local public schools an A or B; that year, the federal government reported only 10 percent of K-12 students were in private schools. But that system has fragmented thanks to school-choice programs, new models of education delivery, and the Covid era. EdChoice estimates that only 64 percent of students today attend their assigned traditional public schools. The rest are choosing another district school, a charter school, a private school, a magnet school, an online school, a homeschool, or something else. Families are increasingly accustomed to finding options tailored to their kids’ needs. Fewer families see the neighborhood public school as the best, much less the only, option. 

Second, the language of education programs was based on a constitutional interpretation that kept faith entirely out of the public system. Since the First Amendment was understood to require that government functions remain secular, and since the provision of public education was a government function, faith-based schools were deemed ineligible to be part of the public system. Hence the requirement that charter schools, which are public schools, remain secular. But this is no longer an obvious legal conclusion. In short, public opinion changed in ways that make faith-based charters a policy possibility, and the Supreme Court’s jurisprudence changed in ways that make faith-based charters a legal possibility. 

Supreme Court precedent

Missouri provided grants to nonprofits wanting to resurface their playgrounds. State policy, however, prevented religious entities from accessing those funds. The Court, in Trinity Lutheran v. Comer (2017), ruled that prohibiting a faith-based group from enjoying a public benefit simply because it is faith-based is unconstitutional. Three years later, the Court expanded the doctrine in Espinoza v. Montana Department of Revenue (2020), declaring unconstitutional that state’s policy of prohibiting faith-based schools from participating in a school-choice program. A third decision would do even more to boost the prospects of faith-based charters.

Because Maine is a sparsely populated rural state, some of its school districts don’t have high schools. For generations, the state provided funds to students in those districts so they could pay to attend a high school elsewhere. Maine permitted just about all schools to participate—public schools, private schools, schools in other states, even schools in other countries. But one type of school was ineligible: faith-based schools. Maine justified its policy by saying it was funding other schools to essentially function as Maine public high schools, and since public schools must be secular, all participating schools must be secular. In Carson v. Makin (2022), the Court disagreed: Once the government makes a benefit available, it can’t declare faith-based groups ineligible simply because they are faith-based. 

Addressing those charging that the Court was forcing states to fund religious groups, Chief Justice Roberts’ Espinoza decision explained that Montana didn’t have to create a program that funded nongovernmental organizations. But once the state did so, it couldn’t single out faith-based groups for exclusion. The same logic applies in Trinity Lutheran and Carson: states don’t have to create programs for nonprofits to resurface playgrounds or for students to attend out-of-district high schools, but once they do, they can’t single out faith-based groups for exclusion. We should expect a Roberts opinion ruling that states aren’t obligated to allow charter schools, but once they do, they can’t single out faith-based groups for exclusion. 

A looming decision for progressives

Opponents of faith-based charters have one major legal argument remaining. There is a grey area between direct government action and government support of varied nonprofits. That is, government activity must be secular while government benefits must be accessible to faith-based organizations. But what happens when the two concepts are mixed — when governments enlist nonprofits to carry out government functions? Since it’s a government-related activity must the performing entity be secular? Or since the organization is a nongovernment body must the government allow it to be faith-based? This is the “state action doctrine.”

In short, if the nonprofit is clearly carrying out a government function and/or is controlled by the government, then its actions can be attributable to the government, meaning it functions as a state actor and must be secular. Opponents of faith-based charters will argue that public schooling is a government activity and that states use chartering to enlist nongovernmental bodies to carry out this state duty. Proponents will argue that education is not solely a government function (nongovernmental bodies have run schools for eons), that chartering was created to enable nonprofits to operate schools different than government-run public schools, and that faith-based colleges aren’t considered state actors even when they receive government aid. University of Notre Dame professor Nicole Stelle Garnett has ably made this very case.

Though the specific question of whether charter schools can be faith-based has not yet been litigated, a federal appeals court recently considered in a school-uniform case whether charters are state actors. The majority held that a North Carolina charter is a state actor, though several judges dissented. The Supreme Court is considering whether to take up the school’s appeal. Further complicating matters, in February, the new Oklahoma attorney general withdrew his predecessor’s advice on faith-based charters. The Governor, Kevin Stitt immediately replied, arguing that the first advisory opinion — supporting faith-based charters — was correct. And at the national level, choice advocates are not of one mind when it comes to expanding the charter tent to include faith-based groups. Obviously, this issue remains in flux politically and legally. But never in the 30-year history of chartering has the approval of a faith-based charter school seemed so possible.

Hence the dilemma for America’s political left. Since the advent of school choice in the early 1990s, the default position for many progressives has been opposition. Standing up for public education, many believed, meant standing against school choice. Even Democrats’ Bill Clinton-era openness to charter schools has waned; today, only 38 percent of Democrats support charters. Even putting aside moral and philosophical questions, the left’s opposition increasingly appears politically imprudent. Families are experimenting with and appreciating educational alternatives, and states are creating programs that advance school choice. 

It’s not inconceivable that five years from now there will be more than 100 state-level choice programs supporting millions of students in private schools, homeschools, and other options outside of the public system. The left’s strategy could be to simply vote “no” as this wave swells. An alternative is to support more school options and increased parental power inside a public system of transparency and accountability. That would mean sitting down at—not walking away from—the negotiating table on the issue of faith-based charters. When the Supreme Court eventually rules that states with charter school laws must permit faith-based charters, the left will be glad that they had a hand in crafting those programs instead of standing on the sidelines.

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