Tuesday, the U.S. Supreme Court held that Maine’s exclusion of faith-based schools from a tuition-assistance program for students in rural school districts violates the First Amendment’s free exercise clause. The reason why is clear: “The State pays tuition for certain students at private schools — so long as the schools are not religious.”
Critics, including the dissenting justices, erupted in protest. Justice Sonia Sotomayor complained that the “Court continues to dismantle the wall of separation between church and state.” Justice Stephen Breyer predicted an increased “potential for religious strife.” Left-leaning commentators warned that the ruling might require states to operate religious schools.
Not true. This decision, in Carson vs. Makin, is the third decision in five years to invalidate the exclusion of religious schools from public-benefit programs. The opinion breaks no new doctrinal ground, but instead represents a straightforward application of what the majority calls the “unremarkable principle” that a “State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
Nor does the ruling require states to subsidize students attending private religious schools — except when it specifically chooses to subsidize students attending private secular schools. The majority makes clear that “a state need not subsidize private education…[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
For the private-school choice program, Carson will have little immediate impact. Over half of states now have programs enabling children to attend a private school, and all but two of them — Maine and Vermont — sensibly and voluntarily include religious schools. The decision does, importantly, clear a path for the further expansion of private-school choice by defanging state establishment clauses that purport to prohibit support of religious schools.
But private-school-choice programs, which enroll fewer than 1% of U.S. schoolchildren, are only the tip of the school-choice iceberg. The elephant in the room is how this reaffirmed non-discrimination principle will now be applied to charter schools.
Authorized in 44 states and D.C., charter schools are privately operated but publicly funded and universally designated by law to be “public schools.” Charter schools enroll nearly 3.5 million students, or just more than 7% of all public-school students. All states require that charter schools to be “secular;” many prohibit religious institutions from operating them.
The constitutionality of laws prohibiting faith-based charter schools was in question before this case. Indeed, Breyer flagged the issue in his dissent in an earlier case, Espinoza v. Montana, asking, “What about charter schools?” He reiterated his question in Carson, lamenting, “What happens once ‘may’ becomes ‘must’?…Does it mean that…charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
The answers to Breyer’s queries turn on a complex legal doctrine unrelated to religion, called the “state action doctrine,” which boils down to the question of whether charter schools are, for constitutional purposes, “public” or “private” schools. Under the state action doctrine, privately operated entities like charter schools are bound by the federal Constitution only in those rare instances they are so pervasively controlled by the government that their actions are effectively the government’s actions.
This question is pivotal because the Constitution prohibits states from operating religious public schools but permits them to provide public funds for children to attend religious private schools (and requires them to whenever such funds are provided to attend non-religious private schools).
So if charter schools really are public schools — that is, state actors — they must remain solely secular. If they are truly private and independent, but merely state funded, then there is no constitutional justification for prohibiting them from teaching religion. Earlier this month, the U.S. Court of Appeals for the Fourth Circuit ruled, over vigorous dissents, that North Carolina charter schools are state actors; previously, the Ninth Circuit Court of Appeals found that Arizona charter schools are not.
Charter schools defy easy categorization, and it could be years before the Supreme Court weighs in on the issue. But I have previously argued that in most states, charter schools ought to be treated as private schools for federal constitutional purposes, regardless of the fact that state laws call them “public schools.” They are, after all, privately operated and freed from many of the regulations governing district public schools. That’s the whole point of their existence. Moreover, charter schools, indisputably, are schools of choice.
If these two things are true, then charter schools are essentially programs of private-school choice, which Carson makes clear not only may permit religious charter schools but must permit them. That does not mean that religious schools must, should, or will seek authorization to operate and receive funding as charter schools. But it does mean that a strong case can be made that they can’t be barred from doing so because they are religious.
Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame.
