Big Education Issues at Stake as Supreme Court Hears Religious Charter Case

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In a case with far-reaching implications for the nation’s education system, the U.S. Supreme Court on Wednesday will consider whether denying a charter contract to an Oklahoma Catholic school qualifies as religious discrimination under the First Amendment. 

But Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, is less concerned about such “ivory tower” questions. She’s worried about whether the nation’s nearly 8,000 charter schools will be able to pay their bills. St. Isidore of Seville Catholic Virtual School, backed by the Trump administration, argues that it’s essentially a private organization. If the court agrees, it could disrupt funding to charter schools across the country. 

“Every single state constitution in this country requires per-pupil funding to be spent only on public schools,” Coleman said. The argument that charter schools are private, she said, could “turn off the money that they want.”

In recent months, the Alliance has been bracing for a decision that could throw the charter sector into what Coleman called “operational uncertainty.” If the court declares that charters are not “state actors,” she said, federal and state funding for the schools, which serve nearly 4 million students, could be in jeopardy. Red states looking to expand school choice may be eager to sort out the legislative challenges and potential lawsuits that follow. But blue states, where leaders already want to limit charter growth, might be more reluctant. 

“I live in Texas. We’ll figure it out,” she said. But if states like New York, California and Massachusetts stop funding students at charter schools, Coleman asked, “Where do those kids go?”

In Colorado, state funding covers 98% of costs for the roughly 1,000 students who attend Loveland Classical Schools, said Executive Director Ian Stout. Without that funding, the two sites would likely have to close. If he had to charge tuition, most families, Stout said, couldn’t afford it. 

The Alliance warns of another scenario: If the court rules charters are private, school districts could just absorb existing charter schools to keep them public, or at least add more government oversight. But that would mean the loss of flexibility that has defined the sector since charter schools began in 1991.

“As public charter schools, we knowingly embrace that grand bargain —  public funds and local autonomy for accountability,” Stout said. Giving that up, he said, “would be counterproductive to the original intent of school choice.”

It’s already challenging to run charters in a progressive states like California, where the politically powerful teachers union blames charters for enrollment loss in district schools, said Rich Harrison, CEO of Lighthouse Community Public Schools. The network of four schools serves low-income minority students in East Oakland. If St. Isidore wins, he wonders if the public view of charters overall would suffer. 

“Operators like us, who are trying to do really important work in urban blue states, are going to be faced with much more scrutiny,” Harrison said. “We’re going to be lumped into this agenda on the right, which isn’t helpful at all for the communities we serve.”

‘Against their wishes’

Derek Black, a constitutional law professor at the University of South Carolina, agrees the financial fallout from a decision in favor of St. Isidore could be great. But instead of states abandoning charter schools, he’s concerned the court could force “states to fund [religious] schools against their wishes.”

He argues that because charters are “state actors,” one with an explicitly religious mission would violate the First Amendment’s Establishment Clause. 

Even if the decision falls in their favor, St. Isidore’s leaders have already decided not to open this fall. A late-June ruling, they said, wouldn’t give them enough time to enroll families in the online program, hire staff and make other preparations for the 2025-26 school year.

But other advocates for religious charters are getting ready to act if the court opens the door to private charter schools.

“I would love to be able to apply for 100 Jewish religious charters,” said Peter Deutsch, a former Congressman from Florida and founder of the Ben Gamla network of Hebrew language charter schools. 

He dismisses concerns from the Alliance that a ruling in favor of St. Isidore would cause states to turn their back on charter schools, calling them “an integral part of the American educational experience.”

While a Democrat, he agrees with conservatives that charter schools can practice religion. Such a ruling, he said, would “be transformative.” The vast majority of non-Orthodox Jewish students currently don’t receive religious education. 

“This has the potential to literally change the Jewish community in America in a significant meaningful way — more so than anything in my lifetime,” he said.

St. Isidore promised to accept students of any religion even though it plans to fully teach the Catholic faith. But Deutsch said Orthodox Jews might have a problem with accepting those who don’t follow their religion. 

“There is definitely a question of an Orthodox school allowing non-Jews to be in their school,” he said. “I don’t know how they’re going to deal with it.” 

Leaders of the Catholic church support St. Isidore’s argument. In its brief to the court, the U.S. Conference of Catholic Bishops argued that educating students is “not a traditional, exclusive public function” and that in early American history, private, religious schools worked with the government to provide schooling. 

The brief also touted recent results on the National Assessment of Educational Progress showing that Catholic schools perform higher in math and reading than public schools. The “data shows why Oklahoma would want to contract with a school like St. Isidore for charter-school services,” the brief said.

But some Catholic school leaders have strong reservations about how a ruling in favor of St. Isidore would impact religious schools.

Greg Richmond, superintendent of the Archdiocese of Chicago Catholic Schools, said religious school leaders that want to open a charter should brace themselves for giving up some control in exchange for public funds. As the founder of the National Association of Charter School Authorizers, he’s intimately familiar with how the system works. 

“It’s not going to be just an infusion of cash,” he said. 

In a February post for the Charter Folk blog, he described scenarios that could create dilemmas for religious leaders. Could Catholic charters punish students for not attending mass? Could they fire a teacher who announces in class that he’s an atheist? He answered “no,” explaining that such outcomes would create “a lite version” of existing parochial schools.

“I actually don’t think anyone really knows how it would play out in this country,” he said. “I’m sure the courts would get pulled in again and again to mitigate some of the conflicts.” 

Disability rights advocates also warn that students could lose special education services if  charter schools are ruled to be private. St. Isidore’s handbook says it might not accept students with disabilities whose services would “significantly alter the regular classroom process,” and that services or accommodations for students can’t be “in opposition to church teaching.”

Under the Individuals with Disabilities Education Act, school districts provide “equitable services,” like speech therapy, to students in private schools. Parents who choose private schools can also request a district to pay for an evaluation. But there’s no guarantee that the private school will accommodate students’ needs. 

“There’s no individualization,” said Jennifer Coco, interim executive director of the Center for Learner Equity, a nonprofit that advocates for students with disabilities in charter schools. “Whenever something that was public becomes private with regards to children, rights under IDEA, by and large, do not follow.” 

However the Court rules, the first state to grapple with its effects will be Oklahoma, where the legal battle began. Even before the justices agreed to hear the case, Barry Schmelzenbach, director of the Oklahoma Public Charter School Association, began talking with lawmakers about legislative fixes that might be necessary. He wants to prevent a situation in which “a system providing education for 50-some thousand students across the state all of a sudden can’t make payroll” because it’s been cut off from public funds.

But Schmelzenbach finds reassurance in the state’s strong history of support for school choice.

“Neither side of the debate wants to see existing charter schools harmed,” he said. “If our funding goes, then there’s also no funding for new charter schools — sectarian or not.”

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