Applicant: HI, we’d like to apply to start a charter school.
Authorizer: Great. Thank you for your interest. What’s the name of the nonprofit that will be submitting the application?
Applicant: St. Mary’s Community Services
Authorizer: St. Mary’s? Is that a religious organization?
Applicant: Yes, it is. We are a Catholic entity. We’ve been providing support to low-income families in the city for more than a century. We’d like to start a charter school so that we can help more young people.
Authorizer: I’m sorry, our state law explicitly prohibits religious organizations from running charter schools. We won’t be able to consider your application.
Applicant: Hmm. Just so I’m clear: You will accept applications and consider proposals from all nonprofits except those with religious affiliations?
Authorizer: Yes, that’s correct.
Applicant: But I read the recent Espinoza decision, and the US Supreme Court ruled that state governments can’t use an organization’s faith-based status as a reason to exclude its participation in a government-supported educational program. That kind of blanket prohibition on religious groups violates the Free Exercise Clause by punishing organizations for their faith affiliations.
Authorizer: Espinoza was about religious private schools participating in a private-school choice program. That’s different than charter schooling. Charters are public schools.
Applicant: That shouldn’t matter. In the Espinoza decision, Chief Justice Roberts wrote, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The same logic applies here. Our state didn’t have to create a charter school law, but once it did, and invited nonprofit organizations to apply for charters, it opened up school operation to all types of nonprofits, including faith-based nonprofits.
Authorizer: That can’t be right. Any number of state and federal laws and court rulings make it clear that public schools are secular schools. In fact, there are many Supreme Court cases over the last several generations that separated public education from religion—like bans on teacher-led prayer and Bible readings.
Applicant: That’s all true. But those decisions were handed down before charter schooling, back in the days when there was just one public-school provider in each geography. One government body—the school district—ran all of the area’s public schools. At the time, it was reasonable to hold that allowing faith into K-12 public education would run afoul of the Establishment Clause. That is, the government would be promoting a particular religious tradition in a monopoly public school system—and the Court decided that was unconstitutional. But chartering changed all that.
Authorizer: Why would chartering change any of that?
Applicant: Because the Court was historically concerned about the government’s operation of faith-based schools. But the Court has long recognized and protected private, including religious, non-state schools. Charter schools are not operated by the government. They are part of civil society, run by independent bodies. Calling them “public” doesn’t mean they are government entities that would establish a state religion.
Authorizer: But, for decades, we have understood public schools as completely secular. We have laws saying that public schools are secular. And our state has a Blaine Amendment that prohibits its government from sending state money to religious schools. Passing a charter-school law doesn’t automatically change that.
Applicant: I think it does. When our state passed a charter law, it essentially said, “Now public schools can be run by lots of different nongovernmental organizations.” The Zelman decision back in 2002 found a school voucher program that included religious schools to be constitutional because religious schools were among many different types of options available to families and because any public money that ended up in a religious school was directed there by parental choice, not by government order. So, we know there is no Establishment Clause concern if religious schools are part of a diverse system of schools receiving government support. And because of Espinoza, we know that a state can’t open up an education program to non-governmental bodies but then exclusively target faith-based groups for exclusion. Therefore, a charter-school program can’t exclude religious nonprofits because doing so would violate the Free Exercise Clause, and including religious nonprofits does not violate the Establishment Clause.
Authorizer: I’m not sure I agree with all of that, but for the sake of argument, I’ll accept that your organization has the right to operate a charter school. But that’s not the same thing as my accepting that your organization has the right to operate a religious charter school. So, we will consider your charter application if and only if your school is completely non-religious in its curriculum, pedagogy, advising, and more.
Applicant: Wait. What?
Authorizer: I also read the Espinoza decision! The Court recognized an important distinction between “status” and “use.” It struck down the Montana program because the state sought to exclude faith-based groups based solely on those groups’ religious status. The Court did NOT prohibit states from preventing public money from being used for religious purposes. In fact, the Court’s 2004 decision in Locke is key here.
Applicant: What do you mean?
Authorizer: In Locke, the Court upheld a government program that said state scholarships could be used at religious colleges but could not be used by students to pursue religious training. So religious institutions could participate in the program—they weren’t discriminated against because of their religious “status.” But the state was allowed to prevent the “use” of public money for religious instruction. We will therefore respect this “status-use” distinction: We will allow you to run a school—we won’t discriminate against your organization because of its faith-based status. But we will not allow you to run a religious charter school because we don’t want public money to be used to support religious instruction.
Applicant: But Justice Gorsuch argued in his Espinoza concurrence that we should not see a distinction between “status” and “use.” In his words, “The right to be religious without the right to do religious things would hardly amount to a right at all.” So, you can’t allow a faith-based group to run a charter school and then say we can’t do religious things.
Authorizer: I read Gorsuch’s concurrence, too! But it was just a concurrence, not the decision of the full Court. And no one else signed it—Gorsuch was alone among his colleagues in that view. In fact, the majority opinion notes that although some justices “have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status,” the Court was not examining that issue in this case. Espinoza was just about “status.” But, more broadly, remember that the Court’s decision in Espinoza did not overturn Blaine Amendments, and it did not overturn Locke. So, the Court very conspicuously preserved the right of states to maintain education initiatives that prevent money from going to religious groups for some types of religious activities. Since religion would be woven into everything your school does, we will deny your charter application because any state money running through a religious charter school would support religious activities.
Applicant: Hmm. I noticed that you authorize a classical charter school.
Authorizer: That’s right.
Applicant: And do you allow the “great books” tradition to inform that school’s hiring and instruction?
Authorizer: Of course.
Applicant: And for the Montessori school you authorize, do you allow the “child-centered” philosophy to inform its hiring and instruction.
Applicant: And for the social-justice charter school that you authorize, do you allow the texts of progressive and anti-racist writers inform its hiring and instruction?
Applicant: But you won’t allow a charter school to have its hiring and instruction be informed by a 2,000-year old tradition followed by over a billion people?
Applicant: Thank you for your time. In my view, your positions clearly single out religion for exclusionary treatment. In my view, that’s a violation of the Free Exercise Clause. I plan to file a lawsuit.
Authorizer: Our policies maintain public education as a secular enterprise, and, by preventing the entanglement of government and religion, follow the longstanding understanding of the Establishment Clause. We will see you in court.
Andy Smarick is a senior fellow at the Manhattan Institute.
Last updated August 4, 2020