By Supreme Court precedent basically says this about school choice: Including religious schools among options at which families can use a voucher or other government‐connected funding does not violate the U.S. Constitution’s Establishment Clause because families, not government, determine where the money is used. Going further, excluding religious options from private choice programs because they are religious is unconstitutional discrimination against religion.
Given the rationale behind the latter – government should not be able to single out religion for exclusion – there is a growing movement to allow religious charter schools. This effort just had its first test in Oklahoma, where the state’s Virtual Charter School Board rejected an application of a Catholic cyber‐charter school.
The rationale behind the religious chartering movement should be taken seriously. It is, indeed, a problem that religion automatically excludes someone from establishing a charter. But unlike programs such as education savings accounts and vouchers, in which families decide which private options to use, chartering would significantly entangle the government with religion.
Charters are, by definition, public schools, and with the exception of being able to seek out authorization from a private college or university in Oklahoma, they must be authorized to exist by government entities. As the Oklahoma charter law states (italics added):
For purposes of the Oklahoma Charter Schools Act, “charter school” means a public school established by contract with a board of education of a school district, an area vocational‐technical school district, a higher education institution, a federally recognized Indian tribe, or the State Board of Education pursuant to the Oklahoma Charter Schools Act to provide learning that will improve student achievement and as defined in the Elementary and Secondary Education Act of 1965, 20 U.S.C. 8065.
The danger of entangling religion and government when government decides which schools can exist is real. Most directly, an authorizer might reject a charter application because it is religious, or of a disfavored religion. But even if that were not the motive, it could easily be suspected, with religious applicants wondering if their religious status led to their rejection, and possibly to open accusations of religious animus. On the flip side, a non‐religious applicant that was rejected might point to a religious one that succeeded and suspect religious favoritism by the authorizer.
This is very different from private school choice, in which government does not decide which schools can exist and families freely choose among religious and secular options.
There is also more of a policy than legal reason to resist religious chartering. There is significant evidence that charter schools – seemingly private schools without tuition – end up enrolling students who otherwise would have attended private schools. Religious chartering would carry a strong incentive for private schools to give up much of their autonomy in exchange for the financial security of being “free” public schools. But that could well be a net loss of choice: Yes, it could make more schools available to families, but also constrain what those schools could do or teach, making each one a less meaningful option.
If the goal is more freedom in education, choice supporters should put their resources into advancing private choice, such as the universal programs that have ballooned over the last few months. It avoids government entanglement concerns while fostering much more true choice. Indeed, as Shaka Mitchell of the American Federation for Children just argued, charters should be looking to become private schools, not vice versa.
It is understandably irksome that religious providers get boxed out of charter schooling. But it occurs for decent legal reasons, and points us in the right direction: funding following the choices of families, not government deciding which schools can exist.
