The future of charter schools rests with Supreme Court

OPINION:

On April 30, the U.S. Supreme Court will hear oral arguments in an important First Amendment case that could hinge on the meaning of the word “public.”

The case could also decide the future of charter schools. Will they remain tuition-free alternatives to traditional K-12 public schools, with their own curricula and culture, or will they become indistinguishable from the one-size-fits-all government-run schools?

The case, St. Isidore of Seville Catholic Virtual School v. Gentner Drummond, attorney general of Oklahoma, involves an application by the Catholic Diocese of Tulsa and the Archdiocese of Oklahoma City to open and operate a virtual charter school in Oklahoma. The school would be open to students of any or no faith, but religious instruction would be part of the curriculum.

The statewide virtual charter school board approved the charter application. Still, the state Supreme Court, on appeal, overturned that decision because granting religious institutions the right to operate a “public charter school” supposedly would violate the separation of church and state implied by the First Amendment’s establishment clause.

The other side points out that the establishment clause says nothing about the separation of church and state — only that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Many people conveniently ignore that second part.

Indeed, as the Supreme Court made abundantly clear in its 2022 decision in Carson v. Macon and in Trinity Lutheran Church of Columbia v. Comer (2017), government cannot deny “generally available” benefits to an individual or institution solely because of its religious identity. Accordingly, Oklahoma should not be able to deny the St. Isidore of Seville charter school application simply because the applicants are religious nonprofits.

Which brings me to the central question in St. Isidore of Seville Catholic Virtual School v. Drummond: Are charter schools constitutionally indistinguishable from traditional public schools, or are they legally and practically different?

The surface answer, cited by supporters of the Oklahoma Supreme Court decision, is that they are constitutionally indistinguishable. After all, in the legislation authorizing charter schools, virtually every state refers to them as “public charter schools.” Like other public schools, they must accept all students within space limitations, don’t charge tuition and must meet state performance standards.

They also have significant differences. Charter schools, currently authorized in 46 states and the District of Columbia, are not run by local school boards or bound by contracts that boards may have with teachers unions. They have their own curricula. They do their own hiring. They are explicitly exempted from most rules and regulations that apply to government-run schools. Most important, they are legally controlled by private, independent nonprofit organizations, not the government.

Moreover, unlike most public schools, charter schools risk being shut down when they fail to meet state performance standards. Traditional public schools typically receive funding increases and teacher raises.

Yes, they’re called “public charter schools” because their doors are open to all students, and the states help finance the students’ education (not at the same level, I might add, that they fund traditional public schools). But are they, in legal parlance, “state actors” — meaning, are they public entities controlled by public boards acting in accordance with instructions or orders handed down by state agencies? Or are they private entities providing a service to the public at large and, thus, not state actors?

In more concrete terms, are they the same as P.S. 131, a New York City elementary school in Brooklyn, or are they more like the private water companies that provide public drinking water to some 73 million Americans every day, the private companies that provide public transit services in cities across the country, and the privately owned “public” parks in New York City and elsewhere? Is a paving contractor a state actor because it paves a public street and receives tax money for its services?

If charter schools are private providers of a public good, educating U.S. children, then the establishment clause doesn’t apply. Suppose they are state actors, no different from P.S. 131. In that case, charter schools will cease to be “incubators of change,” as my state envisions, and they will cease to be “outposts for parents and students seeking learning environments that suit their preferences,” as constitutional expert Aaron M. Streett puts it.

Some charter school operators may favor the “state actor” interpretation because they think it might support government equalization of charter school funding and traditional public school funding, a worthy goal. But be forewarned: Declaring them state actors would eliminate their independence, stifle their creativity and mark the beginning of the end of charter schools.

• Baker A. Mitchell Jr. is the founder of The Roger Bacon Academy in Leland, North Carolina, which manages the Classical Charter Schools of America, a network of Title I charter schools in southeastern North Carolina.