Will the Supreme Court Force States to Fund Religious Charter Schools?

On April 30, the Supreme Court of the United States will hear two cases that could force states to use public funding for religious charter schools, which would drain resources for traditional public schools and further degrade the once-sacred wall separating church and state.

In Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, the Court will decide whether the Oklahoma Supreme Court correctly found that a state charter school authorizing board’s decision to create the nation’s first religious public charter school violated the Oklahoma state constitution, the state charter school statute, and the U.S. Constitution.

The National Education Association, which joined a broad coalition of public school organizations in an amicus brief in the case that was filed with the U.S. Supreme Court earlier this month, says these cases constitute a direct attack on public education that could further destabilize funding for public schools across the nation.

“Every student—no matter where they live, what they look like, or their religion—deserves access to a fully-funded neighborhood public school that gives them a sense of belonging and prepares them with the lessons and life skills they need,” said NEA President Becky Pringle in a statement.

“Allowing taxpayer dollars to fund religious charter schools would put both public education and religious freedom at risk, opening the door to more privatization that undermines our public education system,” said Pringle.

The stakes for public education are high: This decision will not merely determine whether Oklahoma may choose to use taxpayer dollars to fund religious charter schools. Rather, it will determine whether the state will be required to approve the first taxpayer funded religious public school in U.S. history.

Another potential threat to public school funding 

The Oklahoma cases arise from a 2023 decision by the Oklahoma Statewide Virtual Charter School Board to approve a religious public charter school—St. Isidore of Seville Catholic Virtual School. The board was under pressure from religious charter school proponents emboldened by the Court’s 2022 decision in Carson v. Makin, which ruled that Maine’s exclusion of private religious schools from a state tuition program was unconstitutional. 

The Archdiocese of Oklahoma City and the Diocese of Tulsa told the board that they intended to establish a St. Isidore as a Catholic school in every respect, and that it would “participate in the evangelizing mission of the church.” The school’s supporters also have consistently told the state that if allowed to operate as a charter school, St. Isidore will demand exemptions from any state requirements that burden its religious beliefs.   

Oklahoma’s Republican Attorney General, Gentner Drummond challenged the Board’s decision on the grounds that it was a violation of the state’s charter school law as well as the state and federal constitutions. 

According to the Oklahoma Charter School Act, as public schools, charters must “be nonsectarian in their programs, admissions policies, and other operations.” Furthermore, the Oklahoma Constitution prohibits aid to religious organizations and requires public schools to be “free from sectarian control.”

If the U.S. Supreme Court decides that Oklahoma must fund religious charter schools, the state’s public school system will lose more critical funding. Oklahoma is currently ranked 47^th on public school funding and has longranked near the bottom of the list in per pupil spending, according to NEA Rankings & Estimates data. Oklahoma also enacted a universal school voucher program in 2023.

“Requiring Oklahoma to fund religious doctrine in charter school programs diminishes funding for classroom resources, educator salaries, and other supports our students need,” says 5th-grade teacher Carrie Elledge, who is currently serving as Oklahoma Education Association president. 

“Ultimately, it can harm our students and our public schools by funneling funding meant for all to only a select few,” Elledge says.

‘The Oklahoma Supreme Court Got It Right’

Over the past eight years, the U.S. Supreme Court has increasingly read the Free Exercise Clause of the U.S. Constitution, which historically has been enforced to protect religion from government interference, to require that government fund religious exercise. Notably, in Espinoza v. Montana Department of Revenue the Court ruled that Montana could not refuse to allow religious schools to participate in its school voucher program despite its state constitutional prohibition against state aid to religious schools.  The court explained that the state’s refusal impermissibly burdened religious exercise.

Still, the Court would have to take that logic several steps further to require Oklahoma to fund religious charter schools, “To reach that result, the U.S. Supreme Court would have to conclude that charter schools are private, not public, entities, despite how they are treated under state charter school laws,” explains NEA General Counsel Alice O’Brien.

“The Oklahoma Supreme Court got it right when it ruled that Oklahoma charter schools are public schools: they were formed as part of the state’s public school system and they are regulated as public schools and entwined with the public school system,” says O’Brien.

Funding the Schools Our Students Deserve

If the U.S. Supreme Court decides that taxpayer money must fund religious charter schools, the ramifications would extend far beyond Oklahoma’s borders. And the effects on public schools could be seismic.

Charter school funding formulas are far more generous than the amounts made available under school voucher programs—which already consume large percentages of state education funds in states such as Florida, Ohio and Arizona. In states with school voucher programs, religious schools may be incentivized to apply to become charter schools instead, imposing a massive drain on state education funding systems.

Charter school programs are also far more widespread than voucher programs. Nearly every state in America now has a charter school law—all of which define and treat charter schools as public schools. This includes states that have rejected private school voucher programs. More than 3.7 million students now attend those schools, which is roughly 7 percent of all students. 

Religious charter schools are also likely to demand broad exemptions from accountability,  transparency and non-discrimination requirements that normally apply to charter schools, meaning both that traditional public schools and non-religious charter schools will be on an unlevel and unequal playing field. 

The potential drain on public school resources will put states in an impossible position of where to cut to meet mandates and continue as many programs and services as possible.

As NEA’s amicus brief states: “Traditional public schools have already felt the financial strain of sharing limited public funds with charter schools and school voucher programs. Religious charter schools would exacerbate this problem.” 

The brief goes on to explain that traditional public schools educate the vast majority of students, including those with disabilities—a population that religious charter schools are less likely to serve. Adding to the financial strain on traditional public schools will harm the broad cross-section of students they serve.

The Court is expected to issue its decision this summer.