‘The stakes are incredibly high’: Debate ramps up in nation’s capital over first religious charter school ahead of Supreme Court arguments

Four education policy experts debated the merits and constitutionality of the nation’s first tax-funded religious charter school ahead of next week’s oral arguments in a Supreme Court case that could transform K-12 education.

The case involves St. Isidore of Seville Catholic Virtual School in Oklahoma, which is aiming to provide a Catholic education to students of all faith backgrounds. The school, approved by the state’s charter school board in 2023, has been fighting its way through the courts after lawsuits argued a Catholic charter school is unconstitutional.

Ahead of the Supreme Court arguments scheduled for April 30, the American Enterprise Institute held a debate last week between policy and law experts who argued for and against the Catholic charter. “The case raises a host of education policy questions,” read a description of the debate, hosted in Washington D.C. “Would religious charter schools help or hurt the school choice movement? Would they alleviate or deepen educational inequalities?” 

Religious charter schools would be “great for kids, great for communities, great for American pluralism,” said Manhattan Institute Senior Fellow Andy Smarick, arguing in favor of St. Isidore. “They’re also the clear next step in America’s efforts to expand K-12 diversity.” 

A key question the Supreme Court will face is whether St. Isidore is a private or state actor. The school has maintained that it is “privately designed, owned, and operated,” but the Oklahoma Supreme Court disagreed, finding the school to be a state actor that would be receiving direct “monetary support” to further a Catholic education.  

However, when charter schools first began 35 years ago, state laws were “very clear that this would be a new sector of public education that was nongovernmental,” Smarick argued. “They were not operated by the government. Their teachers were not employed by the government. They weren’t even enrolled like traditional government-run schools.” 

Private organizations frequently partner with the government for social services, foster care, clinics, and more, he said. “In these cases, the nonprofit retains its private character. In most cases, it does not become a government entity.” 

A trilogy of recent Supreme Court cases have made it clear that if the government opens up a program to nonprofits, such as a charter school program, it “cannot single out faith-based groups for exclusion,” Smarick added. 

“A Montessori group can run a Montessori charter; a social justice group can run a social justice charter; a faith-based group needs to be able to run a faith-based charter,” he said. “Public schooling today is producing poor academic results and parents are frustrated. The need for accountability and choice is real. Faith-based charters would provide both of those things.” 

Derek Black of the University of South Carolina disagreed, arguing charter schools are state actors and must abide by the Constitution, which prohibits public schools “from using their power to coerce or indoctrinate religions.”  

In 46 states, statutes “explicitly declare” charter schools to be public schools, which only exist because the state authorizes them, he said. Charters also receive funds through the public education budget. “If it walks like a duck, if it quacks like a duck, folks, it’s a duck,” Black said. 

However, Josh Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville, argued it would be unconstitutional to exclude St. Isidore based on its religious status. Exclusion “violates the Free Exercise Clause, misreads the Establishment Clause, would create doctrinal and policy chaos, and depends on an unconstitutional understanding of the nature of rights.” 

Kathleen Porter-Magee took a different approach, arguing there are better ways to strengthen educational freedom and religious education than through charter schools. She said her experience as both a charter school leader and Catholic school superintendent convinced her that schools like St. Isadore would likely “work against their intended goal of expanding choice and supporting religious liberty.” 

While charters were originally intended to be “islands of innovation in the public sphere” and largely free from bureaucratic constraints, over time they have become increasingly regulated by the government, she said. Religious institutions that pursue charter authorization may eventually have to compromise their religious beliefs to continue receiving funding.  

“Historical examples show us how this can play out across sectors – as faith-based institutions have partnered with the state, they have encountered growing ways of influence and manipulation through regulation,” she said. “In the end, religious liberty is not just about what the Constitution allows. It’s also about what the church can do without compromise, and when we build our schools on the foundation of government contracts, we risk ceding our freedom in pursuit of our funding.” 

Porter-Magee warned against favoring charter schools over other forms of private school choice: “I think the stakes are incredibly high.” 

A final ruling from the Supreme Court in the case is expected in June.