On June 5, the Oklahoma Virtual Charter School Board voted, 3-2, to approve the initial application of the first religious charter school in the nation, St. Isidore of Seville Catholic Virtual School. The vote clears the way for the Board to authorize the school, which is a joint effort of the Archdiocese of Oklahoma City and the Diocese of Tulsa that will serve students throughout the state as early as fall 2024. The application makes clear that St. Isidore will be a Catholic school, top to bottom. The dioceses do not hide the ball: Their goal is to bring a high-quality, authentically Catholic, education to students who would otherwise lack access to it in a large rural state with many underserved communities.

The board’s decision marks a pivotal moment in the history of American education. All states require charter schools to be “nonsectarian” in their operations, and most—including Oklahoma—also prohibit them from being operated by, or affiliated with, a religious organization. In December 2022, however, the Oklahoma attorney general, John O’Connor, issued an opinion letter concluding that these prohibitions likely violate the First Amendment’s Free Exercise Clause. O’Connor’s letter cleared the way for St. Isidore’s application in January 2023. (Since then, O’Connor’s successor as attorney general, Gentner Drummond, has withdrawn O’Connor’s letter and made clear that he opposes St. Isidore’s application on state constitutional grounds.)

As events have unfolded in Oklahoma, a diverse array of advocates and reformers have expressed concerns about the possibility of religious charter schools. Immediately after the board’s decision approving the application, for example, Rachel Laser, the president of the Americans United for the Separation of Church and State, vowed to take legal action when the school is authorized, and Nina Rees, the president of the National Alliance for Public Charter Schools, issued a press release stating, “All charter schools are public schools, and as such must be non-sectarian….We stand ready to support charter school advocates … as they fight to preserve the public nature of these unique schools.” In the months leading up to the board’s decision, many parental choice advocates also urged caution, arguing that private-school-choice devices like education savings accounts (“ESAs”) are a better fit for religious schools because charter school regulations will threaten the schools’ autonomy and religious freedom. Some also have warned that states might close all of their charter schools, displacing millions of students, rather than authorize religious charter schools. Others are concerned about the “virtual” nature of the school, named after the patron saint of the Internet.

I have been involved from the outset with the efforts to secure approval for St. Isidore. My view is that the arguments against the school, and against religious charter schools generally, fall short. Groups like Americans United have argued for well over a century that the First Amendment’s Establishment Clause prohibits state funds from flowing to religious schools or supporting religious education. But the Supreme Court made clear over two decades ago, in Zelman v. Simmons-Harris, that’s simply not the case. In Zelman, the court upheld a modest voucher program for low-income students in Cleveland despite the fact that more than 96 percent of the students in the program attended religious schools. In the decades since, the Court has repeatedly made clear that the First Amendment not only permits the government to extend public benefits, including public funds, to religious schools but also prohibits it from funding secular, but not religious, ones. As Attorney General O’Connor summarized in his opinion letter, “The state cannot engage private organizations to ‘promote a diversity of educational choices,’ … and then decide that any kind of religion is the wrong kind of diversity. That’s not how the First Amendment works.”

As for the argument that charter schools must be secular because state laws call them “public” schools, that’s also not how the First Amendment works. Traditional public schools may not embrace religion because they are government schools. They are operated and controlled by school districts, which are government entities. But charter schools are not government schools. Charter laws enlist private organizations to run schools, and give them substantial operational autonomy in order to foster educational pluralism. And, charter schools, like private schools participating in parental choice programs, are schools of choice. The only students who will be educated by St. Isidore of Seville Catholic Virtual School are students whose families choose the school for them.

Both the question whether charter schools may be religious—and the question whether states must permit them to be religious—turn on whether charter schools are private actors or government actors (in constitutional-law speak, whether they are, for federal constitutional purposes, “state actors”). The federal constitution only binds private actors in the very rare circumstance when they are effectively acting as government agents—when their actions so closely controlled by the government that their actions are effectively the government’s own. If charter schools are state actors, then the Establishment Clause (extended to apply to the state governments by the 14th Amendment) may justify forbidding the schools from being religious. But if the schools are not state actors, then these prohibitions represent unconstitutional religious discrimination. The state action question is immensely complicated, and one that the Supreme Court may address within the next year. But in my view, in most states—and certainly in Oklahoma—charter schools are not government actors. They are private actors, and because they are, the state is bound by the Free Exercise Clause’s nondiscrimination mandate to permit them to be religious. (See “Supreme Court Opens a Path to Religious Charter Schools,” features, Spring 2023.)

Whether private school choice devices like ESAs are a better fit than charter status for religious schools is a prudential question, not a legal one. I find the dramatic expansion of private-school choice over the past few years to be a cause for great celebration. Where available, private school choice may, indeed, be a better fit for many religious schools. It certainly is the path of least resistance. But that reality does not relieve states of their obligation to conform their charter laws to the Free Exercise Clause. To be sure, charter schools currently are regulated more than schools participating in private-school-choice programs, but that reality also does not justify religious discrimination. Moreover, contrary to the apparent assumptions of many parental choice advocates, while ESAs and other private-school-choice programs may be lightly regulated at present, these devices are not anti-regulation invincibility shields. Advocates must remain vigilant against the risk of regulatory creep (as happened in the charter context). And religious organizations should have the same right to weigh the costs and benefits of participating in a parental choice or charter school program as secular ones do.

The remote possibility that some states might choose to close secular charter schools rather than to authorize religious ones also falls short as a justification for prohibiting religious charter schools. If anything, that argument highlights the discriminatory nature of current charter laws. In states without private school choice, charter school laws put religious organizations to what the Supreme Court has made clear is an unconstitutional test: The choice between receiving a public benefit and adhering to their faith commitments.

As for the virtual nature of the new school, Oklahoma already has several online secular charter schools. All things being equal, students at in-person, brick-and-mortar schools have generally outperformed students at virtual schools on standardized tests, though online education is increasingly common in many contexts. However, the Sooner State’s embrace of online secular charter schools, including for-profit ones, when St. Isidore will be operated by two dioceses with a proven track record operating academically strong schools, suggests that the opposition here is really not about the online education, but about the religion.

Charter schools have, over the past thirty-plus years, expanded educational opportunities, especially for the kids who need them most, and have injected much-needed educational pluralism into the landscape of American education. But one kind of pluralism—religious pluralism—has been off the table. Religious schools, which have been among the most important sources of educational pluralism, and which have served with distinctions millions of students—including many low-income students who otherwise would lack access to a high-quality education—have long been told they cannot be charter schools. The recent developments in Oklahoma finally give religious schools a new answer, opening the door to an authentically pluralistic charter school landscape. That is a good thing.

Nicole Stelle Garnett is John P. Murphy Foundation Professor of Law and associate dean for external engagement at Notre Dame Law School. She is also a senior fellow at the Manhattan Institute.

America is in the midst of a parental choice revolution. In the past few months, five states—Arizona, Arkansas, Iowa, Utah and West Virginia—have adopted education savings account, or ESA, programs, which extend private-school-choice eligibility to all or most K-12 students. These programs provide students with public resources for an array of education expenses, including tuition, micro-schooling, homeschooling, education therapies, and tutoring. Florida and Texas may soon join them, and other states seemed poised to adopt more modest private-school-choice programs.

Recently, Governor Ron DeSantis, a strong parental-choice supporter, questioned the wisdom of universal ESA programs, remarking, “I’d like to see the focus remain on … low income [and] middle class” families. DeSantis’s position is not unreasonable. For decades, parental-choice advocates have emphasized the need to expand the educational opportunities available to kids who lack the financial resources to exit public schools that fail them. As Howard Fuller, an architect of the nation’s voucher program, once observed, parental choice is today “more of a rescue mission than a fight for broad societal change.” And, Florida leads the nation in advancing that mission. Although 30 states have at least one private-school-choice program, nearly 25% of participating students reside in Florida, which has four.

There is tension between universal eligibility and this traditional case for parental choice: in universal programs, resources will necessarily go to wealthy children who do not need to be rescued. This is one reason that, until last summer, all private-school-choice programs restricted eligibility in one or more ways.

Unfortunately, as I detail in a new Manhattan Institute report, eligibility restrictions often impede the effective implementation of private-school-choice programs. While means-testing is relatively straightforward, it is frequently paired with other eligibility restrictions that undercut program effectiveness. For example, both parents and participating schools find it difficult to navigate programs limited to students attending “failing” public schools or school districts, as currently proposed in pending legislation in Georgia. Not only do most private schools draw students from multiple school districts, but the criteria for designating districts and public schools as “failing” vary across states (and from year to year within them); they are also subject to manipulation by regulators.

Restricting eligibility to students who were previously enrolled in a district public school—another common eligibility requirement—saves money. But it also excludes otherwise-eligible students currently enrolled in private schools, which can generate resentment among families who have sacrificed to pay private school tuition. Moreover, studies suggest that students almost always suffer some short-term learning loss when switching schools, so “switching” requirements are harmful to student learning. When these three eligibility restrictions—means-testing, a “failing” school or district, and prior public school enrollment—are combined, the result is many program participants arriving at their new schools in need of substantial remediation.

Other design elements also pose significant barrier to private-school-choice success. Approximately half of existing programs rely on tax policy to incentivize donations to nonprofits providing private-school scholarships. Many of these “scholarship-tax-credit” programs provide less than a one-for-one credit for donations to scholarship-granting organizations, impeding effective fundraising. For example, legislation pending in Nebraska would give donors a fifty percent tax credit for donations to a support private-school scholarships. Not surprisingly, fundraising efforts in these programs often fall short, and the scholarships amounts provided through them are lower than voucher and ESA programs.

Low scholarship amounts also are, in turn, a barrier to success. The scholarships provided in many programs are significantly lower than tuition at all but the most affordable private schools. For example, West Virginia’s ESA program provides an average of $4,200 to program participants, and a proposed ESA in North Dakota would provide only $1,500-$3,000. Low scholarship amounts tend to result in private-school-choice resources being used to fill empty seats in existing schools rather than incentivizing the creation of new ones.

While programmatic limitations often impede the successful implementation of private-school-choice programs, design defects alone are not to blame. Private schools, advocates, and philanthropists can and should do more after programs are enacted. Participating schools must be clear-eyed in considering their own academic shortcomings and resolve to improve. They must embrace transparency, recognizing that they now participate in complex educational markets where parents are consumers. And, they must engage the challenge of remediating participating students who have fallen behind, especially in the post-pandemic world. Especially in states with generous parental choice programs, schools and school systems should add capacity, open new schools, and create new school networks. For example, the charter management organization Great Hearts Academies recently announced plans to open a network of private classical Christian schools, Great Hearts Christos, which will participate in Arizona’s ESA program.

Advocates can also help recruit, inform, and onboard schools and other providers, and engage in the critical work of educating parents—especially low-income parents—about all the options now available to their children. And, as the footprint of private-school choice grows, philanthropists should not only generously support implementation efforts, but also lend their time and expertise to help develop strategies for ensuring that parental choice lives up to its transformational potential. ­

These are heady, exciting, days for proponents private-school choice. In many ways, our aspirations are being realized beyond our wildest imagination. To talk of “implementation” at this moment of celebration almost seems like bad manners. But the devil, as they saying goes, is in the details. Attention to those details, both before and after programs are enacted, will ensure that parental choice fulfills its advocates’ aspirations.

Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and the John P. Murphy Foundation Professor of Law at the University of Notre Dame.

In June 2022, the U.S. Supreme Court held in Carson v. Makin that Maine violated the Free Exercise Clause of the First Amendment by excluding religious schools from a private-school-choice program—colloquially known as “town tuitioning”—for students in school districts without public high schools. Writing for the majority, Chief Justice John Roberts concluded that “the State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

Carson was, in some ways, unremarkable. For the third time in five years, the court held that the Constitution prohibits the government from excluding religious organizations from public-benefit programs, because religious discrimination is “odious to our Constitution.” But the fact that Carson was not groundbreaking does not mean that it is not important. On the contrary, Carson represents the culmination of decades of doctrinal development about constitutional questions raised by programs—including parental-choice programs—that extend public benefits to religious institutions. Among the most important of these questions is whether there is “play in the joints” between the First Amendment’s religion clauses—the Free Exercise Clause and the Establishment Clause—that might permit government discrimination against religious institutions in some situations. Going forward, the answer in almost all cases is likely to be no. Both clauses, the court has now made clear, require government neutrality and prohibit government hostility toward religious believers and institutions. (The court clarified—but did not overturn—its 2003 decision in Locke v. Davey. In that case, the justices upheld, by a vote of 7–2, a Washington State law prohibiting college students from using a state-funded scholarship to train for the ministry; that law, the court ruled, did not violate the Free Exercise clause. Arguably, Carson narrows and effectively confines Locke to its facts by characterizing it as advancing only the “historic and substantial state interest” against using “taxpayer funds to support church leaders.”)

Carson does, however, leave at least two important questions unanswered. The first concerns the decision’s scope. The holding makes explicit that “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.” Carson is silent, however, on what it means for the government to “subsidize private education.” In particular, it leaves unanswered the question of whether the nondiscrimination mandate applies to charter schools, which are privately operated but designated “public schools” by law in all states—and supported by tax dollars. Does the Free Exercise Clause require states to permit religious charter schools?

The second question concerns which regulations states may lawfully impose as a condition of participation in private-school-choice programs. Right after the court issued its decision, for example, Maine’s attorney general, Aaron Frey, clarified that all private schools taking part in the program, including religious schools, are bound by the Maine Human Rights Act, which prohibits discrimination on the basis of sexual orientation or gender identity. As a result, while Carson opened the door for religious schools to participate in the tuition-assistance program, many declined to do so because of the tension between the non-discrimination mandate and their religious commitments. Carson says nothing about whether such non-discrimination mandates—or other regulations that some faith-based schools may find objectionable on religious grounds—are constitutionally permissible.

Understanding Carson

In rural Maine, many small school districts have no high school. Since 1873, the state has given these districts the option of permitting residents to use public funds to attend private schools. Students could use these funds at religious schools until 1980, when the state decided that the Establishment Clause prohibited the practice. At the time, this conclusion was defensible: The Supreme Court’s existing Establishment Clause doctrine could be interpreted to prohibit students from using public funds at religious schools. Beginning in the 1980s, however, the court shifted course and began rejecting challenges to programs aiding religious-school students. When the exclusion of religious schools from the tuition-assistance program was first challenged in 1996, it remained unclear whether the constitution permitted, let alone required, Maine to permit participating students to attend religious schools. (I was one of the lawyers who filed that first challenge, Bagley v. Town of Raymond. We lost on establishment-clause grounds.)

In 2002, in Zelman v. Simmons-Harris, the Supreme Court upheld a voucher program enabling disadvantaged children in Cleveland to attend religious schools. The court concluded that the program did not violate the Establishment Clause for two reasons. First, it was “religion neutral,” giving students the option of attending either secular or religious schools. Second, religious schools benefited only indirectly, as the result of parents’ independent choices.

Zelman clarified that states could include religious schools in private-school-choice programs but was silent about whether they could choose not to, as Maine continued to do. The answer to this question unfolded in three recent cases. Trinity Lutheran Church v. Comer (2017) held that Missouri unconstitutionally excluded a religious preschool from a playground resurfacing program. Espinoza v. Montana (2020) found that the Montana Supreme Court violated the Free Exercise Clause by invalidating, on state-constitutional grounds, a private-school-choice program because it included religious schools. And finally, Carson rejected the argument that there is a constitutionally relevant distinction between discrimination based on the religious character (or status) of an institution and discrimination motivated by a desire to avoid spending public funds on religious conduct (for religious use). In Carson, this so-called “status-use” distinction undergirded the argument that Maine was not discriminating against schools for being religious, but rather because they taught religion. Carson clarifies that the court has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination. This clarification by the court is important. Since integrating religious and secular instruction characterizes schools in many faith traditions, asking them to stop teaching religion is tantamount to asking them to stop being religious.

Religious Charter Schools

Carson has few immediate implications for existing private-school-choice programs. Thirty-one states, D.C., and Puerto Rico each have one or more such programs, and only two states—Maine and Vermont—ever excluded religious schools. In the medium term, however, the Carson decision may open the door to (and certainly will prompt litigation about) religious charter schools. Here’s why: Carson makes clear that states choosing to fund private education must extend benefits to religious schools. And, although Carson does not address the question of religious charter schools, if charter schools are constitutionally analogous to private schools then—as one state attorney general recently concluded—charter-school laws prohibiting religious charter schools (as all such laws do) are unconstitutional.

This question has enormous implications for education policy, since charter schools command a sizable portion of the K–12 market. While the private-school-choice movement has gained tremendous momentum in recent years, only just over 700,000 students—about 1.3 percent of all K–12 students or 15 percent of all private-school students—participated in a private-school-choice program in 2021–22. In contrast, charter schools, which are authorized in 44 states and D.C., educate nearly 3.5 million students (7 percent of all public-school students). Charter schools are privately operated but universally designated by law to be “public schools.” All state charter laws require charter schools to be “secular”; many prohibit religious institutions from operating them at all.

The constitutionality of laws prohibiting religious charter schools was in question before Carson. Indeed, Justice Stephen Breyer flagged the issue in dissent in Espinoza, asking, “What about charter schools?” He reiterated his question in his Carson dissent: “What happens once ‘may’ becomes ‘must’? . . . Does it mean that . . . charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

The answer turns on a legal doctrine unrelated to religion, known as the “state action” doctrine. Under this doctrine, privately operated entities are not bound by the federal Constitution except when their actions are effectively the government’s actions. The state-action question is pivotal, because the Supreme Court has made clear that the Establishment Clause requires government actors, including district public schools, to be secular. Thus, if charter schools are state actors, state laws requiring them to be secular are not only constitutionally permissible, but also constitutionally required. On the other hand, if charter schools are not state actors, then states, after Carson, not only may permit religious charter schools but also must. That is to say, if charter schools are, for federal constitutional purposes, private schools, then charter-school programs are programs of private choice, and states cannot prohibit religious schools from participating in such programs.

Charter schools are, by design, distinct from district schools. Most importantly, they are privately operated and exempt from many public-school regulations. But are they different enough from district schools to be treated, for federal constitutional purposes, as private schools? The answer is far from straightforward. The Supreme Court has articulated a number of factors to determine whether a private institution is a state actor. These include whether it is performing a function that has been “traditionally the exclusive prerogative of the State”; whether the government controls it to such a degree that it is a governmental agent; and the degree of interdependence (or “entwinement”) between the government and the private actor. The overarching inquiry is whether there is a “sufficiently close nexus between the state and the challenged action to attribute the action to the government.” As the Supreme Court has observed, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”

It is easier to explain which attributes of charter schools do not make them state actors than to explain which ones might: First, they are not state actors, because they are schools. Education obviously is not “traditionally the exclusive prerogative of the state,” since millions of children are—and have long been—educated in private schools or at home. Second, the fact that the law calls them “public schools” does not automatically mean they are state actors. The Supreme Court has held that legal categorization of an entity as public or private is not dispositive of the state-action question. Third, the fact that state laws enable their creation does not necessarily make them state actors. After all, most private schools (as well as most charter schools) are operated by private corporations, which do not exist before a state grants their corporate charter. Clearly, issuing a corporate charter to a private corporation does not make it a state actor. Fourth, they are not state actors simply by virtue of being regulated and funded by the government. In Rendell-Baker v. Kohn (1982), the Supreme Court found that a private school was not a state actor even though it was heavily regulated by, and received more than 90 percent of its funds from, the government. “The school,” the court observed, “is not fundamentally different from many private corporations whose business depends on [government] contracts. Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”

Federal courts are divided on the state-action question. In 2010, the U.S. Court of Appeals for the Ninth Circuit held that an Arizona charter school was not a state actor in a lawsuit challenging a teacher’s termination as a violation of the 14th Amendment’s due process clause. The court rejected the claim that charter schools’ legal designation as “public schools” controlled the state-action question and found an insufficient nexus between the state and the school’s decision to fire the teacher, concluding that the termination was the purely private action of a private corporation. In contrast, earlier this year, the U.S. Court of Appeals for the Fourth Circuit held that North Carolina charter schools are state actors in a case alleging that a classical charter school’s dress code, which requires girls to wear skirts, violates the 14th Amendment’s equal protection clause. The majority’s opinion turned on several factors, including the degree of public funding and the fact that North Carolina law calls charter schools “public” schools. The majority also said that the state had delegated its constitutional obligation (to provide public education) to charter schools. Several judges vigorously dissented, arguing that the majority opinion adopted an expansive definition of state action that is inconsistent with Supreme Court precedent.

No court has yet considered the question of whether the First Amendment permits and/or requires states to authorize religious charter schools, although litigation is undoubtedly on the near horizon. In December 2022, the attorney general of Oklahoma, John O’Connor, issued an opinion letter finding that provisions of state law prohibiting charter schools from being operated by or affiliated with religious organizations and requiring them to be “nonsectarian” in all operations likely violates the First Amendment. Having found that charter schools are not state actors, he concluded that “the State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.” Although an attorney general’s opinion does not have the same legal standing as a court opinion, the state will permit religious charter schools for the time being.

Charter schools defy easy categorization, and it could be years before the Supreme Court weighs in on the issue (although a petition asking the court to review the Fourth Circuit’s decision is pending currently). It is also possible that, given variations in the ways they are regulated, charter schools may be state actors in some states, where they are more closely controlled by states or school districts, but not in others, where they enjoy significant operational autonomy. That said, it is my view that, in most states, charter schools are not state actors. If that is right, then charter schools are essentially programs of private-school choice, which Carson holds not only may permit religious charter schools but must permit them. That does not mean that religious schools must, should, or will seek authorization to operate as charter schools. Many may reasonably decide not to, especially in states with robust private-school choice. Indeed, a number of education reformers reacted negatively to the Oklahoma attorney general’s opinion authorizing religious charter schools; these critics raised prudential concerns about the risk of greater governmental control over charter schools than schools participating in private-school choice programs. I share many of their concerns and embrace their support for expanding private-school choice. But the prudential question of whether religious organizations should operate charter schools is not the same as the legal question of whether the Constitution gives them the right to do so—and a strong case can be made that it does. That case likely will be tested in court sooner or later.

The Regulatory-Strings Question

A second question left unanswered in Carson concerns the range of regulations that can be constitutionally imposed on participants in choice programs. Carson prohibits states from requiring schools to secularize as a condition of participation in a funding program, but there are many other regulations that schools might object to on freedom-of-religion grounds. Maine reminded schools about the state’s nondiscrimination requirements, which led many religious schools to decline to participate. Thus far, no school has challenged these regulations.

Private schools in the United States are lightly regulated. The same is true of private schools participating in choice programs, although most states impose modest additional requirements on the latter—for example, requiring them to hire minimally qualified teachers, to administer a standardized test (but typically not the state test), and to teach certain basic subjects. A handful of programs regulate student admissions. For example, Louisiana requires schools to randomly select scholarship recipients, D.C. prohibits schools from considering religion in admissions, and Maryland prohibits schools from discriminating on the basis of sexual orientation and gender identity or expression.

Before turning to the “regulatory strings” question, it is important to note that the government undoubtedly could impose many additional regulations on private schools regardless of whether they accept public funds. Private and religious schools might object, for example, to a rule requiring them to administer the state achievement test, but such a requirement would be constitutional. States have chosen to lightly regulate private schools. I believe that choice is a wise one that respects and fosters educational pluralism. But many of the regulatory choices made by states with respect to private schools are the result of political compromise, not constitutional mandate.

This is true even of some regulations burdening religion. Under existing doctrine, the Free Exercise Clause does not prohibit regulations that incidentally burden religion, provided that they are religion neutral and “generally applicable.” The Supreme Court has explained that a law is religion neutral if it treats religious conduct and institutions at least as well as like secular conduct and institutions. For example, a nondiscrimination regulation that applied with equal force to all private schools would be religion neutral. And a regulation is generally applicable unless it includes exceptions or gives government officials discretion to grant exceptions. For example, a regulation requiring private schools to administer the state achievement test except if doing so would be unduly burdensome would not be generally applicable. If a law fails to satisfy either of these criteria, then the government must offer a “compelling interest” justifying it and demonstrate that the government cannot achieve that interest in a less burdensome way.

There are, however, regulations that the government could not directly impose on religious schools but might be able to impose as a condition of participating in a private-school-choice program—that is, in order to receive public funding. Consider, for example, employment decisions regarding teachers in religious schools. The First Amendment prohibits the government from regulating in any way religious institutions’ selection of “ministers,” a category that includes—the Supreme Court has held—teachers responsible for religious instruction and faith formation in religious schools. (Disputes about the scope of this so-called “ministerial exception” will be set aside here.) The ministerial exception is situated within the court’s broader “church autonomy” doctrine, which precludes government interference with the internal organizations of religious institutions. Regulations outside the employment context might also fall within the protections of this doctrine—for example, rules prohibiting religious schools from preferring (or limiting enrollment to) co-religionists.

It is clear that the government may not directly regulate religious schools’ employment decisions about ministers, including some teachers, through nondiscrimination law or otherwise. The same is true of other regulations that implicate church autonomy. What is not clear is whether the Constitution permits the government to accomplish indirectly what it cannot accomplish directly. Can the government condition participation in a private-school-choice program on religious schools’ waiver of their constitutional rights?

The answer to that question turns on the so-called “unconstitutional conditions doctrine.” This doctrine reflects the concern that the government might use the power of the purse as leverage to accomplish what would otherwise be unconstitutional ends. Unfortunately, the doctrine is a hopeless mess, with some cases finding it permissible to condition the receipt of a public benefit on the waiver of a constitutional right, others finding such conditions impermissible, and none satisfactorily clarifying the line between permissible and impermissible conditions.

The application of the unconstitutional conditions doctrine to private-school-choice regulations undoubtedly will be addressed in future litigation. Thus far, there has been virtually no litigation about the issue, probably because existing regulations are unobjectionable to religious schools. In January 2022, a federal district judge held that Maryland violated the Free Speech Clause of the First Amendment when it prohibited a school from expressing religious views on sexuality if the school chose to participate in a state voucher program. The decision, however, is narrow. The judge found only that the state’s restriction on the school’s expression ran afoul of the unconstitutional conditions doctrine. She took care to clarify that her decision did not address the constitutionality of the underlying regulation prohibiting discrimination against LGBT students in admissions. At this point, it is premature to make predictions about how courts will rule on other claims that the government is imposing unconstitutional conditions on participation in private-school choice programs. It is worth noting, however, that Carson itself is an unconstitutional conditions case. Although the court did not discuss the doctrine, it made clear that Maine could not condition participation on schools shedding their religious identity. This suggests that the court might view skeptically other conditions that had similar effects on schools’ ability to live out their religious mission, including perhaps regulations limiting schools’ autonomy over the employment decisions subject to the ministerial requirement.

Even if the government can legally impose regulatory conditions that burden religious freedom as a condition of participating in private-school-choice programs, there are many good reasons not to do so, including respect for religious liberty and educational pluralism. Moreover, the success of choice programs turns in part on the participation of academically strong schools. Regulations, including those that ask schools to waive religious-freedom rights, will increase the cost of participating, likely leading some good schools to opt out and leaving fewer options for participating students.

Carson was an important victory for religious liberty that promises to have wide-ranging implications, both within and outside of K–12 education. The full extent of those implications, including the answers to the two questions addressed here, remains to be seen. These questions will undoubtedly be tested in future litigation. Both seem destined eventually to wind up on the Supreme Court’s docket.

Ultimately, the two questions may intersect. To date, the regulatory conditions placed on schools participating in private-school-choice programs have—by and large—been unobjectionable to religious schools. Legislative efforts to impose conditions in tension with the faith commitments of some schools have fallen short. If, however, advocates succeed in leveraging Carson to open the door to religious charter schools, especially in states without private-school choice, regulators may respond (as they have in Maine) by imposing operational requirements that are in tension with some schools’ religious commitments. Some existing charter-school laws likely include regulations that some religious organizations would find objectionable. These rules may dissuade religious organizations from seeking authorization to operate charter schools, prompt them to pursue litigation challenging the requirements as unconstitutional conditions, or both.

Nicole Stelle Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame.

This article appeared in the Spring 2023 issue of Education Next. Suggested citation format:

Garnett, N.S. (2023). Supreme Court Opens a Path to Religious Charter Schools: But the trail ahead holds twists and turns. Education Next, 23(2), 8-15.

For more, please see “The Top 20 Education Next Articles of 2023.”