What exactly does it mean for “Congress to make no law respecting an establishment of religion, or prohibiting the free exercise therof” in the context of charter schools? Can a charter school be religious? The answer is still legally undecided.
Currently, no state explicitly permits religious charter schools.
While charter schools use government funds to provide an education to students, their status as independent organizations make their role closer to independent government contractors — which can be religious. Thus, some advocates for religious charter schools argue that a ban on religious charter schools amounts to religious discrimination. If the government gives funds to all organizations (potential charters), and only the religious charters are barred from those funds, then the government has engaged in discrimination.
The position isn’t without opponents. Advocates against religious charter schools note that state money is directly used in funding and running religious charter schools, which could be considered a government endorsement of a particular religion. By contrast, vouchers, ESAs, and scholarship programs can be used at a religious school without implicating the government in unlawful religious endorsement. In those cases, it’s thought that the government has given a gift of funds to the parent, and the parent has the freedom to choose where to spend those funds. If they are spent at a religious school, they are too far removed from the government’s oversight to count as an endorsement of religion.
Earlier this summer, an Oklahoma ban on religious charter schools made its way to the US Supreme Court. In Oklahoma Statewide Charter School Board v. Drummond, the judges eventually split on whether or not religious charter schools are legal. While the court was comfortable with government funds being used by a religious organization for a secular purpose (for example, if a private school were to gain a grant for a new playground) they questioned whether funds could be used by religious organizations for religious instruction. Due to her professional connections with one of the legal teams, Justice Amy Coney Barrett recused herself, leaving the court in a 4-4 split. The case will hold no precedential weight, but many of the arguments will become refined during the next legal matchup.
New challenges to the ban on religious charter schools are on the horizon.
Despite the fact that Oklahoma officials are publicly hostile to the idea of a religious charter school, The National Ben Gamla Jewish Charter School Foundation, a Florida-based charter school network, is now publicly preparing to submit an application to the Oklahoma Charter School Board for a Jewish virtual charter high school. The application will likely result in another Oklahoma court fight.
There are legal challenges in other states, as well. From The 74:
In Tennessee, the nonprofit Wilberforce Academy is suing the Knox County Schools in federal court because the district refuses to allow a Christian charter school. Attorney General Jonathan Skrmetti is on the school’s side. He issued an opinion last month that the state’s ban on religious charter schools likely violates the First Amendment.
“Tennessee’s public charter schools are not government entities for constitutional purposes and may assert free exercise rights,” he wrote to Rep. Michele Carringer, the Knoxville Republican who requested the opinion.
Additionally, a contract school in Colorado is now calling itself the nation’s “first public Christian school.” In a contract school, districts sign agreements with private organizations to provide education services. While Colorado’s Department of Education has threatened to pull the school’s funding due to its sectarian pursuits, it’s very possible that they do not have the legal right to do so.
It seems likely that a future U.S. Supreme Court case might see a ruling in favor of religious charter schools. As can be read in detail in a summer 2025 AEI report, there’s a strong legal argument for the case for religious charter schools. In a future circumstance where Justice Barrett does not recuse herself, it’s hard to imagine the court ruling against religious charter schools. Policymakers and parents should prepare themselves for potential changes to come.
