This summer, the U.S. Supreme Court heard Oklahoma Statewide Charter School Board v. Drummond, a case that critiqued the boundaries of state charter school funding. After Oklahoma attempted to authorize religious institutions to run state-funded charter schools, Oklahoma’s attorney general immediately challenged the case. This innovative legislature was blocked due to concerns that it violated the establishment clause of the Constitution.
As the case went to the U.S. Supreme Court, proponents of the legislature argued that it was consistent with legal precedent surrounding charter schools and religious schools.
What is a charter school and how do they work in Minnesota?
Charter schools are publicly funded independent schools who operate under private administrators. They are considered hybrid school models; they are legally public schools operated by private entities. Contracts for individual charter schools are overseen by charter school authorizers, who ensure that the school is operating properly. Charter schools were established three decades ago to allow for educational innovation in Minnesota, and their legacy has dramatically expanded language, arts, and science educational options for Minnesota families.
In Minnesota, authorizers are organizations approved by the state that supervise one or more charter schools. Authorizers are responsible for the educational and financial health of the school. Schools can partner with authorizers that fit their needs, whether that be educational, cultural, or financial support. Some school boards, like the St. Paul School District, used to function as authorizers. As the Minnesota Department of Education demanded more and more intense paperwork for authorizers, they withdrew, citing staffing concerns. Today, most of Minnesota’s charter school authorizers are professional nonprofit organizations.
While religious colleges and nonprofits are authorized to act as charter school authorities in Minnesota, religious nonprofit organizations are prohibited from acting as charter school authorities. The Manhattan Institute has noted that Minnesota’s religious restrictions on charter school authorities appear to be constitutionally suspect.
In 2024, nine out of 181 charter schools closed in Minnesota — continuing a trend of small charter schools struggling to stay afloat amid Minnesota administrative policies that make it difficult for schools to find buildings, students, and sufficient funding streams. Minnesota’s efforts to oversee the charter school authorities have been lackluster, allowing salacious stories of embezzlement, fraud, and secrecy to overtake headlines. This led to a recent government award of $450,000 granted to the University of Minnesota’s Education Department to provide reform proposals to state officials. While small charter schools in Minnesota work to gain strength, larger ones, like Eagle Ridge Academy, thrive with high student success ratings, diverse student populations, and long waiting lists for admission.
How could there be a legitimate case for using government money to fund a religious charter school?
Religious schools and organizations who request government funds offer an interesting example of when two seemingly opposing legal principles — the Establishment Clause of the First Amendment and the Free Exercise Clause — must find practical coexistence. Does the grant of government funds to a religious organization implicate the government in an endorsement of religion? And does the privation of government funds from a religious organization, when all other organizations are granted funding, constitute discrimination on the basis of religion? Legal precedent currently threads the needle between endorsement and discrimination, allowing for government funds to be granted to religious organizations under specific circumstances.
For example, in the 2017 case Trinity Lutheran Church of Columbia v. Comer, Trinity Lutheran was denied their application to a state program for a grant to resurface their playground. The court argued that the application could not be denied on religious grounds, as “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” Educational fairness insists that public benefits remain available to the religious and irreligious alike.
As my colleague Catrin Wigfall wrote here,
Recent decisions by the U.S. Supreme Court in 2020 (Espinoza v. Montana Department of Revenue) and 2022 (Carson v. Makin) have clarified what the Establishment Clause of the First Amendment and the Free Exercise Clause protect: The government is not required to extend public benefits to private organizations or to fund private activity at all. However, if the government chooses to extend benefits to private secular organizations, those benefits must be extended to qualifying religious organizations.
The question becomes thornier when other creative educational solutions come into question, such as the scholarship or voucher programs seen in Ohio and Pennsylvania. While a voucher can be used anywhere, including a private religious school founded by private citizens, charter schools are often founded with state money with the express purpose of being a charter school. Does this mean that the state would be sponsoring a religious school? A recent AEI report offers an explanation.
The skeptic would argue that religious discrimination is not at play [in the Drummond case] because the state would be establishing a charter school, not restricting where parents can use vouchers or scholarships. The counterargument is that (1) private entities, not the state, establish and operate charter schools (in Drummond, that was the Catholic diocese) and (2) charter schools are state funded, so the central issue is indeed about discrimination based on the nature of the entity operating those schools.
Put another way, charter schools are operated by private entities who use state funds. Can the state discriminate against a religious private entity by denying them funds open for all? The authors of the AEI report argue that they cannot.
Religion is not only a class protected against discrimination in the United States, but a deeply significant facet of personal identity. The Pew Research Center places the amount of religious adults in America at around 70 percent over the last five years. In many communities, religious education is an essential part of maintaining pious conviction and cultural heritage. Religious students and families often apply intense analysis to their choice of school. For example, one in three Somalis in Minnesota choose charter schools for their education due to charter schools’ increased level of respect for Somali heritage and accommodation for Islamic practice.
Students who do not have the funds to attend a private, often expensive religious school must act against their convictions and choose a secular public or charter school. As Minnesota funds are given to public and charter schools, private religious schools which remain open to preserve individual conviction and freedom of choice face strong economic headwinds. If a charter education is, as Trinity Lutheran put it, one of the state’s “generally available benefits,” why are religious students denied the opportunity to utilize it?
The Drummond deadlock
Faced with the opportunity to clarify national policy regarding religious charter schools, the Supreme Court found themselves in gridlock. While the court was comfortable with government funds being used by a religious organization for a secular purpose (e.g. Trinity Lutheran’s new asphalt playground) they questioned whether funds could be used by religious organizations for religious instruction. 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 return.
What happens next?
While the only way to truly know the court’s next decision is to wait for that decision to arrive, there is strong legal precedent for the legalization of religious charter schools. The authors of the AEI report note that
A majority of justices would likely agree that, by offering charters to all except religious schools, states impose a penalty on religious schools—a violation of the free exercise clause. Again, Trinity Lutheran established that states can’t exclude religious groups from generally available benefits—a principle Espinoza and Carson extended to the educational context. A Drummond successor should thus confirm, at least with the Court’s current composition, that excluding religious schools from charter programs violates the free exercise clause.
Put more freely, allowing charter schools to be constructed along all student preferences (such as science, art, or cultural magnet schools) except for religious student preferences clearly violates a student’s ability to practice religion. Therefore, it is discriminatory.
This question will likely resurface when (and if) another state decides to legalize religious charter schools. Until then, lawmakers, educators, and religious families will wait to see if religious freedom and equality will prevail.
What does this mean for Minnesota?
Minnesota lawmakers have proven reluctant to allow government funds of any type to reach Christian educational institutions. The 2023 legislative session attempted to bar certain religious institutions from their current participation in Minnesota’s Post Secondary Enrollment Options (PSEO) program, which allows high schoolers to earn college credit at local public or private universities. The bill blocked participation at religious universities that require a statement of faith for students to attend in-person classes, such as the University of Northwestern. Becket Law challenged this requirement as clearly unconstitutional, leading the state to issue an injunction that blocked implementation of the law while the legal process was ongoing. As of this writing in 2025, the case is at a standstill, leaving Minnesota — like the ultimate Drummond outcome — in a state of uncertainty.
Minnesota lawmakers seem unlikely to change Minnesota’s current policies to allow religious charter schools. However, if the federal government does allow religious charter schools in the future, Minnesota will need to be prepared. Lawmakers will have to draft new guidelines; educators and organizers will have to be prepared to open more schools, hire new faculty members, and educate more children. Additionally, Minnesota’s prohibition against religious charter school authorizers will likely come under intense legal scrutiny for violating the Free Exercise Clause. Reforming this aspect of Minnesota’s charter school system will protect the state against future lawsuits and prepare Minnesota for a more inclusive, more religiously free future.
