June 23, 2022

Kevin Welner: How Supreme Court ruling lays groundwork for religious charter schools

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Kevin Welner, attorney and education policy scholar, wrote for Valerie Strauss’s Answer Sheet blog at the Washington Post, explaining some of the ramifications of the Supreme Court decision requiring Maine to fund private religious schools.

The Carson decision has an immediate effect only on Maine and similar town-tuitioning programs in Vermont and New Hampshire. These programs serve only a handful of students. Moreover, Roberts points out that Maine, if it does not want to fund the religious private schools, “retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.” Justice Sonia Sotomayor’s dissent suggests the additional option of public schools contracting directly with private schools that agree to provide a public (nonsectarian) education, rather than setting up a school-choice program — thereby distinguishing the process from the 2002 Zelman v. Simmons-Harris precedent that relies on independent parental choice to remove Establishment Clause concerns.

This suggestion from Sotomayor, however, points to a conundrum created by the court’s recent decisions. Once the state sets up a program, it must be open to all — without regard to religious status. So the direct-contracting approach puts the state in the position of picking winners from among the universe of private schools — and excluding religious schools from the eligible pool. For that reason, I don’t share the justice’s confidence that this approach would survive the current court’s scrutiny.

This brings us to charter schools, which are privately operated but publicly funded. Pursuant to the court’s recent decisions (all written by Roberts) in Trinity Lutheran Church of Columbia v. ComerEspinoza v. Montana Department of Revenue and now Carson, states will probably be forced to let churches and other religious institutions apply for charters and operate charter schools. That is, religious status probably cannot be penalized in the process of opening up new charter schools. Would a law be subject to strict scrutiny if it then requires this charter applicant to set aside its religiously motivated beliefs in running the charter school?

Put another way, must this hypothetical church run the charter school as a public school, or can it be run as a religious private school? To a large extent, the answer to the question depends on something called the state-actor doctrine.

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