This summer, the Supreme Court ruled in the case of Espinoza v. Montana that states must allow parents to use vouchers and other similar subsidies to send their children to religious private schools. As Justice Stephen Breyer notes in his dissent, the ruling leaves open the question of whether states that allow for the creation of charter schools—quasi-private educational institutions that are funded by the taxpayers—can permit these schools to be religious. Nicole Stelle Garnett explains the situation:
Across the U.S., 6 percent of all public-school students now attend a charter school, although the proportion is much higher in many urban districts. In contrast to the pervasive, permissible participation of religious schools in private school-choice programs, all charter schools must—by law—be secular. All states with charter programs (as well as federal statutes addressing charter schools) prohibit religious charter schools, and many prohibit religious entities from operating charter schools, even if they are secular.
But, Garnett argues, there is significant legal reason to consider charter schools private and therefore, given the Espinoza decision, it would be constitutionally permissible to allow religious charter schools. This brings Garnett to another question:
[P]rivate-choice, charter-school programs may include religious schools. But must they include them? Enter, again, Espinoza v. Montana. That case squarely raises the question: if religious charter schools are constitutional, are statutes prohibiting them unconstitutional? The answer to that question—which almost certainly will be tested in litigation in the near future—is more straightforward than the answer to the previous one: yes. If charter schools are permissible, religious charter schools must be permitted.
If religious charter schools are constitutionally permissible, then justice—as well as the Constitution—demands that they must be permitted. But that does not mean that all religious schools should become charter schools. The possibility undoubtedly appeals to many religious schools, even in states with private school-choice programs, since charter schools in most states receive substantially more funding than private schools participating in choice programs. In states without private-school choice, the charter option is even more attractive for religious schools, since the alternative to becoming a charter school is no public funding at all.