In a recent formal letter, the attorney general of Oklahoma opined that state laws prohibiting the creation of religious charter schools violate the First Amendment. Charter schools are privately run but receive public funds, and thus find themselves in an ambiguous position between public and private educational institutions. Nicole Stelle Garnett argues that the attorney general is correct:
Forty-four states have charter-school laws. All, like Oklahoma, have required charter schools to be secular and most, like Oklahoma, also prohibit them from being operated by or affiliated with religious institutions. The constitutionality of these restrictions [is at issue], especially since the Court’s decision in Espinoza v. Montana two years ago, which clarified that while “a state need not subsidize private education; . . . once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
Opening the door to religious charter schools will result in the creation of new religious schools, adding valuable pluralism to the American educational landscape. Many parents will embrace them for their children, and education reformers should, as well. Of course, not all religious schools will become charter schools. Many may reasonably choose not to, especially in states with robust school-choice programs, which tend to give participating schools even more freedom than charter laws do. But the question whether religious organizations should operate charter schools is not the same as the question whether they should be permitted to do so. The first question turns on prudential judgment; the second turns on the meaning of the First Amendment.