By Olivia Lechnir.
St. Isidore and Arizona’s Penchant for Charters
Two lawsuits are currently pending before the Oklahoma Supreme Court and District Court of Oklahoma County regarding St. Isidore Virtual Catholic Charter School, seeking to block the school’s opening for the 2024-2025 school year. If St. Isidore prevails, it will become the first religious charter school to operate in the Nation. This will have large implications not only for the educational landscape across the country, but specifically Arizona, the Nation’s leading state in charter school usage.
Arizona has already shown great interest in exploring alternatives to traditional public education, such as charter schools and school choice programs. According to the National Alliance for Public Charter Schools, about 21% of Arizona’s public school students attend charter schools. Arizona also has the country’s largest voucher program, which allows parents to use public funds to subsidize their children’s attendance at private and religious schools and other educational expenses.
Last June, the Oklahoma Statewide Virtual Charter School Board approved St. Isidore’s application for a charter, over concerns from some members that approving an openly religious charter school was unconstitutional. A lawsuit was filed against St. Isidore’s opening as a charter school soon after, and the Oklahoma Attorney General later filed suit as well.
But first, some clarification on a few key terms. Charter schools are public schools. They are independently operated and, unlike private schools, they are publicly funded and tuition-free. For example, Arizona defines “charter school” as “a public school established by contract with the state board of education.” Oklahoma’s state statutes provide a nearly identical definition.
SCOTUS, Schools, and Constitutional Religious Protections
The Supreme Court has handed down many rulings on constitutional religious protections when it comes to schools, grappling with both the freedom to exercise religion as well as the freedom to be free from a governmental establishment of religion (i.e., the traditional separation of church and state). The doctrine and interaction between these two religious constitutional protections is complex, and has developed over time. Early Supreme Court cases upheld a strict separation between church and state, in cases like Engel v. Vitale (1962) and Abington v. Schempp (1963). However, more recent cases in the Roberts Court era have sharply favored expanding protections for the Free Exercise Clause—at the expense of protecting the Establishment Clause.
This movement toward favoring free exercise rights has largely coincided with the rise in popularity of private schools, voucher programs, and school choice. In the 2022 case, Carson v. Makin, the Supreme Court held that excluding private religious schools from receiving some public funding through voucher programs is unconstitutional, as a violation of the schools’ and parents’ free exercise rights. Some, like the advocates defending St. Isidore, are now attempting to extend that protection to full public funding of charter schools.
Charter Schools as State Actors
However, others argue that there are important differences between private religious schools and a proposed religious charter school, namely that charter schools are state actors unlike private schools. This is because charter schools are public schools—by law and by the words of state statutes themselves—and public schools are state actors. The Fourth Circuit recently affirmed that charter schools are state actors in a 2022 case called Peltier v. Charter Day School. Thus, because charter schools are state actors, religious charters would constitute an unconstitutional establishment of religion.
Defenders of St. Isidore are arguing that St. Isidore’s contractual charter with the state provides a degree of separation that allows it to avoid the regulations of being a state actor, thus rendering the school constitutional. Some scholars have even argued that religious charters are entitled to the protections of the Free Exercise Clause but not bound by the Establishment Clause.
Proponents of the lawsuit, on the other hand, argue that when state legislatures explicitly define charter schools as “public schools,” it would infringe on the state’s “sovereign prerogative” for a court to decide the opposite. Further, they caution that allowing religious charter schools, as opposed to merely private religious schools already in existence, would authorize nothing short of direct governmental funding of discrimination, since such religious schools could claim religious exemptions from discrimination safeguards like Title IX.
The Next Canon in America’s Education System?
Both cases pending against St. Isidore are still unfolding and have yet to hear oral arguments. Either way, this developing legal ground is sure to impact Arizona’s educational landscape, as Arizona is already the Nation’s leading user of both charter schools and voucher programs. If St. Isidore succeeds, religious charter schools could proliferate in Arizona. And if St. Isidore does fail, given Arizona’s prevalence of charter schools, another similar constitutional challenge may very well come next from the Grand Canyon State.
