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charter schools
SCOTUS’ Next Move: Taxpayer-Funded Religious Schools?
A landmark case could force taxpayers to fund religious charter schools.
Apr 02, 2025
On April 30, the U.S. Supreme Court will hear a case that could fundamentally reshape public education: Oklahoma’s controversial approval of the nation’s first religious charter school, St. Isidore of Seville Catholic Virtual Charter School. The case forces a critical question to the forefront—should taxpayers be compelled to finance religious schools while having no authority to regulate them?
The court’s decision could continue a pattern of rulings that have chipped away at the traditional separation between church and state, transforming the landscape of public education and public funding. If the justices side with St. Isidore, the ruling could mark a turning point in American schooling—one that may erode public accountability, alter funding priorities, and blur the constitutional boundaries that have long defined the relationship between religion and government.
This case builds on a series of decisions from the Roberts Court that have steadily eroded the wall between church and state. In Trinity Lutheran v. Comer, the court allowed public funds to be used for secular purposes by religious institutions. Espinoza v. Montana Department of Revenue expanded this principle, ruling that states cannot exclude religious schools from publicly funded programs. And in Carson v. Makin, the court went further, mandating that state voucher programs include religious schools, arguing that exclusion constitutes discrimination against religion.
As the justices deliberate, they would do well to consider not just the legal arguments, but also the practical and moral consequences of their decision.
Chief Justice John Roberts, writing for the majority in Carson, stated, “[i]n particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” On its face, this reasoning frames the issue as one of fairness—ensuring religious entities are not treated unequally. But the deeper implications of this logic are far more radical.
As Justice Sonia Sotomayor warned in her dissent, this interpretation fundamentally redefines the Free Exercise Clause, equating a government’s refusal to fund religious institutions with unconstitutional religious discrimination. Justice Stephen Breyer took this concern a step further, pointing to the court’s own precedent to highlight the dangerous trajectory of its rulings:
We have previously found, as the majority points out, that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.” We have thus concluded that a State may, consistent with the Establishment Clause, provide funding to religious schools through a general public funding program if the “government aid… reach[es] religious institutions only by way of the deliberate choices of… individual [aid] recipients.”
Breyer then underscored the significance of this distinction:
But the key word is “may.” We have never previously held what the court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
Finally, he distilled the implications into a warning: “What happens once ‘may’ becomes ‘must’?”
That shift—from allowance to obligation—could force states not only to permit religious education in publicly funded programs, but to actively finance it, eroding any semblance of neutrality between public and religious schooling. This transformation threatens to unravel the Establishment Clause’s core protection: that government does not privilege or compel religious exercise.
Now, the Oklahoma case brings Breyer’s warning into sharp focus. The petitioners are asking the court to declare that charter schools are not state actors—meaning they would be free from public accountability and regulations, including those related to discrimination or special education. At the same time, they argue that public funds must be made available to religious charters. The implications of such a ruling could reverberate across the country, reshaping education in profound and troubling ways.
The May-to-Must Transformation and Its Far-Reaching Consequences
If the Court sides with St. Isidore, the ripple effects could be seismic, triggering a wave of religious charter school applications and fundamentally altering the landscape of public education. Here’s how:
- A Surge in Religious Charter Schools
Religious institutions, particularly those struggling to sustain traditional parochial schools, would have a financial lifeline. Charter subsidies, which often surpass voucher amounts, would incentivize religious organizations to enter the charter school market. For years, leaders in some religious communities have sought public funding to buoy their schools, and a decision in favor of St. Isidore could provide the legal green light. The result? A proliferation of religious charters, funded by taxpayers but largely free from public oversight.
- Erosion of Protections for Students with Disabilities
The implications for students with disabilities are especially concerning. Under the Individuals with Disabilities Education Act’s implementing regulations, a student with disabilities who is “placed in or referred to a private school or facility by a public agency…[h]as all of the rights of a child with a disability who is served by a public agency.” Yet, a ruling in favor of St. Isidore risks undermining these guarantees by creating a loophole for private religious charters to skirt IDEA’s requirements.
This concern is not just theoretical. As I’ve argued elsewhere, the hybrid nature of charter schools already complicates questions of accountability and state action, particularly when it comes to safeguarding student rights. Allowing religious charters to operate free from IDEA’s obligations would further erode the fragile legal protections students with disabilities rely on—protections that are already too often disregarded in practice.
- Undermining Public Health and Safety Policies
The pandemic underscored the challenges of balancing public health mandates with constitutional protections for religious freedom. In 2020, a federal judge in Kentucky struck down the state’s attempt to close religious schools during a Covid-19 spike, even as public and secular private schools complied. Extending public funding to religious charters could further erode the state’s ability to enforce neutral regulations, from health measures to curriculum standards. Such decisions privilege religious institutions over secular ones, creating a patchwork of inconsistent rules that could undermine public safety and equity.
Toward Transparency and Accountability
Can these challenges be mitigated? Some experts argue for stricter regulations to preserve the public nature of charter schools. Bruce Baker, a professor of education finance, suggests limiting charter authorization to government agencies and requiring boards and employees to be public officials. Such reforms could ensure that charters remain accountable to taxpayers and subject to the same constitutional constraints as public schools.
Other scholars, like Preston Green and Suzanne Eckes, propose requiring religious charters to forgo certain exemptions if they wish to receive public funding. Specifically, they recommend restructuring charter school boards as government-created and controlled entities to ensure they are unequivocally recognized as state actors subject to constitutional obligations. For example, this would require religious charters to comply fully with anti-discrimination laws and other public mandates, maintaining the balance between religious freedom and public accountability.
The Larger Threat to Public Education
Even with these potential safeguards, the broader implications are sobering. If the court rules in favor of religious charters, states will face difficult choices: increase taxes to fund an expanding universe of religious and secular schools, divert money away from public schools, or create new bureaucracies to regulate religious institutions. Taxpayers could find themselves funding schools tied to a bewildering array of faiths, from mainstream denominations to fringe sects.
As the justices deliberate, they would do well to consider not just the legal arguments, but also the practical and moral consequences of their decision. What happens to a society when its public institutions are splintered along religious lines? And what happens to the students and families who depend on those institutions for equity, opportunity, and inclusion?
The answers to these questions will shape the future of American education—and the values we choose to uphold.
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State-Level GOP Attacks on Public Schools Decried as 'Part of a National Playbook'
The latest Republican efforts include an Indiana bill to dissolve entire school districts where over half the students are enrolled in private or charter schools.
Jan 12, 2025
Critics are sounding the alarm on a fresh wave of attacks on public schools by Republican state lawmakers, calling their efforts part of a broader agenda to privatize public education.
Indiana's H.B. 1136—introduced by Reps. Jake Teshka (R-7), Jeffrey Thompson (R-28), and Timothy O'Brien (R-78)—would dissolve public school districts in which more than 50% of students attend private or charter schools based on fall 2024 averages. All remaining public schools in affected districts would be converted to charter schools, which are privately owned and operated but taxpayer-funded.
According to Capital B Gary, "The bill's provisions are estimated to dissolve five school corporations statewide, including Indianapolis Public Schools, Tri-Township Consolidated School Corporation in LaPorte County, Union School Corporation southeast of Muncie, and Cannelton City Schools near the Kentucky border in Perry County."
Indianapolis Public Schools (IPS) condemned the proposal,
saying it "strongly opposes House Bill 1136 or any bill this legislative session that threatens local authority and community control of public schools."
Anyone who believes that the Right only wants to bring "choice" and is not about destroying public schools, read this. (and please don't tell me that a charter school is a public school) www.chalkbeat.org/indiana/2025...
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— CarolCorbettBurris (@carolburris.bsky.social) January 8, 2025 at 5:16 AM
"H.B. 1136 proposes dissolving five school corporations, including IPS, by converting schools to charter status and eliminating local school boards," the district continued. "This harmful legislation would strip communities of their voice, destabilize our financial foundations, and further jeopardize the education of approximately 42,000 students."
IPS asserted: "H.B. 1136 threatens to cause massive disruption to our public school system, diverting attention and resources away from the vital education and support our students need to succeed. This legislation is not student-focused and fails to reflect the community's input on how they envision their public schools thriving."
"Instead of fostering growth and innovation, H.B. 1136 risks dismantling the very foundation that supports student success and community collaboration," the district added.
"H.B. 1136 threatens to cause massive disruption to our public school system."
The Indiana Democratic Party
said on social media in response to the bill: "The GOP supermajority is continuing their attacks on local public schools. This time, they're threatening to dissolve dozens of schools across the state into charters, leaving around a million Hoosiers without a traditional public school option."
"For years, many public schools have struggled with funds being diverted to charter schools with no accountability," the party added in a separate post. "Our public schools are the backbone of communities across the state, and we must protect them. More charter schools means less oversight for taxpayers."
Indiana state Sen. Andrea Hunley (D-46), a former IPS teacher and principal, told Capital B Gary: "My children have been attending IPS schools for 11 years. And I am so concerned about the fact that in this place where the majority likes to say that they want choice for families, that they would be threatening to take away choice from a family like mine right here in the middle of our city."
"We've got to make sure that we stop this before it goes any further," she added.
Indiana state Sen. Fady Qaddoura (D-30), who also represents Indianapolis, told WXIN last week, "I think this bill has a racial component by advancing discriminatory policies that are targeting the two largest minority communities in the state of Indiana."
"In my view," he added, "this piece of legislation had nothing to do with choice and has everything to do to continue to dismantle public education as we know it today in Indiana."
It's not just Indiana. Attacks on public education are afoot in states across the nation, including neighboring Ohio and Kentucky.
At the national level, progressives are warning that the imminent Republican trifecta—with GOP control of both chambers of Congress and, later this month, the White House—likely portends a massive attack on public education that could include ending the Department of Education, as advised in Project 2025, the Heritage Foundation-led blueprint for a far-right overhaul of the federal government.
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Expansion at Any Cost Is the Only Thing the Charter School Industry Knows
And the destruction of public education remains the goal.
Sep 17, 2023
When an Oklahoma state school board approved what would become the nation’s first taxpayer-funded religious charter school, opponents of the proposal called it “deeply un-American” and “a flagrant violation of long-standing constitutional law.” An Oklahoma parents group and a handful of state and national civil organizations filed a pair of lawsuits to block the new school. Creating a taxpayer-funded religious school “turns on its head the concept that charter schools were supposed to be public schools,” American Federation of Teacher president Randi Weingarten argued.
Indeed, they were supposed to be public schools. But anyone who has been watching the devolution of charter schools could see this coming from a mile away.
The magical transformation of what should be a public school to a taxpayer-funded private school is not a trick confined to Oklahoma.
Charter schools, which were originally proposed to be district-run, innovative public schools, have since morphed into national charter school chains, Christian nationalist schools, and facades for for-profit corporations.
From charter schools in churches with websites displaying crosses to “faith-friendly” charters, the charter industry has been flirting with religiosity for years. Under former Education Secretary Betsy DeVos, the federal Charter School Programs were given the green light to award grants to religious organizations that own or operate charter schools.
The magical transformation of what should be a public school to a taxpayer-funded private school is not a trick confined to Oklahoma, nor does the hocus-pocus turn solely on the question of religion.
During the 2021-2022 school year, 20 percent of all charter school students were enrolled in a school run by a for-profit company. This allowed these companies to evade laws and regulations by using a nonprofit school as a facade. And it is but a small hop over a line drawn in the sand to move from the federal government funding a religious organization to run charters, to funding charters that provide religious instruction in classrooms. It only takes a strong breeze, and the sand lines disappear altogether.
The magical transformation of what should be a public school to a taxpayer-funded private school is not a trick confined to Oklahoma, nor does the hocus-pocus turn solely on the question of religion.
Even as quasi-religious and perhaps overtly religious charter schools are on the rise, there is another effort intent on blurring the line between public and private.
A recent bill passed in North Carolina, a state in which a large proportion of charters run by for-profits, dismisses other features that determine whether or not charter schools, in fact, deserve the title “public.”
Charter schools are supposed to be “free and open to all” without discrimination or favor. But HB 219, passed by a Republican supermajority legislature over the veto of Democrat Governor Roy Cooper, allows charter schools to charge tuition and grant enrollment privileges to certain students. With the bill’s passage, North Carolina’s under-enrolled charter schools can now enlist both foreign and out-of-state students on a tuition basis. How will under-enrollment be defined?
Since the bill also allows nearly uncontrolled expansion of existing charter schools, finding space for tuition-paying students will not be difficult. Who will pay the tuition bill—the state, the foreign nation, or the family? North Carolina left that question unaddressed, but the likely outcome will be families, which favors the wealthy.
Not only does North Carolina challenge the definition of a charter school as a free school, but it also flaunts the idea that charters are open to all. The new law erodes equal access to charter schools in the state by giving enrollment privileges to special groups, allowing charter schools to shape their student bodies.
This is an extension of what already exists. North Carolina already gave enrollment priority to selected students—beyond what is offered in most other states. Enrollment preferences were already allowed for siblings of present and former students, children or grandchildren of board members and employees of the school (and for the for-profit or nonprofit management company that runs it), and students who attended another charter school.
To these already privileged sub-groups, the state has added foreign exchange tuition-paying students who need not even enter the lottery, children of members of the armed services, and students of private pre-schools selected by the charter.
In a state known for its white-flight charters, high-tuition or religious preschools are likely to enter these “enrollment articulation agreements” that grant their students access privileges.
In 2021, the Network for Public Education was joined by more than sixty civil rights and education advocacy organizations in filing a complaint with the U.S. Department of Education. We argued that the distribution of the state’s grants of the Federal Charter School Programs to schools that overall were disproportionately whiter and wealthier than the districts in which they were located. There is no doubt that the new laws will only make such disparities worse.
Ironically, the National Alliance for Public Charter Schools, a trade and lobbying organization that adamantly claims that charter schools are free and open to all, not only applauded the passage of HB 219 but gave the bill’s sponsor, Republican state Representative Tricia Cotham a hero award.
That alone is enough to tell us where the industry is going—charter expansion at any cost. It is also why those who care about public education should look beyond the question of religious charter schools to the other features that make schools truly public—features that are slowly being whittled away.
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