On April 30, the U.S. Supreme Court will hear a pivotal case concerning whether a charter school can teach a religious curriculum. The Oklahoma Statewide Virtual Charter School Board v. Drummond addresses Oklahoma’s St. Isidore of Seville Catholic Virtual School’s attempt to become the nation’s first publicly funded religious charter school.
This case was always intended to go to the Supreme Court, again testing the limits of the separation of Church and State. What is surprising, however, is who has entered the fight against St. Isadore. The National Alliance for Public Charter Schools (NAPCS), which has never met a charter school it did not like, has filed an amicus brief against its existence. This is unexpected from an organization that has supported charter schools run by for-profit corporations, virtual schools with poor outcomes, and even micro-schools, claiming that different models provide needed choice and innovation. When public money is allocated to religious private schools via vouchers, the charter lobby is either supportive or silent in the name of “choice.”
The reason for their present opposition is self-interest. According to the National Alliance for Public Charter Schools, “a decision to allow religious charter schools will throw charter laws into chaos nationwide, resulting in significant financial and operational uncertainties.” Nina Rees, the former long-time CEO of the organization, lamented that a ruling in favor of St. Isadore “could also jeopardize the myriad federal and state funding streams they [charters] currently qualify for—funding that the sector has fought hard to secure and continues to fight for on the premise that students attending public charter schools are entitled to the same funds they would receive in district schools.”
On what basis, then, will SCOTUS make its decision? At the heart of the case is whether charter schools are state actors similar to district public schools or state contractors providing educational services. The Oklahoma State Virtual Charter Board argues that merely because the state legislature declares a charter school “public,” it does not transform it into a public school. Furthermore, even if charter schools are state actors for some functions, they might not be state actors for purposes of the First Amendment, specifically regarding curriculum matters.
There is precedent for their argument.
In 2010, both a federal court and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, determined, in an employment case, that an Arizona charter school was not a “state actor” and thus a wrongful termination lawsuit could not be brought forth by a teacher. “This case presents the special situation of a private nonprofit corporation running a charter school that is defined as a ‘public school’ by state law,” the three-judge appeals court panel said in its unanimous Jan. 4 decision in Caviness v. Horizon Community Learning Center. The court concluded that the corporation running the charter school (private non-profit or for-profit corporations run most charter schools) was not a state actor but a contractor providing a service.
In some states, where districts are the only authorizers of charter schools, charter schools likely fully meet the state actor test. That was the original intent of the charter movement—schools within a district free of some restraints to try innovative practices. However, only a few states still embrace that model, thanks to the relentless pressure from organizations like NAPCS, which have provided St. Isadore with more than enough fodder for its arguments. Over the years, charter trade organizations have successfully lobbied for looser charter laws, expanded charter management organizations, and vigorously defended for-profit corporations like Academica and Charter Schools USA, which use nonprofit schools as a façade. In short, they have made charter schools as “private” and profitable as possible.
Remember how charter schools could secure Paycheck Protection Program (PPP) funds during COVID-19 when public schools could not? Charter trade organizations, including NAPCS, encouraged charter schools to leverage their corporate status, resulting in the sector securing billions of dollars. Some even provided talking points for justification.
The truth is, charter schools have used their private status when it is in their interest, even as they secure an advantage from the public label. That is why the charter lobby and trade organizations have only themselves to blame if the chicken comes home to roost and the sector is thrown into chaos. And if that results in a shake-up of the charter industry and a return to truly public charter schools in most states, maybe that is not a terrible outcome.
Carol Burris, Ed.D. is the Executive Director of the Network for Public Education and the Network for Public Education Action. She served as principal of South Side High School in the Rockville Centre School District in NY from 2000-2015. Carol received her doctorate from Teachers College, Columbia University.
In 2010, she was recognized by The School Administrators Association of New York State as the Outstanding Educator of the Year, and in 2013 she was recognized by the National Association of Secondary School Principals as the New York State High School Principal of the Year. Carol serves as a Fellow of the National Education Policy Center.
