A hypothetical dialogue explains the issues: “We will see you in court”
Applicant: Hi, we’d like to apply to start a charter school.
Authorizer: Great. Thank you for your interest. What’s the name of the nonprofit that will be submitting the application?
Applicant: St. Mary’s Community Services
Authorizer: St. Mary’s? Is that a religious organization?
Applicant: Yes, it is. We are a Catholic entity. We’ve been providing support to low-income families in the city for more than a century. We’d like to start a charter school so that we can help more young people.
Authorizer: I’m sorry, our state law explicitly prohibits religious organizations from running charter schools. We won’t be able to consider your application.
Applicant: Hmm. Just so I’m clear: You will accept applications and consider proposals from all nonprofits except those with religious affiliations?
Authorizer: Yes, that’s correct.
Applicant: But I read the recent Espinoza decision, and the US Supreme Court ruled that state governments can’t use an organization’s faith-based status as a reason to exclude its participation in a government-supported educational program. That kind of blanket prohibition on religious groups violates the Free Exercise Clause by punishing organizations for their faith affiliations.
Authorizer: Espinoza was about religious private schools participating in a private-school choice program. That’s different than charter schooling. Charters are public schools.
Applicant: That shouldn’t matter. In the Espinoza decision, Chief Justice Roberts wrote, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The same logic applies here. Our state didn’t have to create a charter school law, but once it did, and invited nonprofit organizations to apply for charters, it opened up school operation to all types of nonprofits, including faith-based nonprofits.
Authorizer: That can’t be right. Any number of state and federal laws and court rulings make it clear that public schools are secular schools. In fact, there are many Supreme Court cases over the last several generations that separated public education from religion—like bans on teacher-led prayer and Bible readings.
Photo: Kendra Espinoza with her two daughters at Stillwater Christian School in Kalispell, Mont. (Institute for Justice)