Mapping the US’ Shifting Educational Landscape

Notre Dame professor discusses current legal cases’ potential impact.

Nicole Garnett of the University of Notre Dame
Nicole Garnett of the University of Notre Dame (photo: Barbara Johnston / University of Notre Dame)

Nicole Garnett is a professor at the University of Notre Dame Law School and a fellow of the university’s Institute for Educational Initiatives.

A widely cited expert on Catholic education and school-choice policies, she is the author of Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America (with Margaret F. Brinig, University of Chicago Press, 2014) and a senior policy adviser for the Alliance for Catholic Education, a program engaged in a wide array of efforts to strengthen and sustain K-12 Catholic schools.

Now, as the Archdiocese of Oklahoma City prepares to file an application with the Oklahoma Statewide Virtual Charter School Board that, if approved, would allow the archdiocese to run the first religious charter school in the nation, and as the U.S. Supreme Court separately asked the Biden administration to weigh in on a charter-school case out of North Carolina, Garnett discussed the promises and perils of our shifting educational landscape with Register Senior Editor Joan Frawley Desmond in a Jan. 11 interview.

Oklahoma Attorney General John O’Connor issued a Dec. 1 legal opinion that cited key Supreme Court rulings on school choice and parental rights and concluded that religious groups should be permitted to participate in the state’s virtual charter-school program. “Non-sectarian and non-religious requirements found in … the Oklahoma Charter Schools Act likely violate the First Amendment to the U.S. Constitution and therefore should not be enforced,” he wrote. Your thoughts?

The attorney general’s letter was very well done, in the sense that you can disagree with it or agree with it, but it’s very clear.

The letter lays out [the implications] of three U.S. Supreme Court rulings: Trinity Lutheran Church of Columbia v. Comer (2017), Espinoza v. Montana Dept. of Revenue (2020), and Carson v. Makin (2022).

The rulings make clear that when the government extends a benefit to private organizations to do something for a public benefit, the government may not exclude religious organizations because they’re religious.

In Espinoza and Carson, the Court establishes the following baseline: The government need not subsidize private education, but if it chooses to do so it may not refuse to subsidize religious instruction, if that’s the choice of the parents.

So if the government sets up a private school-choice program, it can’t exclude religious schools because they’re religious, as that would violate the Free Exercise Clause.

Just to clarify terms, what’s the difference between private school-choice programs and charter schools?

Private school-choice programs provide funds for students to attend existing private schools through mechanisms including tax-credit funded scholarships, vouchers and educational savings accounts [ESAs]. Charter schools are hybrid [entities] created through the charter-authorization process, etc. They are newly created schools, rather than existing private schools. They are privately operated, publicly funded, and designated as “public” schools in all state and federal laws.

Another key issue is whether charter schools should be treated as public schools, correct?

This is a really complicated question: What do you do with a [charter] school that’s called “public” but is privately operated?

If charter schools are for federal constitutional purposes, “public schools” — or “state actors,” in our constitutional-law talk — then they must be secular. The U.S. Supreme Court has held that the First Amendment’s Establishment Clause requires public schools to be secular. But if they are private schools, then Carson applies, and the government not only may allow them to be religious, it must allow them to be religious.

The reason the “state actor” doctrine matters is that the federal Constitution rarely affects private entities, even those that receive government funds. The only time it does affect them is when they are so entwined with, or controlled by, the government that they are [effectively operating as] its agent.

But if a charter school is not very closely controlled by the government, then it is not a state actor — that is, not a private school for federal constitutional purposes, and it is able to be religious.

Yet news stories usually refer to charter schools as public entities that are funded by the government.

Consider that public utilities are not state actors, though they’re called public utilities. Lots of religious and other organizations are publicly funded, but they’re not state actors.

What matters is how much government control there is.

When Oklahoma’s attorney general issued his opinion on religious charter schools, he noted that, in his state, they were not viewed as “state actors.”

The attorney general reasoned that, because they are given a lot of freedom, charter schools in Oklahoma are programs of private choice and, therefore, the Free Exercise Clause requires the government to let them be religious, or at least let [the charter school board] entertain applications from religious entities.

The board may deny the applications for other reasons, but not because the applicants are religious.

Let’s shift to other breaking school-choice news: On Jan. 9, the U.S. Supreme Court asked Solicitor General Elizabeth Prelogar for her views about a case involving a charter school in North Carolina that had been labeled a “state actor.” The charter school had petitioned the court to review that designation. President Joe Biden is less supportive of charter schools than his recent predecessors. Should school-choice activists be worried?

Great question. It’s important to keep in mind that the Supreme Court hasn’t accepted the North Carolina case, which is actually an equal-protection challenge to a dress code at a classical charter school. It has nothing to do with religion.

The relevant question here is whether charter schools in North Carolina are “state actors.”

There is a circuit split between the 9th Circuit and the 4th Circuit on this issue, and there’s a pending cert petition [a request that the Supreme Court order a lower court to send up the record of the case for review].

I filed a brief in that case with the Religious Liberty Clinic at Notre Dame, representing some religious-liberty organizations, Jewish and Muslim groups. The brief talks about the broader religious-liberty implications of the state-action issue outside of the charter-school context.

The court’s request [for guidance from] the solicitor general means that at least four justices are interested in this case. But I suspect that what the Biden administration actually says about the case will not matter one way or the other [as far as whether the Court agrees to hear the case].

If the justices hear the case, would their decision apply to charter-school programs in other states?

Each state has different laws. The Supreme Court may answer this question for North Carolina, but wouldn’t necessarily answer it for New York.

So while the case may be drawing headlines, it will have no clear impact, for example, on the Archdiocese of Oklahoma City’s application to the state charter-school board and similar efforts in other states?

That’s right, but it’s important to keep in mind two other points.

First, as the letter from Oklahoma’s attorney general makes clear, his opinion is not “legally binding.” It’s just an opinion.

Second, even assuming the charter-school board agrees with his guidance, it can still deny the archdiocese’s application for other reasons. It has to be a good application and must satisfy other criteria. That would be true in any state.

Do you foresee a patchwork of charter and private school-choice programs across the country, depending on red and blue-state priorities for education reform?

Charter schools generally are under fire far more than they were in the past. They used to be the darling of the left and the right.

Obama made them the center of his education policy. He didn’t like school choice that involved private schools, but he loved charter schools.

Now, lots of states are not granting charters at all.

So even opening up the door to religious charter schools doesn’t mean that some states will allow them, as they’re not granting any new charter schools. It could be that private school choice just eclipses [the charter-school movement], and [the religious charter-school option] becomes an interesting Free Exercise debate more than a big ground-shifting issue in education.

Some Church leaders have told me they oppose religious charter schools because their Catholic identity could be compromised with increased government oversight.

I’ve had discussions with people on both sides of the school-choice debate about this.

Some who are very pro-private school choice think religious charter schools are a terrible idea.

It’s just really important to emphasize that what the Constitution requires and what’s a good idea for religious organizations are two very different things.

It could be permissible for religious organizations to run charter schools. But sometimes it could be a bad idea for them to do so.

In a state that already has vouchers or education savings accounts, it might be better to go that way, even if it means less money.

It will take prudential judgment to consider the tradeoffs, even if this becomes an option.

And that’s a different question than what the Free Exercise Clause requires.

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