School Choice & Charters

3 Decades In, Charter Schools Continue to Face Legal Challenges

By Mark Lieberman — December 12, 2023 6 min read
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Three decades have passed since the first public charter school opened its doors. More than 3 million of the nation’s K-12 students now attend them. But debates over how and where charter schools operate are still playing out in courts and statehouses across America.

The latest bump in the road for the expansion of charter schools came Dec. 11 in Kentucky, as Franklin County Circuit Judge Phillip Shepherd declared unconstitutional the state’s law setting up a funding stream for charter schools.

The law requiring districts to send portions of their revenue to charter schools passed in 2022 despite fervent objections and a veto from Gov. Andy Beshear, a Democrat. Shepherd wrote in his ruling that the law amounts to approving “taxpayer funded private schools that are exempted from traditional public oversight and regulation.”

Similar litigation is unfolding in Montana, where public education advocates are challenging a recently passed state law that established a state commission, separate from the state board of public education, for considering applications for charter schools and exempting those schools from most regulations that apply to the state’s public schools.

And in Oklahoma, a fierce legal dispute over whether to allow a religious charter school to open could go all the way to the U.S. Supreme Court.

The vast majority of states allow charter schools to operate as publicly funded, privately operated alternatives to traditional public schools. The only remaining holdouts are Nebraska, North Dakota, South Dakota, and Vermont, according to the National Charter School Resource Center, a federal database.

But the proliferation of charter schools hasn’t quieted criticism and concern from some corners—even as measures authorizing public funds for private schools and homeschooling are the subject of more legislative momentum and resulting legal challenges. School districts and advocacy organizations have pushed repeatedly for courts to rule on whether charter schools undermine states’ constitutional commitments to provide public education for all students.

That line of inquiry is particularly salient now as traditional public schools and public charters alike grapple with declining enrollment as the national birth rate slows, said Tom Hutton, executive director of the California Charter Authorizing Professionals, and an expert on education law.

Schools, which are funded in large part based on the number of students they enroll, are becoming increasingly sensitive to the prospect of increased competition, said Hutton, whose organization represents entities that grant the charters that allow charter schools to open.

“The question of charters’ interrelationship with the larger public school system—those questions are being called that we maybe danced around for a long time,” Hutton said.

Courts typically rule in favor of allowing charter schools to proceed, with a handful of exceptions. Georgia sought and received majority support for charter schools from voters in 2012 after a court knocked down the state’s charter school law the year before. In Washington state, the state supreme court declared charter schools unconstitutional in 2015 and then backtracked in 2018 after state lawmakers tweaked the funding mechanisms.

Kentucky joins that short list—for now. The state, which has allowed charter schools under a 2017 law and had already received a proposal for one charter school, will likely appeal the ruling to Kentucky’s supreme court.

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If the ruling stands, though, Kentucky lawmakers who want charter schools will have to secure approval for a referendum to settle the constitutional questions, Shepherd wrote. The referendum could simply affirm the state’s charter law, or it could seek to amend the state’s constitution to explicitly permit charter schools.

Previously, the state’s supreme court last year invalidated a program that allowed taxpayers to claim state tax credits for their contributions to organizations that offered education savings accounts, which families could put toward private school tuition or other education expenses.

Charter schools highlight sometimes blurry distinctions between public and private education

Charter schools emerged three decades ago, in part out of concerns that some students, particularly in urban areas, needed more flexible alternatives to the rigidity of the traditional public school model for instruction.

These schools combine state funding and oftentimes philanthropic support to run their programs. Some are operated by independent nonprofit or for-profit providers, while others are part of larger charter management organizations. Many have open enrollment policies similar to public schools, though some admit students through lotteries.

The movement for private school choice in recent years has shifted focus away from charter schools. Plus, bipartisan support for the sector has cooled, with the Biden administration and charter boards in several states currently tussling in court over new federal rules that make it harder for charter schools to receive federal funding.

Instead, private school choice proponents have gravitated toward options such as vouchers, education savings accounts, and tax-credit scholarships—public dollars that parents can use to pay for private school tuition, fees, and other related expenses.

Those programs, too, have faced legal challenges arguing that they violate constitutional bans on public funding for private education. In Wisconsin, a currently pending lawsuit is aiming to strike down the state’s approach to both vouchers and charter schools.

Preston Green, a professor of education at the University of Connecticut who has written extensively about legal and political issues around charter schools, sees a connection between those efforts and those of charter school advocates.

“For a lot of these states, it is a real push towards the funding of private education by any means necessary, be it charter schools, or vouchers, or both,” Green said. “Charter schools, because of their murkiness, they can be used in a variety of ways.”

They also operate quite differently from one state to the next. In some states, school boards or district leaders are the only eligible authorizers for charter schools. Elsewhere, though, states establish charter commissions or permit departments of education to play a role.

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Robert Hill, Head of School at Alice M. Harte Charter School, talks with students in New Orleans on Dec. 18, 2018.
Robert Hill, Head of School at Alice M. Harte Charter School, talks with students in New Orleans on Dec. 18, 2018. Charter schools have taken a backseat in school choice debates to policies expanding private school choice.
Gerald Herbert/AP

That’s one of the issues at hand in Montana. State lawmakers passed two separate bills related to charter schools: one that allows school districts the ability to approve charter schools within their boundaries, and another establishing a state commission to assess charter school applications on its own.

In September, a district court judge in Montana’s Lewis and Clark County signaled he believes the latter policy violates the state constitution because it allows prospective schools to bypass the state board of public education.

The separation of church and state is under increased scrutiny

The ripple effects from the disputes in Kentucky and Montana may pale in comparison to the looming decision in Oklahoma over whether religious charter schools violate the U.S. Constitution’s provision barring the government’s establishment of a religion.

Ryan Walters, head of the state’s education department, has recently petitioned to formally advocate in favor of the school as the case unfolds before the Oklahoma Supreme Court. Judges have denied those requests, citing the state attorney general’s role as a plaintiff arguing the school should not open.

The proposal for a religious charter school is emblematic of the inherent complexities of charter schools.

Those pushing for the school to be approved argued that states offering money to private schools also have to offer them to charters. But charter school proponents often argue the opposite: their schools aren’t taking away from public schools because they are, in fact, public schools.

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The Supreme Court on Wednesday afternoon, April 19, 2023, in Washington.
The Supreme Court on Wednesday afternoon, April 19, 2023, in Washington.
Jacquelyn Martin/AP

The U.S. Supreme Court’s conservative majority could foreshadow a ruling on these questions that significantly departs from recent precedent, Hutton said.

“Those of us who believe in charter schools want to loudly assert they are public. There are areas in which we have created these hybrids,” Hutton said. “Even this many years into the charter movement, nationally people are wrestling with this.”

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