The school choice landscape has been in flux of late. Earlier this week, Oklahoma approved the nation’s first religious charter school. In the past two years, seven states have adopted Education Savings Accounts or expansive school voucher programs, and the legal status of state “Blaine amendments” is very much in question. It seemed like a good time to check in with Nicole Stelle Garnett, the John P. Murphy Foundation Professor of Law at Notre Dame, the author of Lost Classroom, Lost Community: Catholic Schools’ Importance in Urban America, and the legal scholar probably most responsible for advancing the notion of religious charter schools. Here’s what she had to say.
Rick: Oklahoma just approved the nation’s first religious charter school. You’ve been in the middle of that. Can you explain what this is about and where things stand?
Nicole: On June 5, the Oklahoma Statewide Virtual Charter Board voted, 3-2, to approve the nation’s first religious charter school, St. Isidore or Seville Catholic Virtual School. The school, which is a joint project of the Archdiocese of Oklahoma City and the Diocese of Tulsa, will serve all students in the state, with the goal of bringing a high-quality, Catholic education to those who otherwise lack access to it. The road to this approval had many twists and turns. In December 2022, the former Oklahoma attorney general concluded that laws prohibiting religious charter schools are unconstitutional. He reasoned that “[t]he State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.” Earlier this year, however the current Oklahoma AG disagreed with his predecessor’s opinion letter. He has publicly disagreed with the Virtual Charter School Board’s approval decision, arguing that it is contrary to Oklahoma law. It is likely that the decision will be challenged in court.
Rick: What are the larger implications of this decision in Oklahoma?
Nicole: The implications are more significant for religious liberty than for education policy. Whatever happens in Oklahoma, the legal issue is headed to court—and likely to the Supreme Court. The religious-liberty issues extend beyond charter schools because many government programs require religious providers to secularize in order to participate. It’s important to distinguish the legal questions from prudential questions about whether charter status is a good fit for all religious schools. I’ve taken heat from all sides here. I am first and foremost a private school choice proponent, but I have long criticized education policies that force religious schools to choose between public funds and their faith commitments. I stand by my view that religious organizations have the same right to decide whether to seek charter authorization as secular ones. Religious charter schools are not going to sweep the nation. Charter school authorizations have, unfortunately, slowed to a trickle in many states, and private school choice is ascendant, with many states adopting or expanding programs that allow all or most parents to use public funds to send their kids to religious schools. Literally millions more children are about to become eligible to participate in new or expanded private school choice programs. Where available, many religious organizations might reasonably decide to forgo the rigmarole of the charter-authorization process and participate in private school choice, even though the per-pupil funds available in these programs are typically lower than those made available for students attending charter schools.
Rick: You’ve been deeply involved in the push to legalize religious charter schools. From that vantage point, can you explain the issue to someone who hasn’t followed it closely?
Nicole: This is fundamentally a religious-liberty issue. The Constitution prohibits religious discrimination under the First Amendment. As the Supreme Court held, in 2020 in Espinoza v. Montana, “A state need not subsidize private education. But once it decides to do so, it cannot disqualify some private schools solely because they are religious.” In dissent, Justice [Stephen] Breyer asked, “What about charter schools?” It’s a good question. If charter schools are, for federal constitutional purposes, private schools—in technical terms, if they are not “state actors”—then states can’t prohibit them from being religious. The court has made clear that the answer to this question doesn’t hinge on what charter schools are called or how they are funded but on whether their actions are effectively government actions. Because the answer is no, at least in most states, they must permit religious charter schools.
Rick: I’m struck by the big shifts we’re seeing regarding the legal landscape of school choice. You first got involved in the legal fights around school choice regarding Milwaukee and Cleveland in the 1990s. What drew you to the issue of school choice, anyway?
Nicole: As an undergrad, around 1991, I heard Polly Williams—an architect of the first modern voucher program—give a talk comparing the simplicity of choice to the complexity of court-ordered busing. It made so much sense; I was converted. A few years later, as a young attorney, I joined the Institute for Justice to help defend the constitutionality of voucher programs.
Rick: You’ve been involved with school choice since the early days. So, legally speaking, what are the biggest changes from then to now?
Nicole: Everything. When I started working on voucher cases in 1996, there were two small programs in Milwaukee and Cleveland. We were fighting the argument—which the Supreme Court rejected in 2002—that the establishment clause prohibits using public funds at religious schools. In 1997, I filed the first lawsuit arguing that the exclusion of religious schools from voucher programs violates the free-exercise clause. Twenty-six years later, the court finally agreed in a case called Carson v. Makin, which it decided in 2022. Even after the court upheld vouchers, the political and state constitutional hurdles—especially the so-called “Blaine Amendments”—to expanding parental choice remained formidable. Yet today, 30 states have private school choice programs that serve over 700,000 students. Six states have universal ESA programs. Most state-constitutional challenges have failed, and the Supreme Court has rendered most Blaine Amendments a dead letter. It’s incredible.
Rick: For those less familiar with the terminology and some of this history, can you explain what Blaine Amendments are and why they’re significant?
Nicole: In 1875, U.S. Rep. James Blaine of Maine sought to amend the U.S. Constitution to prohibit public funding of “sectarian” schools. The amendment failed narrowly, but many states subsequently included a “Baby Blaine” in their constitutions—some were required to do so as a condition of statehood. All told, about 38 states have some version of a Blaine Amendment. That Blaine Amendments are a remnant of our unfortunate history of anti-Catholic bigotry is uncontested. After Zelman, opponents of parental choice shifted to challenging programs in state courts, arguing that the Blaine Amendments required a greater degree of church-state separation than the federal Constitution. In several recent cases, including Carson, the Supreme Court effectively rendered most Blaine Amendments a dead letter by making clear that states cannot rely on their constitutions to justify excluding religious schools from parental-choice programs.
Rick: Obviously, what you see as a healthy respect for free exercise raises, for some educators and parents, significant concerns about a lack of separation between church and state. What would you say to address their qualms?
Nicole: As a matter of federal constitutional law, the question was settled over two decades ago. The federal establishment clause requires government neutrality toward religion. It does not require a complete “separation of church and state”—words that do not appear in the Constitution. And, in Carson, the court made clear that government neutrality works both ways. Government may not favor religion, or religious schools, but it also may not disfavor them. It’s important to keep in mind that parental-choice programs do not fund religious schools, they fund children. True, they give parents the option of choosing to send their children to a religious school, using the public resources allocated for their children’s education. But no money flows to any school unless the parent chooses it for their child. That is no more problematic than students choosing to use their Pell Grants to attend the University of Notre Dame, where I teach. The government isn’t directing the money to a religious school, private individuals are.
Rick: Another recent, big development in school choice relates to the adoption of ESAs by a number of states. Can you talk a bit about how you see things?
Nicole: ESAs shift the conversation from “school choice” to “parental choice,” allowing parents to customize their kids’ education. I just edited a book of essays by Jack Coons, The Case for Parental Choice. For over six decades, Jack, now 93, has reminded us that parents are often ignored by the education establishment, even though they know their children better, and love them more, than anyone else. ESAs recognize that—which is good. Choice is expanding beyond my wildest imagination. I’m thrilled. But I’m also concerned that, without effective implementation, choice programs won’t achieve their transformational potential. Implementing ESAs in particular will be a heavy lift. We have our work cut out for us, but it is a good problem to have.
Rick: For educators or parents who don’t closely track these debates, what are the big legal questions that will be emerging over the next couple years? And what’s the chance that one or more of them will have an outsized impact on the shape of schooling?
Nicole: As far as private schools go, the biggest legal questions likely will be about the range of regulations that can be imposed on religious schools as a condition of receiving public funds, especially regulations that may raise religious-liberty concerns. Conservative skeptics cite regulation as a reason for opposing religious charter schools, but there is a risk of regulatory creep in private school choice programs, too. Many choice proponents assume that these programs will promote maximal freedom, and it is true that most schools participating in programs like ESAs are—and have historically been—lightly regulated. But that can change. I’ve been doing some comparative research on the funding and regulation of faith-based schools globally. In many—perhaps most—other countries, religious schools receive public funds but enjoy very little autonomy from government control. In the U.S., the opposite has been true. Private schools have received little public funding but enjoyed maximal autonomy. It is unclear the extent to which the free-exercise clause protects against overregulation, and the issue will undoubtedly be litigated extensively in the future. Whatever the ultimate resolution of the constitutional question, extent and nature of the regulations in parental-choice programs will shape the extent and nature of the landscape of parental choice: If regulators continue to tread lightly, hopefully, most private schools will choose to participate in these programs—and new schooling models will emerge. More kids will have access to more and better educational options. But if there is overreach, some schools—and other education providers—will opt out, and there will be less innovation. And that would be a shame.
The opinions expressed in Rick Hess Straight Up are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.