The School Choice Movement

Starting in the 1960s a range of scholars and other advocates began arguing for government-funded “school choice.”Footnote ⁶ They generally depicted the public school system as involuntarily assigning children to attend a specific school, usually the one located nearest to where they lived. The critics often portrayed the system as resting on a myth of the “common school” in which all public schools are understood to be essentially the same thereby making it largely irrelevant which one any child attended.Footnote ⁷ But, of course, in the real world public schools have long differed from one another. In terms of the basic education they deliver, some are much better than others. Moreover, the values taught in public schools have long varied from district to district, school to school, and classroom to classroom. On top of that, children differ in their needs and in their parents’ desires for them so that even if any specific school might be well suited for some children, it might not be for others. The upshot, in this stylized presentation of things, is that while some parents were quite happy with what their children were given, others were not.

In a world in which children were assigned to public schools based on their address, the only ways unhappy parents could “choose” a school they preferred for their child were either to move into an attendance catchment area of a public school they liked or to opt out of the public school system by sending their child to a tuition-charging private school. In the 1960s families with about 12 percent of America's schoolchildren did the latter.Footnote ⁸ Obviously, both of those “choice” options were practically far more plausible for well-to-do families than they were for most lower-income families, especially when many of the most highly desired public schools were located in suburban neighborhoods with substantially higher than average housing costs.

For Catholic families wanting a religious education for their children, however, the tuition burden at parochial schools at that time tended to be light, perhaps most importantly because so many of the teachers in Catholic schools were nominally paid members of religious orders, and also because, at least at the elementary school level, local parishioners made charitable contributions that helped support the parish school. At that time the private school sector in the United States was overwhelmingly dominated by Catholic schools, whose roots go back to the nineteenth century, when Catholic leaders, viewing the “public” schools as Protestant schools, created an elaborate system of schools for Catholic children.Footnote ⁹

Charter Schools

In the 1970s and 1980s, some critics of the monolithic public school system called for the creation of a new type of school choice that they promoted as being within the public sector, by which they most importantly meant that these would be new, publicly funded schools that would be attended only by children whose families selected them. Ted Kolderie and Joe Nathan from Minnesota are often credited as playing the key roles in launching this idea.Footnote ⁴⁴ They called the new type of school they were promoting a “charter school.”Footnote ⁴⁵

They strongly supported the core principle of family choice. But because the “voucher” idea was being commandeered by those on the Right and touted mainly on the basis of the abstract benefits of capitalism, these new supporters of school choice sought to distance themselves from the Friedman wing.

Through their efforts, the Minnesota legislature embraced the idea, and the first charter school was launched in 1992. Since then the overwhelming majority of the states have followed suit so that by the 2015–16 school year there were almost 7,000 charter schools operating nationwide, located in forty-three states plus the District of Columbia.Footnote ⁴⁶ Together their enrollment was estimated to be about 2.9 million students (a substantial number, yet still just a bit shy of 6 percent of the nation's schoolchildren).Footnote ⁴⁷ About half of these charter school enrollees live in just five states: Arizona, California, Florida, Ohio, and Texas; and when New York, Michigan, and Wisconsin are added, these eight states together account for nearly two-thirds of the charter school students.Footnote ⁴⁸

Although they are often explicitly called “public charter schools” both in legislationFootnote ⁴⁹ and, at least some of the time, in common discourse, charter schools are clearly not the same as traditional public schools.

To be sure, charter schools have many “public” characteristics. First, they are publicly funded. Second, they may not charge tuition. Third, they must admit all who apply and if there are more applicants than spaces, admission must largely be by lottery. Fourth, because they are “chartered” by public bodies and in that way answerable to the public, these schools may be said to be publicly accountable.

On the other hand, as clearly envisioned by their inventors, most charter schools are in key respects “private” schools. They are usually owned by private, nonprofit, tax-exempt organizations and not by the local school district.Footnote ⁵⁰ While most charter schools are “free-standing,” a growing number now have contracts with independent companies who manage the schools. Today about 40 percent of students attending charter schools are enrolled in those operated by either nonprofit or for-profit management companies (with each type having about 20 percent of the market).Footnote ⁵¹

The mission of the charter school is privately set (such as a college prep school, a road to certain technical vocations, a fine arts school, and so on). The charter school curriculum is privately determined at least to the extent that fully private schools can control their curricula. The pedagogical style is up to the school to determine (does the school drill its students on skills, emphasize group inquiry, employ “master” teachers, and so on). The teachers are privately hired (in some places without necessarily having formal teaching credentials required of public school teachers).

When a charter school negotiates with a school district for its charter, it has private legal representation. Private lawyers represent the school in its legal dealings with others. People injured on charter school grounds claim damages under ordinary tort law not under government tort claims acts.

Yet, the “charter” (in effect, a contract) that the school signs with its public sponsor can, and sometimes does, mandate certain aspects of its operation, and if there is a serious breach of the terms of the charter the public sponsor can cancel its sponsorship and shut the school down (unless a different public sponsor is found).Footnote ⁵² Generally speaking, the teachers in such schools have rights most analogous to those in private schools. As to whether the teachers are unionized, this varies from state to state and charter school to charter school. Some states allow charter school teachers to belong to public school teacher unions (and retirement plans). But by 2012 it appears that only 7 percent of charter schools had unionized teachers.Footnote ⁵³ Moreover, in recent New York and Pennsylvania cases, the National Labor Relations Board ruled that charter schools are not public schools, but private corporations and subject to its jurisdiction (instead of being governed by state public employee collective bargaining laws).Footnote ⁵⁴

As for student rights, things are more complicated. Sometimes the terms of the school's charter (or perhaps state law) requires students to be given due process rights before being expelled or suspended, just like public schools. On the other hand, charter schools are permitted to, and do, demand behaviors from students, which, if not performed, can and sometimes do lead to dismissal. In this respect these charter schools are much more like private schools than traditional public schools.Footnote ⁵⁵

Initially some teachers’ unions and their leaders supported the idea of charter schools,Footnote ⁵⁶ and in the early days many envisioned that groups of existing public school teachers would be prominent creators of charter schools. Yet, early union support for charter schools was probably most importantly motivated as a strategy to politically cut off the voucher movement.Footnote ⁵⁷ Over time, teachers’ unions have become increasingly hostile to non-unionized charter schools,Footnote ⁵⁸ arguing that they are not really public schools and are harming our real public education system. Although President Obama and his long-term Secretary of Education Arne Duncan were strong supporters of charter schools,Footnote ⁵⁹ the two major national teachers’ unions denounced Duncan and the president for their support for what the unions now characterize as a corporate and marketplace driven approach to schooling.Footnote ⁶⁰

Most charter schools are chartered by the local school districts in which they are geographically located and tend to serve local children. But in some states other public bodies are allowed to sponsor charter schools. These most importantly include county boards of education, public universities, state boards of education, and specially created state-level chartering organizations.Footnote ⁶¹

State laws differ in the discretion that charter school authorizers may exercise in approving or turning down a charter applicant. In states with what charter school supporters call “strong” charter school laws, any applicant that meets the basic filing requirements for obtaining a charter must presumptively be granted one (subject only to having a coherent educational plan and an adequate business plan for the school).Footnote ⁶²

To be sure, some states have numerical caps on the number of charters that may be issued. But when the cap actually bites it appears that the typical practice is to charter qualified applicants in order of application with subsequent applicant schools put on hold until either the legislature raises the cap or existing charter schools drop out of the system creating new room under the cap.Footnote ⁶³

Chartering bodies officially are “gatekeepers” and generally view the fact that a proposed school has attracted families who promise to enroll their children by itself as insufficient to award a charter. The charterers also want the school actually to succeed in educating its pupils.

Hence, before giving out a charter they want to know about how the school will be run, what it will teach, and how. Yet, at the same time, one of the main ideas behind the charter school movement is that it will produce new ways of teaching and learning. Hence, many chartering bodies are eager to encourage experiments. Besides, as many charter schools have been formed in communities in which the public schools are seen to be badly failing many children, it is difficult to resist chartering a new school that has enthusiastic parental support.

Once chartered, these schools are generally free from all (or at least most) of the state regulations applicable to public schools; they are much more like private schools in this respect.Footnote ⁶⁴

Charters typically have a duration of a fixed number of years and then must be renewed, although in practice, apart from financial mismanagement (or worse) or manifest educational failure, most charter schools have had their charters readily renewed if their enrollment is robust.

To give a little feel for the variety of charter schools, I note that for the school year 2016–17, the Oakland Unified School District's Office of Charter Schools lists about three dozen schools chartered by the district.Footnote ⁶⁵ In addition there are about a half dozen more charter schools that are located in Oakland but chartered by the Alameda County Board of Education.Footnote ⁶⁶ In 2015–16 the schools chartered directly by the district enrolled nearly 12,000 students, as compared with 37,000 students enrolled in the public schools operated by the Oakland Unified School District, making Oakland a very robust charter school community.Footnote ⁶⁷

Some of the charter schools in Oakland are part of a national chain of charter schools; such as the KIPP Bridge Charter School.Footnote ⁶⁸ Seven of the schools are Aspire schools.Footnote ⁶⁹ Some of the schools, like Lighthouse and American Indian, hold separate charters for different grade levels (such as K–8 and 9–12). Many of the schools serve only limited grade levels, as do ASCEND K–8 and Oakland Unity 9–12. Many have different emphases, for example, Oakland School of the Arts (including dance, visual arts, and theater), Oakland Military Institute, Conservatory of Vocal/Instrumental Arts, Yu Ming School (bilingual), and Bay Area Technology School (BayTech) (science, technology, engineering, and math). Some charter schools emphasize drill and high test scores, like Oakland Charter Academy-Amethods; others emphasize portfolio assessment and securing four-year college acceptance for all graduates, like ARISE. There are pedagogical differences among the schools as well, for example, Urban Montessori.

Across the nation a number of charter schools have failed and voluntarily gone out of business (some in scandalous ways). Some have had their charters revoked (or not renewed) and could not find a new sponsor and hence had to close their doors. For example, about 200 charter schools in operation in 2012–13 (about 3 percent) did not reopen the next year.Footnote ⁷⁰ Charter school critics point to the disruption and the lack of appropriate educational progress often endured by students in charter schools that close. Charter supporters point to this churning as inevitable, and in a sense desirable, arguing that failing charter schools will and should disappear.

As in Oakland, elsewhere in the country a number of charter school operators now manage more than one school, often running a chain of schools in the region or even nationally. Like fast-food franchises or supermarket chains, this holds out the promise of continued rapid growth. And so far, the charter school system has rapidly grown and is far more robust than the publicly funded systems facilitating private school choice (that is, voucher plans and tax credit scholarship plans combined). Between 2006–7 and 2012–13 charter school enrollment nationwide roughly doubled.Footnote ⁷¹ At that rate it would take perhaps a decade from now for charter schools to capture 15 percent of the overall market.

One potential source of new charter schools could be existing private schools. But in many states, including California, a functioning private school may not simply convert to a charter school.Footnote ⁷² There are a number of possible justifications for this restriction, the most important of which is that the charter school movement was sold in the political process as a way of giving families using public schools a new choice option. And, on that assumption, the claim could further be made that the charter school plan merely shifts the way public money is being spent. In effect, dollars would follow the child from the traditional local public school to the charter school with no new cost to the public.

From the start, this description of new charter schools has been somewhat naïve on the funding side. First, there is the question of just how many dollars the pupils shifting to charter schools take with them. In practice, this is less than is spent per pupil in regular public schools, more than $3,000 per pupil less per year, according to a 2014 report.Footnote ⁷³ Hence, and especially because charter schools often have to pay rent or interest to cover the cost of their facilities (something not required of public school principals), those running charter schools have consistently claimed that they are shortchanged and that the public is inappropriately saving money via its inadequate funding of charter schools.Footnote ⁷⁴

Second, at the same time, conventional public school supporters often respond that charter schools are unfairly draining off public school money. The main issue here is what share of the costs in public schools is fixed and what share is variable. Unsurprisingly, public-school supporters claim that nearly all costs are fixed, arguing, for example, that losing two children from every grade saves schools virtually no money. Charter school supporters tend to argue the opposite, claiming that if, say, 350 children disappear from the public schools (that being the average enrollment in charter schools), this surely saves the salaries of many classroom teachers. The truth surely lies somewhere in between these claims.

Third, even in states where existing private schools cannot become charter schools, charter schools are drawing a significant share of their enrollment from families who either previously enrolled them in private schools or would have so enrolled them were the charter school option not available to them. Indeed, perhaps as many as one-third of the children attending would otherwise be enrolled in private schools were there no such thing as charter schools.Footnote ⁷⁵ These children come from families who prefer the private school to the conventional public school but prefer the charter school to either of the others. This influx of private-school students surely costs the public taxpayers money, but this is not what opponents of charter schools seem to have in mind when they talk of draining funds from public education.

The American charter school system turns out to be very much like the universal scholarship/voucher plan promoted by liberals like Jack Coons and me in the 1970s.Footnote ⁷⁶ The “choice” schools are overwhelmingly created through the initiative of private actors as we envisioned. The per-child funding of these schools is substantial (often approaching the 85 percent of public school spending we initially proposed). Access to participating schools is universal (by lottery if there are too many applicants, which was one of the options we endorsed). There is substantial public regulation of the sort we favored (important aspects of which are meant to help assure fair access by children from low-income families), and yet these privately managed schools have a great deal of autonomy. And as with our proposal, regular public schools are left in place.

Yet, there is one very large difference: no state currently allows a charter school to be a religious school (whereas under our universal voucher proposal, faith-based schools willing to accept our regulations could accept voucher-carrying students).

Private Faith-Based Schools Today

In 1960 Catholic schools overwhelmingly dominated private schools in the United States and enrolled more than five million students.Footnote ⁷⁷ Neither is true today.

In 2009–10 there were more than 20,000 faith-based schools in the United States, serving about 4.3 million children.Footnote ⁷⁸ About a third of those schools were Catholic schools and they together served just over half of all children enrolled in faith-based schools (that is, about 2.2 million). In short, Catholic school enrollment has declined by more than 50 percent in fifty years. Since 1990 alone, Catholic schools dropped in number from 8,700 to 7,400.Footnote ⁷⁹

In 2010, there were 4,300 Evangelical Protestant schools and 2,100 Lutheran (Missouri Synod) schools.Footnote ⁸⁰ In terms of enrollment, about 700,000 students were enrolled in Evangelical-Protestant schools, about 300,000 students were enrolled in Baptist schools, and about 220,000 in Jewish schools.Footnote ⁸¹ Most of the remaining students in faith-based schools attended a miscellany of Protestant schools, such as Lutheran, Episcopal, Seventh Day Adventist, Assembly of God, Presbyterian, and Methodist schools.Footnote ⁸² Just over 30,000 students were enrolled in Muslim/Islamic schools.Footnote ⁸³

Private nonreligious schools are a small share of the private school market, enrolling about a quarter of private school pupils, or 1.3 million of America's school children (that is, almost 2.5 percent of all school-age children).Footnote ⁸⁴ These schools tend to be fairly high priced, and therefore often cater primarily to financially well-off families who prefer to exercise their choice of school for their children this way rather than via their choice of residence.

In some states, these private nonreligious schools could become charter schools now if they wanted to although many would find that inconsistent with their financial model which requires higher tuition than the funding they would receive per pupil as charter schools, to say nothing of the loss of their control over admissions that would come from charter school status.

Some people predicted that the voucher programs in places like Milwaukee and Cleveland would stimulate the creation of many new private nonreligious schools in those jurisdictions—that is, schools that would essentially be funded by the vouchers. But this appears not to have happened, perhaps in large part because those wanting to start new nonreligious schools usually find it financially more attractive to become charter schools than voucher-accepting schools.

Some people claim that those attending faith-based schools are taught to be intolerant, especially of people of other faiths. This appears to be a misconception. Notwithstanding (or perhaps because of) the faith-based content of their educational programs, studies suggest that students in and graduates of faith-based schools are more tolerant (and more likely to engage in civic activities) than their public school counterparts.Footnote ⁸⁵

Nonetheless, for many liberals the expanding place in the American education system of private fundamentalist religious schools is distressing because of what they see as the broader “culture war” in the country. Families using these schools are often understood to be socially very conservative, often against abortion, homosexuality, and the like; they are seen as the same sort of people who are trying to reintroduce prayer into the public schools and to ban the teaching of evolution from public schools or to force the teaching of “intelligent design” at the same time.Footnote ⁸⁶ As a result, it is difficult for at least some liberals to favor empowering low-income families to take more control over their and their children's lives. Many appear to solve this tension by retreating to the idea of a “wall of separation” between church and state. Despite this seeming automatic aversion to public money for education going anywhere near faith-based groups, as the next section demonstrates, faith-affiliated groups are in fact already taking advantage of the charter school system.

Faith-Based Schools that Become Charter Schools by Shedding Their Religious Nature

By 2007, investigators had already identified a number of charter schools that had strong religious roots, and a more recent article by Janet Decker and Kari Carr claims that there are now hundreds of charter schools that have replaced closed Catholic schools and that in a large share of those schools, the new charter school is in many respects a continuation of the old school, in terms of staff, students, and values, except that religion has been formally removed from the school.Footnote ⁸⁷

As described in a book by Lawrence Weinberg devoted to the topic, to survive in the face of existing state law, “parents can create charter schools that accommodate their religious belief, but not such schools that endorse their religion.”Footnote ⁸⁸ As Weinberg sees it, charter schools can adopt a cultural mission and curriculum that nicely fits with the school sponsors’ religious values. The school can accommodate the faith(s) of its students, including scheduling school holidays to fit its students’ religious holidays in the same way that public schools do; having released-time programs for children to leave the grounds during the day to attend worship service, as some public schools do around the nation; and perhaps making time during the school day for students voluntarily to pray and carry out other religious acts on their own. Such a school may also teach languages tied to the interest of religious faiths (such as Hebrew for Jews and Arabic for Muslims). But it may not be a faith-based school. Moreover, such schools may not select students on the basis of their family's religious faith, although, of course, there is likely to be substantial faith-based self-selection into such schools.

Not being a religious school means there may be no required or school-led prayer, no teaching of religion as a creed for students to follow, no religious symbols all around the school, and, more generally, religion may not permeate the curriculum in ways that private religious schools often argue is a central feature of what they offer.

According to Weinberg, these faith-inspired schools should probably be (and generally are) formed and managed by independent nonprofit organizations and not by religious organizations. But their initial sponsors and the board members who run the nonprofit organization can be a preexisting group of religious people of one faith, even religious pastors.Footnote ⁸⁹ If they are scrupulous about their independence, these charter schools could probably rent space from churches as the venue for their school.Footnote ⁹⁰

For a number of families and faith leaders, this development of the religiously affiliated charter school is good enough. They are very happy to have this sort of charter school that is not formally a religious school but which, as a practical matter, largely brings together children from the same faith and structures itself so that the teaching and practice of the family's faith is readily accommodated.

Nonetheless, this is by no means ideal for families who want to choose truly religious schools. They can, of course, do that now via the fully private sector. But such families are unhappy to have to pay local property taxes and relevant state taxes to support a public service they would not use, especially if they have to pay again for that service privately. Moreover, a large number of families simply cannot afford the private option. They would probably most prefer a reform that provides them with school vouchers they can use to pay for all (or most) of the cost of their children's education in the conventional private sector. But the political prospects for the rapid expansion of school voucher programs currently look slim.

Another possible strategy for those favoring government-funded faith-based schools would be for them to create (or become) charter schools assuming that the regulatory burden was acceptable. But, of course, that is currently legally off the table in all charter school states.

This then brings us to the legal question to be explored here: is the current discrimination against would-be religious charter schools and their religious family users unconstitutional?

Facial Discrimination on the Basis of Religion

Every state charter schools program discriminates on its face against religious schools. People who want to start every imaginable sort of school are entitled to ask for a charter except those proposing religious charter schools.

Does this discrimination against religion presumptively violate the equal protection clause of the Fourteenth Amendment or the free exercise clause of the First Amendment?

There is no obviously close analogy in the case law here. But consider these hypothetical examples. Suppose a state government decided that it will provide financial assistance to poor single mothers but only those who are atheists (arguing that those who are religious should be taken care of by others of their faith). Perhaps such a policy might be implemented by denying aid to otherwise eligible single mothers who attend church. Would not that be unconstitutional?

Or suppose a state decided that its Medicaid benefits (payment for health care) are available at any hospital except for medical care provided at religiously affiliated hospitals (for example, Saint Francis or Mount Sinai). Perhaps such a policy might be implemented by refusing to pay for care at hospitals where clergy of one faith are on the payroll and available to patients in the hospital, one faith's religious services are held at a chapel in the hospital, the hospital board is dominated by clergy, or the hospital has adopted policies concerning what services it will provide that are faith-based (for example, no abortions). Of course, some hospitals with faith-based histories have today become wholly secular institutions, apart from their names, and a policy of excluding religious hospitals from participation in Medicaid might be designed to prompt the remaining religious hospitals to become secular. But would not this exclusion from the program of religious hospitals and Medicaid users who seek care in religious hospitals be unconstitutional?

Or suppose a state government announced that any bakery can compete for a contract to provide bread for public school lunchrooms except bakeries run by religious orders such as the Sisters of the Poor or the Christian Brothers. While bread is bread, some might find it symbolically tainted if supplied by religious groups. Yet would not this open discrimination against religiously based bakers be unconstitutional?

Or suppose the federal government decided that food stamps it provides to low income people are not valid for kosher or halal food (arguing, say, that people who buy those typically more expensive products should not be depending on food stamps). Could the government constitutionally exclude from the program the sort of food whose consumption is required by the faith of poor people receiving food stamps? I doubt it.

While these hypothetical examples all suggest nearly unimaginable scenarios today in the United States, they also seem, at least on their face, to be highly suspect as a matter of constitutional law. In each instance, the individual or organizational participant involved is being singled out for worse treatment on the basis of religion. The hospital, grocer, and baker are offering secular products (health care, food, and bread) but may not participate in the program because of a religious attachment to what they provide. So, too, the individual participants are unable to satisfy a secular need they have (to cash because they are poor, to medical care, to the food they want to eat) because either they or those with whom they wish to deal are engaged in a faith-based activity.

To me, these hypothetical scenarios would appear to violate both the Free Exercise clause of the First Amendment and the Equal Protection clause of the Fourteenth Amendment. In Fourteenth Amendment lingo, they involve a “suspect classification” that would have to be justified on the basis of a “compelling state interest.”Footnote ⁹³ And as the First Amendment makes clear, it is very difficult to see how the state can have a compelling state interest in penalizing the free exercise of religion.

If this way of looking at the issue is correct, then it would provisionally seem to follow as well that it is unconstitutional to single out religious schools and deny them the right to be charter schools. After all, they are offering to provide the secular service of educating children, but they are precluded from participating in the government's charter schools program because they are simultaneously engaging in religious activities. So, too, the families who wish to have their children educated in a school that reinforces the parents’ faith are denied that choice. Can this open discrimination against families wanting to make a faith-based choice and providers wanting to offer a faith-based public service be justified?

If the state were only to operate and fund traditional public schools, the same exclusion of funding for those seeking faith-based schooling for their children would follow. But in that scenario, one might argue, the state is speaking through its regular public schools, seeking to educate children in a publicly determined way, promoting publicly reached values, and so on. This is how public education has been traditionally understood. And when the government uses the purse to fund the way it speaks, it may well have no obligation to fund other speakers.Footnote ⁹⁴ In this respect I agree with the conclusion of Laycock and others that just because we have a compulsory education system that offers families government-funded public schools, this does not constitutionally require government also to provide scholarships or vouchers for families that prefer religious schools (although not everyone agrees).Footnote ⁹⁵

But once the institution of charter schools has been established, things look and feel very different. Now, any private party who can make a showing that it will pursue the basic secular goals of education may seek a charter (and with that public funding) regardless of the rest of the trappings of the school. To be sure, the school must teach reading, writing, and arithmetic to elementary school age children, and provide college prep education and/or vocational training for secondary school children. But the school can be funded and willing parents may choose it for their children regardless of other values the school seeks to impart to its pupils, the teaching style it adopts, the rest of the curriculum it offers, the nature of its teaching force, and so on. Except the trappings of the school may not be such that it is a faith-based education that is being offered along with the secular education of those enrolled.

Of course, as discussed above, a charter school is not completely free from public control and must in some sense have its overall program blessed by the public body that gives it the charter. Nevertheless, at the level of principle this sort of oversight does not seem different from the regulation of clearly private schools that we see in many states and whose regulation is clearly constitutionally valid even in a legal regime such as ours that guarantees parents the right to choose private schools in lieu of public schools for their children.Footnote ⁹⁶ After all, aspects of the curriculum, the school year length, aspects of teacher qualifications, standardized test-taking requirements, and the like are matters that states in some cases do, and certainly could, validly require of the private school sector.

To be sure, not everything that calls itself a school necessarily is the sort of institution that should count as a school for purposes of the charter school law. So, for example, if twelve-year-olds at a “charter school” are going to do nothing but read and recite liturgy all day, the “school” probably could not get away with claiming that through this “reading and speaking” training it would be providing minimally adequate secular education, to say nothing of its failure to offer the educational curricular variety generally appropriate for children of that age, like math and science. Such a pretend “school” should not be granted a charter. But parents sending their children to a conventionally private “school” (or “home school”) of this very same sort could (and should) also be prosecuted for violating their obligations under the compulsory attendance laws.Footnote ⁹⁷

In sum, if the exclusion of faith-based schools from the charter school system seems presumptively impermissible under the principle that government may not discriminate on the basis of religion, are there other principles that can trump that presumption?

Do States Have a Compelling Interest in Not Awarding a Charter to a Religious School Because to Do So Would Violate the Establishment Clause?

Suppose a state voluntarily agreed that charters could be granted to religious schools that meet all of the normal requirements for charter schools. Would the funding of such schools violate the Establishment Clause of the First Amendment? If so, then it would seemingly follow that the Free Exercise or Equal Protection claim raised in the prior section would fail. That is, under this line of analysis, states that refused to fund faith-based charter schools could successfully assert a compelling state interest in support of their decision: not to violate the First Amendment.

But I do not believe that the U.S. Supreme Court should or would reach such a result. On this question, I agree with Saiger.Footnote ⁹⁸

The Pierce case makes clear that in the U.S. government may not require all parents to send their children to conventional public schools.Footnote ⁹⁹ Attendance at private schools (including religious private schools) must also be recognized. It is also legally permissible for state government, if it chooses to do so, to provide financial support to these conventional private schools and the users of these schools at least in certain ways.Footnote ¹⁰⁰ But government may not provide financial aid in ways that violate the Establishment Clause of the First Amendment.

Would funding religious schools through the state charter school program violate the Establishment Clause? Many would say that this clearly is the case and for that reason it cannot be unconstitutional to exclude faith-based schools from the charter school program. Indeed, they would say this is why states wisely chose from the outset to exclude religious schools from the program. But is this correct?

For some the answer is simple, and the legal analysis would go like this: Charter schools are public schools. Public schools may not be religious schools. Therefore, funding public religious schools is forbidden. But this is too simple because it simply assumes that charter schools are public schools for Establishment Clause purposes. And I do not believe that is correct.

In the 1982 case Rendell-Baker v. Kohn,Footnote ¹⁰¹ the U.S. Supreme Court made clear that even though a school is 100 percent funded by the government, it is not necessarily a public actor for constitutional law purposes. The school in that case was a private school that had a contract with the Boston public schools to provide education to certain difficult students. The school district paid the private school for this service. Some teachers at the school brought an action against the school alleging constitutional violations of their rights. The U.S. Supreme Court held that this school did not engage in “state action” and hence the claims were dismissed (as the constitutional rights alleged did not apply against a private actor.) Although the contract with the school in Rendell-Baker looked very much like the charter that charter schools receive these days, this decision should not be taken to fully resolve the issue before us, since that case did not involve the Establishment Clause.

Professor Robert O'Neil, a leading First Amendment scholar, indirectly explored this question in 1999. In a chapter centrally about whether acts by voucher-funded schools constitute “state action” and thereby trigger various constitutional rights, he notes in passing that charter schools (in contrast, at the other extreme, to home-schooling parents and in contrast with Rendell-Baker) do engage in state action.Footnote ¹⁰² But for purposes of his analysis O'Neill made certain explicit assumptions about public control over charter schools, and he acknowledged that a charter school system of a more decentralized and autonomous sort might be different. In any event, he did not address the religious discrimination issue before us here.

At about that same time, a student note that focused on Texas’ charter school system largely came to the opposite conclusion, finding that courts would probably not consider charter school operators as engaging in “state action” especially when the issues before the court concerned matters such as teacher and student rights.Footnote ¹⁰³ Like O'Neil, the student note did not examine the issue of the nature of charter schools in the context of the Establishment Clause.

In May 2014 the Office of Civil Rights of the U.S. Department of Education distributed a “Dear Colleague” letter that simply announced (without any legal analysis) that charter schools are public schools and therefore subject to federal civil rights statutes just as are regular public schools.Footnote ¹⁰⁴ The letter says nothing about whether charter schools engage in state action so that teachers and students have constitutional rights against charter schools, although that would seemingly follow from the letter's assumption. In any event, the letter understandably pays no attention to the Establishment Clause.

I agree that under the U.S. Constitution a school district could not choose to create and operate a Catholic school (even if it were willing also to create and operate schools teaching or following other faiths if there were family demand for them).

But that is not necessarily the right way to look at charter schools. States and school districts do not advertise, “We are looking to award a charter to a school that will emphasize training in science, or a school that will be bilingual, or a school that will have strict discipline, or a school that will evaluate its pupils on the basis of a portfolio assessment rather than standardized tests.” That may be how districts go about creating alternative or magnet schools. Rather, the chartering bodies wait for those seeking charters to come forward and propose a school. And these proposing institutions are private organizations, not public institutions. Viewed in this way, the funding of charter schools looks and feels very much like the funding of voucher schools in the sense that in both instances the government is putting up money so as to facilitate the choice by families of privately run schools they prefer for their children.

Put differently, although awarding a school a “charter” and calling it a “public charter school” may suffice to make it a public school for state law purposes where state constitutions restrict financial support to “public” schools and prohibit aid to non-public schools, this does not resolve the question of how to treat the school for Establishment Clause purposes. For that, the fact that the initiation of the school comes from private parties and the fact that families are never assigned to the school but only attend by their own private choice arguably makes a great deal of difference. After all, the core point of the Establishment Clause is to prevent government from “establishing” a religious institution.

We know from Zelman, the Cleveland school-voucher case, that merely providing funding that benefits a religious institution cannot by itself be enough to violate that principle. There is every reason to believe that religious organizations benefit from a voucher program that provides publicly funded scholarships that families sign over to religious schools to pay for their children's tuition. The same would be true if the Sisters of the Poor Bakery were allowed to bid for and win a government contract to provide bread to the schools, or when Catholic hospitals are allowed to participate in Medicaid. It is also clear that the Cleveland voucher plan enabled families to pursue their religious faith just as current rules allow food stamp recipients to spend them on kosher or halal food. These benefits to the exercise of religion are collateral side effects to the use of public funding to satisfy other secular objectives such as to keep poor people healthy and fed, to provide nourishing food in public cafeterias at low cost, and, of course, to help children become educated.

Still, this does not necessarily mean that the formal arrangements by which the money goes to the religious organization are necessarily irrelevant for constitutional law purposes. Justice O'Connor's concurring view in Zelman,Footnote ¹⁰⁵ which provided the crucial fifth vote to uphold the plan, was that it made a great deal of difference that the voucher went to the parents. For her, the payment of a lump sum directly to a religious charter school based on the number of students it enrolls would probably be unconstitutional on the ground that the connection between government and religion would be thought too tight by the average informed citizen a matter that she felt was central to deciding the First Amendment question.

But, of course, Justice O'Connor is no longer on the Court. And, in my view, the present Court membership is likely to see things differently (O'Connor gave too much weight to form over substance). Two justices from the five-member majority in Zelman, Justices Thomas and Kennedy, are still on the Court. I believe that at least Justice Alito, Justice Gorsuch, and Chief Justice Roberts would join with them in looking at the First Amendment differently from the way Justice O'Connor did. This group of five Justices is likely to conclude that there is no economic difference between the direct funding of a charter school, which only gets the money if parents decide to send their children there, and the indirect funding of a voucher school, which only gets the family's voucher signed over to it if parents decide to send their children there. Hence, I believe these justices would conclude that the “primary effect” of both the programs is the same, that is, to help educate the nation's young. Moreover, the “primary purpose” of both plans is also the same, that is, to expand family choice in education by allowing for the government funding of privately created and managed schools that parents select for their children (“primary effects” and “primary purpose” being two tests advanced in the Lemon case that the Court has deployed on many occasions including Zelman in its application of the Establishment Clause).Footnote ¹⁰⁶

Or put differently, I believe this group of five would adopt the broad approach of Chief Justice Rehnquist speaking for the majority in Zelman: (1) would parents be making a “genuine and independent private choice” by selecting religious charter schools for their children; and (2) would a charter school program that includes religious charter schools be “neutral”?Footnote ¹⁰⁷ Surely they would answer “yes” to both of those queries.

Furthermore, in contrast to the school voucher plans that have been created to date, there is every reason to believe that even if faith-based schools could become charter schools, most of the schools participating in the plan will be nonreligious schools. Certainly if one faith-based school were to sue to become a charter school, then at that point it would be seeking to become a single parochial school in a sea of secular schools. Hence, the symbolic connection of government with what were overwhelmingly religious private schools in the Cleveland voucher plan would be absent. Moreover, even over the longer run, one would expect that nonreligious schools would remain not only a substantial core but probably the majority of the participants in the charter school scheme. Hence a feature of both the Cleveland plan and all of the prior aid-to-private school programs that came before it that bothered at least some of the justices would be absent.Footnote ¹⁰⁸

There might arguably be more “entanglement” between the public and charter schools than between the public and voucher schools (“entanglement” being another test put forward in Lemon that the Court has frequently pointed to in the past in Establishment Clause cases, although it appears to have put that aside more recently).Footnote ¹⁰⁹ Entanglement has always been a complicated and slippery concept. The symbolic entanglement between the state and religious charter schools would primarily be a matter of how one “sees” the two systems. Voucher plans clearly enable families to choose private schools. I have been arguing that, on close examination, charter school plans do the same thing.

To argue that there is a difference because charter schools are “labeled” for some purposes as public schools seems the wrong way to look at things. For just as charter schools are seen today by some observers as obviously public schools, if you listen to core supporters of conventional public schools you will hear the opposite. They regularly loudly complain that charter schools drain funds and desirable families from the public schools and that charter schools are run by private entrepreneurs and hence do not have the central characteristics that they ascribe to being a truly public school.

In Widmar (1981),Footnote ¹¹⁰ Lamb's Chapel (1993),Footnote ¹¹¹ and Good News Club (2001)Footnote ¹¹² public authorities defended their decision to exclude religious groups from using public facilities on equal terms with other groups on the ground that to do so would violate the Establishment Clause, in part because this would entangle the state and religion. The Supreme Court rejected this argument in all three cases, finding that including such groups among those who are allowed to use the facilities would not be unconstitutional.

In the Rosenberger case (1995),Footnote ¹¹³ the University of Virginia had denied student religious groups funding which was otherwise available to other student groups. The university again argued that to fund religious groups would violate the Establishment Clause. The Supreme Court rejected this argument once more. Viewed this way, Rosenberger is a clear precursor to Zelman. The Court's view was that the relevant student activities fund was used to pay for communications initiated by various student groups. This was not government speaking, but rather the government promoting speech within its student body. In such a setting, it would not amount to an establishment of religion to include student religious groups in the program. If the charter school program is seen in the same way, then Rosenberger provides a strong analogy for the issue under discussion here.

To distinguish Rosenberger it would seem that the charter school system would have to be viewed as a mechanism by which the state seeks to offer exclusively nonsectarian schooling in innovative settings. But, Establishment Clause concerns (or hostility to religion) aside, it seems inconsistent with the state's central objective of promoting family choice in education to then automatically reject educational programs that some parents want for their children because the program is proposed to be offered through a religious school. Moreover, to the extent that charter schools are viewed as vehicles for improving the educational attainments of America's children, it would seem bizarre to exclude religious schools when the educational success of faith-based schools has been quite strong as compared with public schools.Footnote ¹¹⁴

To be sure, the on-the-ground politics behind the charter school movement may have required that charter schools be nonreligious schools for advocates of the plan initially to achieve the needed majority vote. But, it seems to me that if a similar argument had been made in Rosenberger, that the student activities fee could only have been adopted if student religious groups could not receive any of the proceeds, that argument would surely not have saved the restrictive nature of the University of Virginia program.

In Maine, Vermont, and New Hampshire some small school districts traditionally have not operated their own schools.Footnote ¹¹⁵ Instead their practice has been to pay for their students to attend elsewhere, sometimes at private schools. This program, which goes back a very long time, is functionally equivalent to a voucher plan in those communities where families are given a number of private choices as to where their children may attend at public expense.

In 1981 the Maine legislature voted to exclude private religious schools from the program on the ground that including them would violate the Establishment Clause. Some years later the town of Raymond, which did not operate a high school and paid for local students’ education at a variety of private schools but not faith-based schools, was sued by a group of families seeking to have their children's education at a Catholic high school paid for by the town. The attack on the exclusion of religious schools from the family options was based (for purposes relevant here) on the claim that this violated the Equal Protection Clause. This exclusion was defended on the ground that to include those schools would violate the Establishment Clause. And in a 1999 decision the Maine Supreme Court agreed with the latter claim.Footnote ¹¹⁶ This decision came before Zelman, however, which I believe Zelman overrides.Footnote ¹¹⁷

Justices Breyer and Ginsburg dissented in the Cleveland voucher case, and so there is reason to believe that they would find it unconstitutional to allow religious schools to be charter schools.Footnote ¹¹⁸ Yet, even as to them, recall that whereas the vouchers in Cleveland were overwhelmingly used in religious schools, the issue addressed here is whether religious schools could seek to become charter schools and thereby obtain a foothold in a program dominated by nonreligious schools.

As for Justices Kagan and Sotomayor, although they are typically lumped in as part of the “liberal” wing of the Court, we do not have a definitive view of how they would view the matter. Justice Kagan dissented in the Arizona tuition tax credit case in an opinion that technically only argued that the plaintiffs there should have standing to challenge the program; but the text suggested that she might well have concluded on the merits that the program was unconstitutional.Footnote ¹¹⁹

While Justice Sotomayor joined the Kagan dissent in that case, she did not write on the matter. Her decisions on religious cases as a lower court judge are not terribly revealing.Footnote ¹²⁰ She has not issued an opinion on a school funding case as a Supreme Court justice although she has been accused by some for decisions in other areas, as inappropriately pro-Catholic.Footnote ¹²¹ I think little can be made of this record, although it is plausibly relevant that she was raised a Catholic and attended Catholic schools and at some level must feel that this experience helped shaped who she is and her subsequent career.Footnote ¹²²

The upshot is that it could well come down to how our newest Supreme Court justice would vote on the matter. There is not a lot of strong evidence in Justice Gorsuch's record as a lower court judge on which to base a confident prediction. But given his generally conservative background and his own Catholic education, I have grouped him with Justices Alito and Roberts, and so I feel reasonably comfortable in concluding that the U.S. Supreme Court would probably not find it to be a violation of the Establishment Clause for a state to choose to award a charter to a religious school. But, of course, none have done that so far.

Even If States May Award Charters to Religious Schools, Must They?

However, on the question of whether, even if states may award charters to religious schools, they must do so, I offer a position different from that of Saiger and Laycock. In the Witters case,Footnote ¹²³ decided by the U.S. Supreme Court in 1986, a blind college student in the state of Washington applied to the Washington Commission for the Blind for financial aid. He was attending a Christian college, studying to become a pastor, missionary, or youth director (of a religious organization). His application was denied and the Washington Supreme Court upheld the decision on the ground that to award him funding for this sort of education would violate the Establishment Clause. The U.S. Supreme Court unanimously reversed. Although the facts there involved higher education, this decision clearly helped pave the way for the Zelman decision. Based on Witters, so far as the federal constitution is concerned, Washington could have granted financial aid to that student.

But just because Washington could elect to support such a student without violating the federal constitution, must it? This issue returned to the U.S. Supreme Court in Locke v. Davey.Footnote ¹²⁴ Like many other states (the count is usually put at thirty-seven),Footnote ¹²⁵ Washington has a provision in its constitution that bars the funding of religious schools. Many of these provisions were adopted in the later part of the nineteenth century as part of an anti-Catholic school movement that tried (but failed) to achieve a similar amendment to the federal constitution.Footnote ¹²⁶ These so-called Blaine Amendments (after the Congressman who headed the national effort) are phrased differently from state to state and their words have been interpreted differently by state supreme courts.Footnote ¹²⁷ Sometimes the provision prohibiting aid to religious schools is joined with a provision prohibiting aid to any school not under the control of the state.Footnote ¹²⁸ As mentioned earlier in this article, the existence of Blaine Amendments is one reason why charter school advocates initially were keen to term charter schools public schools (and why they argued that the “charter” feature satisfied the “control” requirement of some state constitutions).

Given its interpretation of the Washington constitution, the Washington Supreme Court determinedFootnote ¹²⁹ that it would be unconstitutional under its law for the state's generally available Promise Scholarship program to provide financial aid to support Joshua Davey because he was studying devotional theology at a religious college, and so the administrators of the program denied him the financial aid he sought. Since the U.S. Supreme Court in the Witters case had made clear that Washington could aid Davey without violating the Establishment Clause, Davey believed he had a strong case that the state was violating his Free Exercise rights by excluding him from the program (that applying the Washington Blaine Amendment in this way was unconstitutional under the federal constitution). But he lost.

Writing for the U.S. Supreme Court, Chief Justice Rehnquist concluded that there is some “play in the joints”Footnote ¹³⁰ between the Establishment Clause and the Free Exercise Clause. Rehnquist cited the Walz caseFootnote ¹³¹ which long earlier upheld as not violating the Establishment Clause a “neutral” law that allowed churches along with other nonprofit organizations to be exempt from property taxes. The idea the Chief Justice sought to convey in his opinion was that, while the opponents of the churches’ tax exemption did not have a valid Establishment Clause claim against the exemption, the churches in Walz also had no Free Exercise claim that constitutionally entitled them to a property tax exemption if it had been extended only to other nonprofit organizations. Put differently, according to the Chief Justice, not every matter involving religion in some way has to be resolved by the Court by applying one or another of the clauses of the First Amendment.

But notice that the Walz-based argument advanced by the Chief Justice in Locke was not based on the holding in Walz. There, the Court was not actually called upon to decide whether excluding religious groups from among all other nonprofit groups from the tax exemption would or would not violate the Free Exercise Clause.Footnote ¹³²

Putting aside this hypothetical analogy, what Rehnquist specifically concluded was that while Washington could have awarded aid to Davey if it wished, it was not constitutionally obligated to do so. In its details, Locke may look to some like a very narrow and special case. The applicant wanted to obtain a “devotional theology degree” so as to be trained to be a minister. So, it is perhaps understandable that a program of purely religious instruction for a religious career is something that the justices felt states should not be required to support even if they could. But is Locke really only narrowly restricted to this sort of case, or does Locke suggest that the Court believes there should be this “play in the joints” as a general matter, especially when it comes to state funding decisions?

In his very thoughtful 2004 article Laycock argues that the Court is likely to apply Locke broadly in cases involving public funding,Footnote ¹³³ and Saiger agrees with this.Footnote ¹³⁴ I am not so sure, however.

Some might initially think that Locke is simply incompatible with Rosenberger. But Rosenberger was decided not as a violation of Equal Protection or the Free Exercise clause but of the Free Speech Clause on the grounds that refusing funding for the promotion and publication of papers by a religious student group amounted to “viewpoint discrimination” in violation of this part of the First Amendment. And while those who seek to gain approval for a religious charter school might argue that they too are attempting to exercise their free speech rights, it is not at all clear that they can make out a “viewpoint discrimination” claim. Funding schools and funding pamphlets may not be understood to be the same thing, a point that seems to underlie Locke, although Laycock is not convinced of the distinction.Footnote ¹³⁵

In any event, by now there are several new members of the Court. The vote in Locke was 7–2 with Justices Scalia and Thomas dissenting. Even if Chief Justice Roberts, Justice Alito, and Justice Gorsuch were to join with Justice Thomas, Locke might well remain good law because Justice Kennedy voted with the majority in that case. Yet, the question is how broadly or narrowly Kennedy and others would interpret Locke. That is not self-evident.

Lower courts have grappled with Locke. Then judge Michael McConnell, now a Stanford Law professor, writing in 2008 for the Tenth Circuit in the Colorado Christian University caseFootnote ¹³⁶ distinguished (or avoided) Locke by finding that Colorado's college scholarship program (not initially self-evidently different from Washington's) actually discriminated among religious groups and therefore was unconstitutional regardless of what Locke might otherwise imply.Footnote ¹³⁷

But in 2004 in Eulitt v. Maine Department of Education Footnote ¹³⁸ fast on the heels of Locke, the First Circuit read Locke far more sweepingly and upheld the Maine law, noted earlier, that allows nonoperating school districts to pay for the education of their students in private schools but not in religious private schools. Regardless of whether it might be permissible to make such payments, the panel concluded that Locke clearly gave Maine the right to decide not to fund students attending religious schools.

Following language in Locke, the opinion says that there is no religious animus behind the Maine program. Rather, the reasons for limiting the schools where students may attend with public support “include Maine's interests in concentrating limited state funds on its goal of providing secular education, avoiding entanglement, and allaying concerns about accountability that undoubtedly would accompany state oversight of parochial schools’ curricula and policies “(especially those pertaining to admission, religious tolerance, and participation in religious activities).”Footnote ¹³⁹ There is a certain irony here because, at least as a nationwide matter, Blaine amendment limits on funding children attending private schools are undoubtedly rooted in animus towards Catholics and Catholic schools. But, as Laycock points out, the way the U.S. Supreme Court dealt with the Blaine amendment history in Locke makes it highly doubtful that actions taken in the nineteenth century will come back to strike down state political choices made in the late twentieth or early twenty-first centuries.Footnote ¹⁴⁰

Moreover, the First Circuit panel correctly pointed out that when the U.S. Supreme Court in Locke talked about animus it asked whether “the state action in question imposes any civil or criminal sanction on religious practice, denies participation in the political affairs of the community, or requires individuals to choose between religious beliefs and government benefits.”Footnote ¹⁴¹ Of course, neither the Maine plan nor the Washington scholarship plan in Locke criminalized attending private religious schools. This serves to distinguish the Babalu case where a specific religious rite was criminally outlawed.Footnote ¹⁴² Nor, of course, do the Washington or Maine regimes prevent those who attend religious schools from, say, voting.

Whether these plans require individuals to choose between religious beliefs and receiving benefits is a harder question, however. To be sure, the students are free to accept the government benefit by attending nonreligious schools, and that seemed enough for the First Circuit, which saw itself as just following the Locke opinion in this respect. Is this convincing in the setting before us involving religious charter schools?

In some faiths there may well be a duty to send one's children to religious schools, and under current charter school rules those families surely are directly forced to choose between violating their faith and giving up the benefit of subsidized education for their children. Even those who are not compelled by their faith but wish, in pursuance of their faith, to give their children a religious education are in a genuine sense financially penalized. These parents seem to me more directly burdened than those in the college scholarship plans who are seeking training in religion. Being trained so that you can later be hired in a religious role may be the educational goal of those college students, but it is not quite the same as the practice of their faith. By contrast, providing one's children with religious education is. Nonetheless, the Eulitt panel clearly read Locke to permit states to decide not to expand their programs to include religious schools. And if this is correct, then it would also seem to follow that states could as well choose to exclude religious schools from their charter school plan, even if it would be constitutional to include them. And this is exactly how Laycock reads Locke: when it comes to state funding, very little is required by the Free Exercise Clause (or the Equal Protection Clause) even though he agrees that “[r]efusing state funding for math and reading, because the school also teaches religion, is clearly a penalty on teaching religion and on attending a school that does so.”Footnote ¹⁴³

So, how should we think about Locke today? Let's turn back to the hypothetical examples of religious-based restrictions I gave at the beginning of this article. It still seems to me that in the great unlikelihood they would be enacted, at least some of them (and probably all of them) would be stuck down by the current U.S. Supreme Court, notwithstanding Locke. Giving welfare only to atheists? Surely that makes poor single mothers choose between money and going to church and financially penalizes those who make the latter choice. That this is a state spending choice designed only to help certain mothers seems to me unlikely to save the provision. As I suggested earlier it is possible that legislators might honestly think that religious groups will take care of their own faith members, which means they are perhaps not acting with the sort of animus towards religion that the Court had in mind in Locke. But the plaintiff will be someone who is poor despite her faith, and I cannot see such a blatant discrimination being upheld.

What about preventing food stamp recipients from using those food stamps to buy the food their religious beliefs require them to eat? I cannot see how or why there would be “play in the joints” for this restriction, either. Congress can decide that food stamps may not be used to buy sugar-sweetened beverages. But to attach a condition (on improvidence grounds) that prevents poor Muslims and Orthodox Jews whose faiths require them to eat only halal and kosher food from buying that food seems indefensible even under Locke (especially because food stamp users are otherwise now entitled to use their benefits for other high-cost foods if they wish).

Both the welfare and food stamps examples seem to me to involve explicit penalties arising from the exercise of religious beliefs. And it seems to me that, notwithstanding either Locke or the First Circuit in Eulitt, this is true as well if a family signed its child up for a religious school (in furtherance of or perhaps even as compelled by its faith) but the school then was denied a charter for the sole reason that it was a religious school. Now the family would have to pay tuition for its child.

It would seem therefore to come down to whether, in retrospect, Locke will be understood as being about a historic avoidance of public funding of ministry training. I think it should be.

Notice again that the argument for allowing religious schools to become charter schools is not the same as arguing that private school users have a constitutional right to vouchers. As I discussed earlier, that would be a much larger reach. Remember that charter schools are subject to restrictions, and religious schools would also have to comply with these were they to become charter schools. Indeed, some religious schools, just like some private nonreligious schools, would not want to become charter schools even if they could. Moreover, these private religious schools might oppose allowing any religious schools to become charter schools because that would create competition that they might well not appreciate.

But for those religious schools willing to accept the charter school program on the same terms as other charter schools with their own distinctive curricula, it is difficult to come up with a justification as to why they should be automatically excluded. Saiger observes that states have political and financial reasons not to include religious schools as charter schools.Footnote ¹⁴⁴ This perhaps helps us understand why the current laws are drawn to exclude faith-based schools.Footnote ¹⁴⁵

But, and Saiger agrees, political and economic reasons cannot automatically constitutionally justify the discrimination. After all, political or financial reasons for, say, keeping churchgoers off welfare, or religious hospitals out of Medicaid, or religious bakeries out of the government contracting business would, to me, seem insufficient arguments to justify such exclusions. If charter schools are really about giving families the ability to choose among privately created schools that are willing to meet certain basic educational criteria, then on what constitutionally acceptable basis are schools that educate children in a context permeated by religion to be excluded?

Many ordinary citizens will respond by saying that they do not want their tax dollars going to schools that conduct prayers, teach children that sex outside of a heterosexual marriage is a sin, teach intelligent design as an alternative to evolution, and have children learn that the Bible the school uses is the word of God. Many of these people who point to an objectionable use of their tax dollars do not really like wholly private schools teaching these things either, but they have come to accept Pierce. To have public money and public sponsorship associated with such schools, however, would be very distasteful to them even if the children attending these schools learn the basic secular education skills that all charter schools undertake to teach. Ultimately, these people are troubled by the whole notion of “family choice,” fearing that this could turn America into a religious battleground of the sort they have seen in Northern Ireland, the former Yugoslavia, and Lebanon and elsewhere in the Middle East.Footnote ¹⁴⁶

Others, of course, see family choice in education quite differently and would point to countries throughout Europe and to Canada, Australia, and the like, where public funding of religious schools has long been in place, or to the former Soviet-dominated nations that, once having obtained their freedom, promptly put in place schemes to fund family choice of religious schools.Footnote ¹⁴⁷ These supporters of family choice argue that empowering parents to choose what they think is best for their children is not only good for families but also a way of making more families appreciate the tolerance America shows for differing points of view. For many parents, teaching values to their children is their very most important exercise of their Free Speech rights. Family choice proponents believe that when people realize that they are supported in expressing their rights, they will support that in others as well.

Another point made by family choice advocates is that if faith-based schools could become charter schools, some of the most contentious religion-based battles in our traditional public schools might fade away. Those who are so keen on prayer, bible study and the like and so opposed to certain matters they now find present in our public schools (like sex-education classes) could move their children to charter schools that are more in line with their values.

This brings us to a final distinction to be made between the problem before us and the one presented in Locke. In that case, the plaintiff chose a job-related course of higher education to pursue. When it comes to elementary and secondary education, however, parents are compelled to force their children to participate (on pain of criminal prosecution and/or child neglect proceedings). For many low income parents who cannot afford private religious schools this means they must forego the exercise of their faith and send their children to a traditional public school whose value teachings the parents may well find in conflict with their faith.

So it might come down to this: If charter schools are really about empowering families to choose from a wide range of privately created options as a way of finding the sort of school that parents believe is best for their child, then to allow states to exclude the preferences of a significant number of families because of what appears to many to be a hostility towards religion seems unacceptable. But if instead charter schools are seen as a way of delivering variations on what conventional public schools try to do and all too often fail to do, then in light of many people's acceptance of the idea of a high wall of separation between church and state, perhaps a choice to exclude religious schools from the game might be thought acceptable. Put differently, are charter schools about liberty or about bureaucracy?

For Justice Kennedy, who could well be the key vote on this issue, the “freedom” or “liberty” to direct your children's education in ways that are in harmony with your family's religious faith is likely to be seen as part of the individual freedom in intimate matters that Justice Kennedy has been supporting in a range of other important decisions.Footnote ¹⁴⁸