The Battle Over Church and State Could Take Down the Charter School Movement

It is a heady moment for America’s conservatives, who at long last seem to be on the cusp of getting the Christian public schools they have fantasized about, succeeding where even President Ronald Reagan failed. With a new speaker of the House who has pooh-poohed the need to keep church and state separate and a majority on the U.S. Supreme Court that has tossed out the old rulebook, it’s not hard to imagine that conservatives are dreaming big. But their vaulting ambitions may yet be their downfall: By tearing down the wall of separation between churches and public schools, the biggest victim of conservatives’ designs might be conservative school policies decades in the making.

The possibility of self-defeat comes from Oklahoma, where the Statewide Virtual Charter School Board recently approved a new charter school run by the Catholic Church. It would hardly be the first charter school to be run by a religious organization, but it would be the first such school to openly teach church doctrine while funded by taxpayer dollars.

The move is clearly illegal and unconstitutional in Oklahoma, and the state attorney general has sued to prevent it, supported by national groups such as the American Civil Liberty Union. But conservatives such as Nicole Stelle Garnett of the University of Notre Dame Law School hope to force the issue, taking advantage of today’s conservative Supreme Court majority to throw out state laws and change state constitutions and, in so doing, create new possibilities for religious public schools. The case is OKPLAC, Inc. v. Statewide Virtual Charter School Board. 

But this strident approach could turn into an epic overreach for conservative activists. The favorable judicial climate has encouraged them to shout, so much so that they’ve forgotten how well mumbling has served their interests.

Since the 1990s, charter schools have flourished as profoundly ambiguous institutions. Yes, they are public schools—well, sort of!—funded by tax dollars and required to meet the needs of the public. But they also sometimes act like they were private schools, able to circumvent some of the bureaucracy that governs public schools.

As education-law scholars have noted, charters are accustomed to “having it both ways,” largely benefiting from the impossibility of drawing a bright line between public and private schools—lines that have proven notoriously difficult to brighten. Some states legally define charter schools as public schools. Others don’t. Some courts have ruled that charter schools must abide by the same rules as public schools. Some haven’t.

The U.S. Supreme Court has, so far, avoided clearing up the issue. In one case from North Carolina, for instance, a family protested against a charter school’s dress code. Girls had to wear skirts, the school insisted, to remind boys that each girl was a “fragile vessel” in need of chivalrous protection. Lower courts agreed with the parents: If a charter school was in fact a public school—if it served as a “state actor”—then it could not discriminate against girls in this way. But when the Supreme Court had its chance to weigh in and finally tip the scales of this confusing debate one way or the other, it opted not to hear the case.

OKPLAC, Inc. v. Statewide Virtual Charter School Board might force the Supreme Court to finally bring clarity to this dispute. Naturally, some conservative activists are hoping the justices will see things their way, clear up the muddle, and declare once and for all that a charter school can preach Christian doctrine. If they succeed, however, it will come at the expense of the charter school movement itself and of work long fostered and nurtured by generations of conservative leaders.

Since their modern advent in the 1990s, charter schools—and campaigns for school “choice” more generally—have succeeded because their advocates have managed to have it both ways in partisan politics. Conservatives thrilled to the possibilities of publicly funded schools run like private companies or private churches. They delighted in the popularity and expansion of free-market reforms. The Heritage Foundation, for instance, crowed that charter school successes proved that the dead hand of government really was a burden, as conservatives had always accused.

But progressives could celebrate charter schools too. They could join leaders pushing for charters from a “social justice framework,” such as Howard Fuller in Milwaukee. Throughout the 1990s, 2000s, and 2010s, some progressive politicians pushed charters with the same zeal as conservatives, even if they did so for different reasons.

For a while, the intoxicating popularity of charter school expansion would habitually take up all the oxygen in school policy debates, as school “reform” became equated with expanding charters. From the progressive perspective, making schools better for low-income children meant giving families more charter options. That’s why the leaders of the Democratic Party in the early 2010s, including such luminaries as New Jersey Senator Cory Booker and President Barack Obama, promoted charter schools as vigorously as any Heritage Foundation wonk.

It was Betsy DeVos who altered the partisan landscape. Trump’s victory in 2016 placed DeVos at the top of the education bureaucracy, which in turn clarified some of the ambiguity surrounding charter schools. If DeVos was in favor of their expansion, Democrats felt more and more pressure to stand against them. By the 2020 elections, Democratic presidential hopefuls were elbowing one another out of the way in their rush to denounce charters, and even Cory Booker had to backtrack from the issue that had been his signature reform.

Now, as conservatives push the federal judiciary to bless an enterprise that would tear down the wall between church and state and empower the creation of openly religious charter schools, the strategic ambiguity that charter advocates had long nurtured seems suddenly poised to collapse. Clearly, however, the idea that a public school could be run by a church appeals to plenty of conservatives. Like Speaker Mike Johnson, there are plenty of Americans out there who think that Americans’ rights come directly “from God Himself.” There are plenty of Americans, like Speaker Johnson, who believe the separation of church and state is an unfortunate novelty, an artifact of the “last 60 or 70 years,” a relic of the tragic 1960s that has no justifiable constitutional power.

For those Americans, the Oklahoma case might seem like a unique chance to change the rules of the game, to put God back in charge of public schools. But it ignores a crucial fact of American political life. Namely, the vast majority of Americans don’t want anything of the kind. When Gallup asked Americans for their best ideas about how to improve public schools, only small minorities—2 percent in 2004 and 3 percent in 2009—thought the government should stop running public schools. 

In spite of all the culture-war headlines these days, Americans tend to like their children’s public schools, and charters have thrived by lying low in the broad, confusing middle ground between public and private schools. They are public schools, in a sense, and therefore they deserve full funding by taxpayers and the full support of a public school–loving America. But they have sometimes gotten away with acting like private schools when it has been convenient, as well, a chimeric quality that has allowed them to occupy a broadly popular place in the public imagination.

Some conservatives clearly think the time has come for greater clarity, and they’ve drawn encouragement from a slew of rulings rendered by the Supreme Court. In recent cases, the Roberts court has sidestepped many of the liberal norms established in the 1960s. It has allowed more public money to flow to religious private schools. It has allowed public school coaches to pray at football games.

But the Oklahoma case presents conservatives with only losing possibilities. Say, for example, that a truculently conservative Scotus majority rules that the Oklahoma charter school can be religious because it is, in fact, a private school. By pushing charter schools out of the realm of public education, they will have effectively crushed the “all things for all people” promise that conservative charter school proponents have been building for decades. They will be going against even the staunchest conservatives, like Betsy Devos, who insisted throughout her tenure, with an ever-increasing crescendo of implausibility, “Charter schools are public schools.”

If, on the other hand, Scotus rules that a charter school—as a public institution—cannot be run directly by a church and teach church doctrine, it makes things that much harder for all the other quasi-public schools that have benefited from the confusing status of charters. And even if Scotus avoids wading into this mess, establishing a frankly religious charter school means pushing the meaning of “charter schools” ever more firmly to only one side of the culture-war divide. By targeting the wall of separation between church and state, conservatives have accidentally brought down the wall of confusion that has always protected conservative charter schools. Like they say, be careful what you wish for.