Pluralism Is Good
The nation’s first modern voucher program, in Wisconsin, and first charter school program, in Minnesota, were created within a few months of one another—in 1990 and 1991, respectively. Few observers foresaw that charter schools would, for the next two decades, eclipse vouchers as the preferred parental-choice mechanism. Conservatives had promoted vouchers for decades; charter schools were an entirely novel idea. Vouchers would expand access to existing schools, including religious schools with a long record of excellence; charter school programs necessitated the creation of new schools. Within a few years, however, elite opinion had coalesced on the view that charters were enough choice. They offered a politically palatable alternative to vouchers. Charter schools would be privately operated and freed from regulations governing traditional public schools, but they would be called “public,” and they would be secular. Because of the support for charters on the political left, many on the right redirected their energies away from private-school choice and toward charters.
This charter compromise had consequences. Not only were charter school laws sometimes enacted to thwart vouchers, but they also forced religious-school operators to choose between their faith commitments and public funding: If you want a steady stream of government dollars, your schools must be religion-free. Some chose, and continue to choose, to take that deal. The Archdiocese of New York, for example, recently announced that it was closing four more of its urban Catholic schools and enlisting Brilla Public Charter Schools, a secular operator, to run two of them going forward. Other religious schools similarly “converted” into secular charter schools in order to secure access to public funding.
Many others rejected the deal, for reasons illustrated by the opening vignette in Derrell Bradford’s thoughtful counter to this essay. As Monsignor Kevin Hanbury explained when Bradford suggested that the Archdiocese of Newark convert its Catholic schools into secular charter schools, sacrificing their religious mission and identity was too dear a price to pay for public funding. And without those public funds, those schools closed their doors forever. Competition with charter schools has contributed to these closures, although other factors certainly have as well. When the Catholic schools closed, thousands of disadvantaged children lost a lifeline. Urban Catholic schools, in particular, have a commendable record of transforming young lives, and, my own research demonstrates, stabilizing neighborhoods. Decades of research finds that Catholic school students, especially disadvantaged ones, perform better than their public school peers across a range of metrics. And this record of success persists: Catholic schools dramatically outperformed traditional public and charter schools on the most recent National Assessment of Educational Progress, the overall results of which dishearteningly demonstrate that kids have not recovered from learning losses incurred during the Covid-induced school closures. Why does it make any sense to foreclose the option of some of these schools participating in charter school programs?
Some charter school proponents argue that allowing religious charter schools could have negative consequences. Some states, rather than approving such schools, might stop approving any new charter schools, or, worse, close them all. Michael Petrilli, president of the Thomas B. Fordham Institute, recently warned that “the Supreme Court might be about to answer the teachers unions’ prayers by critically wounding the most successful education reform initiative in a generation.”
These predictions, like so much of the rhetoric surrounding religious charter schools, are hyperbolic. But the underlying premise—that government officials’ antipathy to religion is a reason to continue state-sanctioned religious discrimination—is curious. The fact that some government officials dislike religion in general—or certain religions in particular—is not a justification for religious discrimination; it is one reason why the First Amendment prohibits it. Oklahoma Attorney General Gentner Drummond repeatedly says bigoted things about Muslims, for example, but that’s hardly a reason to ban religious charter schools in Oklahoma.
In any event, more is at stake here than the continuity of charter schools’ funding. Legally, the question before the court turns on whether charter schools are private actors or government actors. Up to this point in the case, the argument about the legal status of Oklahoma charter schools has focused on the so-called state action doctrine, which recognizes the right of private organizations to participate in government work without losing their status as nongovernmental entities. Under the state action doctrine, a private entity is only bound by the federal Constitution in the very rare cases when the entity is so closely controlled that its actions are attributable to the government. However, in Drummond’s brief at the Supreme Court, he pivoted to a slightly different argument, asserting that all charter schools in Oklahoma are actually government entities because they are created by the chartering process. But I dispute that. A private nonprofit doesn’t automatically become a government entity just because it is engaged in work alongside a state or local government or, for that matter, is created by the government—after all, all corporations are created by the corporate chartering process. Under either theory, Oklahoma charter operators ought to be considered private, not government, actors: They are private nonprofits, their employees don’t work for the government, and they are statutorily guaranteed many freedoms from the rules covering government-run public schools.
Nevertheless, many charter advocates cling to their “publicness,” which they mistakenly equate with being governmental. When St. Isidore’s charter application was approved, the National Alliance for Public Charter Schools stated that “all charter schools are public schools, and as such must be non-sectarian” and promised to “fight to preserve the public nature of these unique schools.” The alliance made an unfortunate logical error. Prior to chartering, all public schools were run by the government and were rightly considered state actors. But chartering created separate space in public education for private nonprofit groups to run schools. Charters, as private entities, should not be considered government entities simply because they are engaging in work similar to government-run schools. Charter schools ought to fight any suggestion that they are government schools. They are, by design, freed from government control so as to enable innovation. A decision that they are government actors would undermine that goal by placing them in a constitutional straitjacket. And that decision’s ramifications would also threaten the autonomy of government-funded private organizations that provide services other than education, including health care, foster care, community development, and poverty alleviation.
