NEW YORK, NY – MI adjunct fellow Nicole Stelle Garnett responds to Oklahoma Governor Stitt's expression of support for religious charter schools in Oklahoma:
"Governor Stitt’s reaffirmed commitment to permitting religious charter schools in Oklahoma is commendable. It came after Oklahoma Attorney General Drummond withdrew his predecessor's opinion letter, which had concluded that bans on religious charter schools are unconstitutional. Drummond’s about-face is, as Gov. Stitt notes, both mistaken and a setback for religious liberty.
"The First Amendment prohibits anti-religious discrimination by the government. As Chief Justice John Roberts put it in Carson v. Makin (2022), 'a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits,' including school-choice programs. Laws prohibiting religious charter schools cannot be reconciled with this non-discrimination principle. A state may not operate a charter school program—one that permits private entities to operate a wide variety of publicly funded schools—but exclude otherwise qualified schools simply because of their religious character or affiliation.
"In Espinoza v. Montana (2020), Roberts explained that 'a State need not subsidize private education, but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.' And, although designated as 'public schools,' charter schools are, for federal constitutional purposes, private actors. This means that current charter laws force religious organizations to choose between receiving funds and remaining religious."
- Nicole Stelle Garnett is a senior fellow at the Manhattan Institute and the John P. Murphy Foundation Professor of Law at the University of Notre Dame.
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