New Report Explores Legality of Religious Charter Schools in Light of Espinoza

Nicole Stelle Garnett, a new adjunct fellow with the Manhattan Institute, explains why current laws prohibiting religious charter schools likely violate the Free Exercise Clause

NEW YORK, NY — In June 2020, the U.S. Supreme Court held, in Espinoza v. Montana, that states cannot exclude religious schools from private school choice programs. But what of charter schools? Can states prohibit religious charter schools, as they currently do, or does the Espinoza ruling render such restrictions unconstitutional?

Nicole Stelle Garnett, who recently joined the Manhattan Institute as an adjunct fellow, addresses these complex questions in a new report, concluding that current laws prohibiting religious charter schools likely violate the First Amendment’s Free Exercise Clause. As efforts to permit religious charter schools are likely to materialize in the near future, she outlines three paths such efforts could take—legislative, executive, and litigative—and discusses the costs and benefits of each approach.

The report is Garnett’s inaugural research contribution as an adjunct fellow for the Manhattan Institute where she also contributes essays to City Journal. In addition to her role at the Manhattan Institute, Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame, where she is also a fellow of the Institute for Educational Initiatives and the senior policy advisor for the Alliance for Catholic Education, a program engaged in a wide array of efforts to strengthen and sustain K-12 Catholic schools. She is also the co-author of Lost Classroom, Lost Community: Catholic Schools' Importance in Urban America (University of Chicago Press, 2014) and the author of Ordering the City: Land Use, Policing and the Restoration of Urban America (Yale University Press, 2009) as well as numerous articles on education policy, urban development, and land-use planning. 

Prior to joining the faculty at Notre Dame in 1999, Garnett served as a law clerk for Associate Justice Clarence Thomas of the Supreme Court of the United States and Judge Morris S. Arnold of the U.S. Court of Appeals for the Eighth Circuit. She also practiced law at the Institute for Justice, a non-profit public-interest law firm in Washington, D.C., where she helped to defend the inclusion of faith-based schools in private-school choice programs. She received her B.A. in Political Science, with distinction, from Stanford University and her J.D. from Yale Law School.

“The Manhattan Institute is thrilled to welcome Garnett to our team,” said director of education policy Ray Domanico. “We are committed to expanding educational opportunities for all communities through a dedication to educational pluralism. Garnett's research and publications have contributed greatly to our understanding of the important public benefits that Catholic schools provide. She also has a record of explicating the legal standing and protection of religious and other schools of choice in our overall educational system.”

Click here to read the full report.