As the Biden administration prepares to take office in January, discussions over whom Joe Biden will choose to succeed Betsy DeVos as education secretary have been contentious. But one thing's clear: whomever he selects—"a public educator," we're assured—is likely to clash with the previous administration's enthusiasm for school choice.
Luckily, in some cases, it won't matter. The June outcome of the Supreme Court case Espinoza v. Montana Department of Revenue paved the pathway for an expansion of parental choice on the state level, including opening up the possibility of religious charter schools. And since Espinoza is a decision interpreting the federal constitution, delivered by the highest court of the land, this pathway will remain open, even if Biden's frontrunners for education secretary have already voiced antipathy for it.
In Espinoza, the Supreme Court concluded that any states subsidizing private education—whether through tax credits, vouchers or other means—cannot withhold such funding from certain schools merely because they are religious. As Chief Justice Roberts put it, writing for the majority, "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."
The decision raised obvious questions, which are worth exploring in anticipation of hostility from the incoming administration. Namely, as Justice Breyer articulated in his dissent: "What about charter schools?" Traditionally, state and federal laws have strictly prohibited religious charter schools. Would Espinoza render those laws unconstitutional?
The answer to this question is complicated. As I explain in a new report for the Manhattan Institute, it turns on the intersection of the First Amendment's two religion clauses. The first is the Free Exercise Clause—rearticulated just last month in the Supreme Court's decision rejecting New York's COVID-related restrictions on religious worship. It demands neutrality toward private religious entities, including schools. The second is the Establishment Clause, which requires government entities, including schools, to be secular.
Nearly two decades ago, the Supreme Court held, in Zelman v. Simmons-Harris, that the Establishment Clause does not preclude faith-based schools from participating in publicly funded private-school choice programs. Espinoza went a step further. It held that the Free Exercise Clause precludes the government from prohibiting their participation. Neither case, however, overturned the longstanding rule that the Establishment Clause requires government schools (what we call public schools) to be secular.
So, for First Amendment purposes, should charter schools be treated as private schools, which can be religious, or as public schools, which cannot? On the one hand, they are ubiquitously designated as "public" in charter school laws. On the other, while U.S. "public schools" historically have been both operated and controlled by government entities (school districts), neither is the case with charter schools. They are privately operated schools that are exempt from many regulations governing district public schools.
As a result, several federal courts have held that charter schools are not "state actors," which is a technical way of saying that they are private schools for federal constitutional purposes. These courts reasoned—correctly, in my view—that charter schools exercise sufficient autonomy from government control that their actions are not attributable to the government. And, if charter schools are private schools for federal constitutional purposes, then the Constitution's demand of religious neutrality requires states authorizing them to allow religious charter schools.
In other words, as the Justice Department's Office of Legal Counsel correctly concluded in a recent opinion letter, laws prohibiting the public funding of charter schools affiliated with religious organizations violate the Free Exercise Clause.
Just before the election, DeVos put Espinoza to work. Responding to the Justice Department's letter, she announced that the federal government would no longer enforce laws precluding charter schools that are "affiliated with a sectarian school or organization" from receiving federal funds. Indeed, DeVos's admirable statement arguably could have gone even farther. Espinoza requires the government not only to permit charter schools to be affiliated with religious organizations, but also to permit them to be actually religious—that is, to allow charter schools to teach religion as the truth, just as faith-based private schools participating in parental choice programs are allowed to do.
Given the rhetoric from the frontrunners Biden is considering for education secretary, it's fair to assume whomever he chooses won't share DeVos's zeal for religious freedom and school choice. Luckily, he or she won't have to. In the wake of Espinoza, efforts to permit religious charter schools—either by litigation, legislation or administration—will materialize in the coming months. And those efforts ought to succeed.
Supporters of faith-based schools have long argued that barring religious schools from accessing public education funds is unjust and unconstitutional. With respect to private-school-choice programs, this argument has—at long last—carried the day. Properly understood, the Constitution's demand for neutrality toward religion ought to be extended to charter school law as well.
This piece originally appeared at Newsweek
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Nicole Stelle Garnett, John P. Murphy Foundation professor of law at University of Notre Dame and adjunct fellow at the Manhattan Institute, is author of the recent report, Religious Charter Schools: Legally Permissible? Constitutionally Required?
This piece originally appeared in Newsweek