Public Schools, Private Faiths: The Legal Fiction of Religious Charters

In 2024, the nation’s first publicly funded religious charter school was established. With the Oklahoma Statewide Virtual Charter School Board’s approval of the St. Isidore of Seville Catholic Virtual School, a legal debate emerged over the constitutionality of religious charter schools. This legal debate culminated in Oklahoma Statewide Charter School Board v. Drummond, where the Oklahoma Supreme Court held that authorizing a religious charter violated both the state constitution and the Establishment Clause of the First Amendment. [1] The judgement of the Supreme Court of Oklahoma was affirmed by an equally divided Supreme Court (Justice Amy Coney recused herself from the vote), leaving the constitutional question unresolved nationwide.

At the center of Drummond lies a critical question: can a religiously affiliated charter school — one created by state statute, funded by taxpayer dollars, and operating as a tuition-free public school — claim the freedoms of a private religious institution? Precedent suggests that it can not. The educational operations of a privately managed, publicly funded charter school constitute state action under the First and Fourteenth Amendments because of their statutory origin, core public function (free education), and accountability to state oversight. Consequently, permitting religious charter schools directly violates the Establishment Clause by compelling state endorsement and financing of sectarian instruction under the guise of public education, setting a dangerous precedent that undermines the constitutional mandate of neutrality.

Charter schools occupy a hybrid space in American education. They are publicly funded and tuition-free, yet privately managed and exempt from many public-sector regulations. This dual status becomes constitutionally untenable when such schools attempt to avoid constitutional scrutiny by claiming a private identity like a religious affiliation, even though they are performing an inherently governmental role. Accordingly, the inquiry turns on a foundational constitutional question: whether the conduct of a charter school is properly classified as state action for Establishment Clause purposes.

The Establishment Clause of the First Amendment prohibits the government from “making a law respecting an establishment of religion,” a principle developed to prevent state-sponsored faith, religious coercion, or the privileging of one religious tradition over others. Its intended purpose is twofold: to safeguard individual freedom of conscience and to maintain governmental neutrality in matters of religion. In practice, this means that when the state acts, whether directly through its officials or indirectly through entities performing governmental functions, it may not endorse, fund, or facilitate religious activity. The neutrality mandate therefore makes it essential to determine when an ostensibly private educational institution is sufficiently intertwined with the state to trigger constitutional limits.

The Supreme Court has long held that the Establishment Clause limits only state actors. Therefore, before addressing any First Amendment claim, courts must determine whether a charter school’s actions are fairly attributable to the state. [2] This “state action threshold” is dispositive.

In Marsh v. Alabama (1946), the Court held that a privately owned “company town” could not exclude religious leafleting because it performed a “traditional public function.” [3] Education, like governance, is such a function. Every state constitution mandates the provision of free K–12 education, often through compulsory attendance laws that treat schooling as a sovereign duty rather than a market service.

When a state authorizes a charter school to deliver this compulsory, tuition-free education, the school steps into the shoes of the state itself. States such as Oklahoma and Alabama explicitly define charter schools as part of the “public school system,” funded per pupil through state appropriations. [4] Under Marsh, an entity performing an “exclusively public function” cannot escape constitutional accountability merely by private incorporation.

Even if one resists the Marsh analogy, charter schools satisfy the “nexus” or “joint participation” test articulated in Lugar v. Edmondson Oil Co. (1982) and Burton v. Wilmington Parking Authority (1961). [5] In Lugar, the Court found state action where private conduct was entwined with state procedures and power; in Burton, the Court held that a private restaurant leasing space in a public facility became a “joint participant” in state action because of its symbiotic relationship with the state.

Charter schools exhibit similar entanglement: they are created by statute, funded entirely by public appropriations, and supervised by state-appointed boards. Teachers administer state assessments, curricula must meet state academic standards, and enrollment is open to the general public. This pervasive integration between state authority and school operations establishes the requisite nexus for attributing their actions to the state.

By contrast, private schools receiving indirect aid through vouchers do not trigger the same constitutional concerns; funding in those programs flows through independent parental choice rather than state designation. [6] Charter schools, however, receive direct appropriations from the state and exercise delegated governmental authority. This statutory structure places them squarely within the scope of state action, distinguishing them from private recipients of neutral aid.

Modern Establishment Clause doctrine has shifted from the rigid test announced in Lemon v. Kurtzman (1971), which struck down state reimbursement of parochial-school expenses and required a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive government entanglement. In Kennedy v. Bremerton School District (2022), where the Court upheld a public high school coach’s post-game private prayer, the Court replaced Lemon with a “historical practices and understandings” framework. [7] Yet even under that approach, direct state commissioning and funding of religious instruction exceeds constitutional bounds. The early Republic consistently rejected state-sponsored religion in education: states such as Alabama, Massachusetts, and Virginia constitutionally prohibited the use of public funds for sectarian schools, [8] and the nineteenth-century common-school movement entrenched the principle that public education must remain secular to preserve civic unity. Authorizing a Catholic charter as a public school thus contradicts both modern doctrine and founding-era practice.

Unlike voucher programs considered in Carson v. Makin (2022) and Espinoza v. Montana Department of Revenue (2020), St. Isidore’s funding does not arise from private choice. In those cases, the Court held that once a state creates a neutral benefit generally available to private citizens, it may not exclude religious schools from participation. But here, the Oklahoma Charter School Board itself designated St. Isidore as a public entity, guaranteed it per-pupil appropriations, and conferred governmental status. [9] That transformation converts what might otherwise be a neutral benefit into direct state aid—a constitutionally forbidden partnership between church and state even under Bremerton’s historical-practices test, because the state is directly commissioning religious education within the public system.

Allowing a Catholic charter to teach religion while carrying the legal imprimatur of a public school constitutes clear state endorsement of faith. Lemon v. Kurtzman remains relevant not for its rigid test, but for its enduring concern with “excessive entanglement” between church and state. [10]

If a religious charter were permitted to operate as a public school, state regulators would necessarily monitor its curriculum, teacher hiring, and instruction to ensure compliance with secular standards. This oversight would entangle the state in reviewing religious content, precisely the intrusion the Establishment Clause forbids.

The parallel to Board of Education of Kiryas Joel Village School District v. Grumet (1994) is apt. There, the Court struck down a special school district created for a Hasidic Jewish community, holding that the state had impermissibly delegated public authority to a religious group. [11] Likewise, Oklahoma’s authorization of a Catholic virtual school would effectively create a state-endorsed entity serving one faith at public expense. This entanglement is both administrative (through oversight) and symbolic (through endorsement). Together, they offend the neutrality principle that undergirds the Establishment Clause.

Proponents of religious charters often invoke the Free Exercise Clause, arguing that exclusion from charter programs constitutes discrimination. Yet denying a religious organization public-school status is not discriminatory, rather it preserves constitutional boundaries. In McCollum v. Board of Education (1948), the Court held that public school facilities and resources could not host or finance sectarian instruction. [12] Denying direct funding to a religious school is thus not hostility toward religion but fidelity to the First Amendment. The Free Exercise Clause protects private religious practice from government coercion, not the right to perform governmental functions with public money. 

A state’s decision to exclude religious institutions from performing a core public function is constitutionally justified, as such inclusion would itself violate the Establishment Clause. Authorizing religious charters will erode the balance between the Free Exercise and Establishment Clauses established in Everson v. Board of Education (1947). [13] Since Everson, the Court has maintained that the government must neither coerce religious practice nor finance it. Allowing religious charters would collapse this equilibrium, merging state and church in the sphere of education.

Religious charter schools occupy a constitutional fault line where education reform collides with First Amendment boundaries. Under both the public-function and nexus tests, they are state actors. By funding and authorizing a Catholic charter as part of its public school system, Oklahoma effectively commissioned religious instruction on behalf of the state, an act that contravenes the Establishment Clause under any interpretive approach.

Even under the Court’s recent turn toward historical analysis, the direct financing of sectarian education as public education remains unconstitutional. Neutrality cannot extend so far as to sanction state-sponsored catechism without erasing the wall of separation altogether.

Courts must therefore draw a firm line: religious entities may compete for indirect public benefits as private actors, but they cannot serve as state agents in delivering compulsory, tax-funded education. Upholding this distinction preserves both religious liberty and the constitutional integrity of public schooling.

Edited by Audrey Carbonell and Noelle Shih

[1] Oklahoma Statewide Charter School Board v. Drummond (2024–25). 

[2] Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).

[3] Marsh v. Alabama, 326 U.S. 501 (1946). 

[4] Ala. Code §16-28-3; Okla. Stat. tit. 70 §3-136.

[5] Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

[6] Zelman v. Simmons-Harris, 536 U.S. 639 (2002). 

[7] Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

[8] State Constitutional Provisions on Public Education and Religion (Ala. Const. art. XIV, §263; Va. Const. art. IV, §16).

[9] Espinoza v. Montana Department of Revenue, 591 U.S. 176 (2020); Carson v. Makin, 596 U.S. 431 (2022).

[10] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[11] Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). 

[12] McCollum v. Board of Education, 333 U.S. 203 (1948). 

[13] Everson v. Board of Education, 330 U.S. 1 (1947).