Public School, Private Creed
Brian Broderick September/October 2026It is not often that the United States Supreme Court decides a high-profile case in one sentence. Last year, however, it did just that. In Oklahoma Statewide Charter School Board v. Drummond, the Court was asked whether a K-12 charter school may be operated as an overtly religious institution. Because charter schools have traditionally been regarded as public schools, the case had massive implications for the separation of church and state as well as the role of religion in public education. The Court, however, rendered its decision as follows: “The judgment is affirmed by an equally divided court.”1 Although the Court’s decision was a nominal defeat for religious charter schools, it represents neither an affirmation nor a rejection of the idea that charter schools, despite being publicly established and publicly funded, may be religious in character. Thus, this debate is far from over.
The significance of this issue cannot be overstated. The founders believed that, for American democracy to succeed, the citizenry needed education in literacy, history, and moral character.2 In seeking to uphold this vision, the Supreme Court has long interpreted the Constitution to require that church and state be kept separate in public schools—not as a means of discounting religion, but to ensure that children of all faith backgrounds can receive a public education without being unduly coerced to violate their conscience.3 Thus, a public education that is open to all religious faiths, and biased toward none, is one of the foundational pillars of our republic.
Religious charter schools, however, would turn this vision on its head by creating publicly chartered, publicly funded schools that cater only to children and families willing to submit to the tenets of a particular religious faith. To understand how religious charter schools could do so, it is necessary to examine two key developments in American education over recent decades: public funding for private (usually religious) education and the growth of charter schools within the public school system. I address each in turn.
The Rise of School Choice
When the Court decided Brown v. Board in 1954, declaring segregation in public schools unconstitutional, many white parents reacted by pulling their children out of public schools. The South, in particular, saw a rapid expansion of private, often nominally “Christian” schools that catered to white parents who wanted to maintain a segregated education system; in fact, these schools soon became known as “segregation academies.”4 Yet, for the most ardent segregationists, using private schools as a loophole to Brown was not enough; they wanted to make the government foot the bill. To that end, several Southern states established “tuition grant” programs to funnel tax dollars to parents to spend at any school they wished.5 Although the motivation behind these programs was clearly racial, their proponents marketed them with such race-neutral slogans as “school choice” and “parents’ rights.”6
The desire to fund private education through public funds endures today. In recent decades, and especially since 2022, there has been a growing movement to expand “voucher” programs (and other similar mechanisms, such as education savings accounts) that enable parents to use public funds to cover private school tuition or other education-related expenses in lieu of attending a public school.7 Once again, “school choice” and “parents’ rights” have been rallying cries for these initiatives.8
Because most voucher funding goes toward tuition at religious schools, public school advocates have challenged voucher programs under the establishment clause of the First Amendment, arguing that vouchers constitute impermissible government support for religion. In 2002, however, the Court rejected this argument in Zelman v. Simmons-Harris.9 The Court reasoned that voucher programs are permissible because they do not directly send tax dollars to religious schools; rather, the funds are allocated to parents, who may then spend that money at the school of their choice.10
While Zelman held that states can allow voucher programs to fund religious schools, it never required states to do so. More recent case law has changed that. In a series of decisions during the past decade, most notably Espinoza v. Montana Department of Revenue and Carson v. Makin, the Court held that under the First Amendment, states must allow religious private schools to receive funding through voucher programs if the state permits secular private schools to receive such funding.11 In doing so, the Court framed the exclusion of religious schools, not as upholding the separation of church and state under the establishment clause, but, rather, as discrimination against religious schools in violation of the free exercise clause. These cases marked a notable shift from how the Court has traditionally approached the relationship between church and state.
Beyond Vouchers
Yet for those who desire publicly funded religious schools, voucher programs do not go far enough, even with Espinoza and Carson. Their greatest hurdle is that the existence and nature of voucher programs is a state-level decision. While some states have enacted widespread school voucher programs, most other states prefer to invest in traditional public education. Even in such conservative-leaning states as Kentucky and Nebraska, voters in the 2024 election resoundingly defeated ballot measures to expand voucher programs.12 Moreover, even in states that have vouchers, their value is often not enough to cover the full cost of tuition.13 As a result, those who favor expanding public funding for religious schooling now argue that there is another way to achieve their goal: charter schools.
This, of course, begs the question: What exactly is a charter school? The answer varies by state, but there are a few common threads among state charter school systems. In short, charter schools are a unique blend of public and private schooling designed to bring out the best of both worlds. Like private schools, they are often governed by independent boards and are free from many of the usual regulations that govern traditional public schools. Like traditional public schools, however, charter schools are completely tuition-free, must admit all students who apply (or determine admission by random lottery), and are subject to certain oversight and accountability measures that private schools are not.14
Charter schools, therefore, represent a unique tension between public and private. It is this tension that makes the question of religious charter schools such an intriguing one. If charter schools are public schools, as they have traditionally been regarded, then it would violate the establishment clause for a state to create and fund what would essentially be a religious public school. If charter schools are considered private, however, then the free exercise clause would allow—indeed, now require under Espinoza and Carson—that religious institutions be allowed to form charter schools. Because almost every state allows for charter schools, and such schools are free for all students to attend, publicly funded religious education could greatly expand if the Supreme Court rules in religious charter schools’ favor.
An Answer Deferred
The first attempt to create a religious charter school was St. Isidore of Seville Catholic Virtual School in Oklahoma. Although the state approved St. Isidore’s application to become a charter school, the Oklahoma Supreme Court struck down that approval, ruling that a charter school cannot be religious under state law or under the federal First Amendment.15 St. Isidore challenged the decision before the United States Supreme Court in Oklahoma Statewide Charter School Board v. Drummond, but because the case resulted in a deadlocked 4-4 vote, the Oklahoma Supreme Court’s ruling stands with respect to St. Isidore.
Yet, since a tied vote does not create any precedent, the underlying questions regarding whether charter schools can be religious remain unsettled. Consequently, at least three serious efforts to establish religious charter schools have been mounted in the year following Drummond: Riverstone Academy in Colorado, Ben Gamla Jewish Charter School in Oklahoma, and Wilberforce Academy in Tennessee.16 Although Riverstone has since folded, Ben Gamla and Wilberforce have both filed suit in federal court. It is quite possible that these cases could bring the religious charter school question back to the Supreme Court in the near future.
Choice for Whom?
This debate has real implications for American public schools. Expansions of voucher programs and charter schools have both been shown to reduce enrollment in traditional public schools, which, in turn, reduces public school funding.17 This means that students in public schools have less access to well-paid teachers, extracurricular activities such as art, music, and sports, and important services for students with special needs. In fact, in some communities, some local public schools have had to shut down because of enrollment and funding cuts brought about by vouchers and charter schools.18
In extreme cases, such as New Orleans, Louisiana, and Highland Park, Michigan, charter schools replaced the traditional public school system entirely.19 Thus, if charter schools can be religious, and a community has enough support for such schools, it is entirely possible that the only publicly funded, tuition-free schools available in that community would be religious charter schools. This poses a significant contrast to the founders’ vision of public education for all citizens, especially because religious charter schools maintain that they have a right to exclude students based on the school’s religious views. The proposed St. Isidore charter school, for example, had a policy that any student or parent who expressed “disagreement with Catholic faith and morals” would be “choosing not to remain a part of the school community.”20
Accordingly, students and families that express religious convictions that go against those of the school’s religious authority would be unable to attend these publicly funded schools. In this way, the call for “school choice” and “parents’ rights” may serve to exclude smaller and less politically powerful religious groups from public education, much as these same buzzwords were used to justify excluding minority racial groups in the past. Other groups of students, especially LGBTQ+ children (or even children with LGBTQ+ family members) could similarly be excluded.21 Although religious charter school advocates champion their stance as an expansion of “religious freedom,” it is important to question which groups will get to have this freedom and which will not.
Strings Attached
Religious charter schools could also limit access to traditional religious education. Because charter schools are tuition-free, they have a clear competitive advantage over private religious schools that charge tuition, especially in states in which voucher programs cannot cover all (or any) of the tuition costs. But that advantage comes at a price: submission to government oversight and monitoring. For those who value traditional religious education without interference from the state, competition from religious charter schools may make such education more difficult to offer.
Religious charter schools, therefore, pose complex legal, political, and moral questions. While they may make religious education more accessible and affordable to some families, they could box out others. They also serve to rewrite the founders’ vision of public schools open to the entire citizenry, to ensure that all children can learn the skills they need to work together in a pluralistic democracy. Whatever may be the ultimate fate of religious charter schools, the ramifications for American democracy and religious freedom are sure to be significant.
1 Oklahoma Statewide Charter School Board v. Drummond ex rel. Oklahoma, 605 U.S. 165, 166 (2025) (per curiam).
2 Nancy Kober and Diane Stark Rentner, “History and Evolution of Public Education in the US,” Center on Education Policy, George Washington University, 2020.
3 Engel v. Vitale, 370 U.S. 421, 424 (1962); School District of Abington Township v. Schempp, 374 U.S. 203, 224 (1963).
4 John C. Jeffries Jr. and James E. Ryan, “A Political History of the Establishment Clause.” Michigan Law Review 100 (2001): 279, 330–334.
5 Chris Ford, Stephanie Johnson, and Lisette Partelow, “The Racist Origins of Private School Vouchers,” Center for American Progress, July 12, 2017.
6 Martha Minow, “Confronting the Seduction of Choice: Law, Education, and American Pluralism,” Yale Law Journal 120 (2011): 823; Nancy MacLean, “How Milton Friedman Exploited White Supremacy to Privatize Education,” Working Paper No. 161, Institute of New Economic Thinking, September 2021.
7 Libby Stanford, Mark Lieberman, and Victoria A. Ifatusin, “Which States Have Private School Choice?” Education Week, June 11, 2025.
8 Lindsey M. Burke, “Department of Education,” in Mandate for Leadership: The Conservative Promise, ed. Paul Dans and Steven Groves (Washington: The Heritage Foundation, 2023), pp. 332, 333, 342–345.
9 Zelman v. Simmons-Harris, 536 U.S. 639, 643–645 (2002).
10 Zelman v. Simmons-Harris, 536 U.S. at 652.
11 Espinoza v. Montana Department of Revenue, 591 U.S. 464, 484–487 (2020); Carson ex rel. O.C. v. Makin, 596 U.S. 767, 788–789 (2022).
12 Michael McShane, “Understanding the Results From Three School Choice Referenda,” Forbes, Nov. 6, 2024.
13 The Education Justice Research and Organizing Collaborative, “Myths and Facts About Vouchers,” NYU Steinhardt, online at steinhardt.nyu.edu.
14 Peter Iglinski, “Do the Benefits of School Choice Miss the Grade?” University of Rochester News Center, Aug. 11, 2023.
15 Drummond ex rel. State v. Oklahoma Statewide Virtual Charter School Board, 558 P.3d 1, 15 (Okla. 2024).
16 Mark Walsh, “Religious Charter Schools Push New Cases Toward Supreme Court,” Education Week, Feb. 6, 2026.
17 David S. Knight and David DeMatthews, “The Fiscal Impacts of Expanded Voucher Programs and Charter-School Growth on Public Schools: Recommendations for Sustaining Adequate and Equitable School Finance Systems.” National Education Policy Center, November 2024.
18 Robert Bifulco and Randall Reback, “Fiscal Impacts of Charter Schools: Lessons From New York,” Education Finance and Policy 9, no. 1 (January 2014): 86–88.
19 J. Celeste Lay, Public Schools, Private Governance: Education Reform and Democracy in New Orleans (Philadelphia: Temple University Press, 2022), p. 16; Mike Binelli, “Michigan Gambled on Charter Schools. Its Children Lost,” New York Times Magazine, Sept. 5, 2017.
20 Original Petition at 36-40, OKPLAC, Inc., v. Statewide Virtual Charter School Board, CV-2023-1857 (Dist. Ct. Okla. Cty., filed July 31, 2023).
21 Julia Donheiser, “Chalkbeat Explains: When Can Private Schools Discriminate Against Students?” Chalkbeat, Aug. 10, 2017.
Article Author: Brian Broderick
Brian Broderick is a Christian, former public school teacher, and recent graduate of Harvard Law School. The views in this article are solely those of the author and do not reflect those of any other person, office, employer, or institution.