Is It Unconstitutional to Prohibit Faith-Based Schools from Becoming Charter Schools?

Abstract

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. Part I describes the “school choice” movement of the past 50 years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. Part II argues a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.