For years, charter friends and charter foes have debated whether charter schools are public schools and whether they are, like public schools, “state actors.” The lame-duck Attorney General of Oklahoma recently declared that religious schools could be charter schools. He seems to believe that privately managed charter schools are not public schools, because no one claims that religious schools are public schools. His opinion does not have the force of law, but you can see that Oklahoma is eager to give public money to religious schools.

The AG’s opinion raises many questions. If charter schools are religious schools, may they limit admission only to members of their faith? May they exclude gay students, teachers, and families? May they substitute religious books for the state textbooks? May they indoctrinate their students into their faith? If charter schools are religious schools, how do they differ from voucher schools? What state regulations apply to them, if any?

Peter Greene writes about the issue here:

The Supreme Court has slowly and steadily busted a hole in the wall between church and state when it comes to education. AG opinion: Statute barring charter school operators from religious affiliation unconstitutional (nondoc.com)

In a fifteen-page opinion issued December 1, Attorney General John O’Connor argued that in the wake of Trinity Lutheran, Espinoza, and Carson, he believed that SCOTUS would “very likely” find Oklahoma’s charter law restriction on nonsectarian or religious charters unconstitutional. Therefore, his opinion is that the state should no longer follow the law forbidding sectarian or religious charter schools.

Each of those cases elevated the free exercise clause of the First Amendment over the establishment clause. In other words, the court has repeatedly (and in a break from previous court decisions) found that the free exercise of religious beliefs outweighs any restrictions against government-sponsored religious activity.

Carson v. Makin in particular established that if the state allows for taxpayer funding of any non-public secular schools, it cannot exclude religious schools from the chance to receive taxpayer funding. While Carson involved school vouchers and private schools, observers like Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education, noted that in light of these three decisions, “states will probably be forced to let churches and other religious institutions apply for charters and operate charter schools.”

While charter schools have often been considered public schools (at least part of the time), the extension of free-exercise protections, as Welner wrote after the prior decision, complicate the issue.

If courts side with a church-run charter school, finding that state attempts to restrict religiously infused teachings and practices at the school are an infringement on the church’s free-exercise rights, then the circle is complete: Charter school laws have become voucher laws.

Justice Sotomayor, when dissenting on Carson, noted that

“in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

Given the previous decisions, an attempt by charter supporters to extend religion to charter schools was probably inevitable.

Charter supporters, including Governor Kevin Sitt and State Superintendent of Public Instruction-elect Ryan Walters praised the decision. Officials of the Catholic Church in Oklahoma, the church likely to go after the taxpayer funding made available by this opinion (there are reports that they have an application for a Catholic virtual charter school ready to go), also praised the decision, as did officials of the American Federation for Children, the pro-privatization group with connections to Betsy DeVos.

The potential complications are many. If the taxpayers of Oklahoma are going to be compelled to fund religious charter schools, which religions will qualify for those dollars, and who will decide?

Oklahoma law designates charters as public schools, but how much discrimination in the name of religious exercise will the state allow? O’Connor argues that charges of discrimination can only be brought against state actors, and “actions taken by charters are unlikely to fit this bill.” So are charter schools public schools or not, and to what degree should taxpayers be forced to fund schools that exist in some sort of fuzzy grey law-free zone?

AG John O’Connor was a Trump nominee for a United States district judge in 2018; the American Bar Association rated him “not qualified,” and his nomination was withdrawn. After Oklahoma’s previous attorney general resigned in May of 2021 over “personal matters,” Governor Stitt appointed O’Connor to the office. O’Connor ran for the office this year and was defeated in the primary, making him a lame duck in the office.

An opinion such a this does not carry the weight of law, and it is possible that the matter will be tested in court. But given the foundation laid by the Supreme Court, it takes no great stretch to reach the conclusion that O’Connor did. They ripped the hole in the wall; he just walked through it.