On December 1, Oklahoma attorney general John O’Connor issued an opinion letter concluding that the state’s laws prohibiting religious charter schools are unconstitutional. The prohibitions, he found, run afoul of the Supreme Court’s recent decision in Carson v. Makin , which held that Maine’s exclusion of religious schools from a tuition-assistance program for students living in rural school districts violated the Constitution’s Free Exercise Clause. O’Connor is right, and other states should follow Oklahoma’s lead. Forty-four states have charter school laws. All, like Oklahoma, have required charter schools to be secular and most, like Oklahoma, also prohibit them from being operated by or affiliated with religious institutions. The constitutionality of these restrictions was at issue even before Carson . I have myself been beating the religious-charter-school drum loudly, especially since the Court’s decision in Espinoza v. Montana two years ago, which clarified that while “a State need not subsidize private education . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” In dissent, Justice Stephen Breyer asked, “What about charter schools?” The answer turns on a complex legal concept unrelated to religion called the “state action doctrine,” which […]
