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On April 30, the Supreme Court heard oral arguments in a case that could compel states with charter school laws to authorize religious charters. Reporters from the , the , the and 麻豆精品 said the court鈥檚 conservative majority bloc appeared 鈥渙pen to鈥� religious charter schools.

Such a ruling would be bad for the country and deeply disruptive. It could upend the charter school sector, raising questions about the constitutionality of the federal charter school law and the laws in 47 states, all of which require charters to be nonsectarian. It could lead to blue states cutting back on charter schools and red states seeing a flood of religious charters open up, which would further balkanize an already divided country. 

Is there any hope? The best outcome would be if one of the conservative justices 鈥� most likely Chief Justice John Roberts 鈥� ended up siding with the liberal justices and rejecting a requirement that authorizers must permit religious charter schools. The second-best outcome would be if policymakers took creative steps (as I outline below) to comply with an adverse Supreme Court ruling while preserving social cohesion and retaining for charter schools the flexibility they need to flourish.

I have a modest hope that Roberts鈥檚 vote may be in play. If he votes with the court鈥檚 three liberal justices, a 4-4 decision would let stand the Oklahoma Supreme Court鈥檚 decision opposing religious charters. (Justice Amy Coney Barrett is recused in the case.)  

In the oral arguments, the justices on the central question in the case: Are charters public or private? If they are public, then the Establishment Clause of the First Amendment prohibits them from being religious. If they are private, by contrast, the court鈥檚 interpretations of the First Amendment鈥檚 Free Exercise Clause that government cannot discriminate against religious schools would apply. 

Roberts asked tough questions of both sides, but the most hopeful moment came when he noted that the state has 鈥渁 much more comprehensive involvement鈥� in charter schools than in private schools, which could tilt his thinking against religious charters.

Greg Garre, who served as solicitor general under former President George W. Bush, made a powerful case that charter schools are public. He noted that private schools differ from charter schools in eight respects: 

• “Private schools can open without any state approval.”
  
• 鈥淭here are no requirements or supervision of curriculum for private schools.鈥�
  
• Private schools “can charge tuition.”
  
• Private schools 鈥渃an restrict admissions.鈥�
  
• Private schools are 鈥渘ot subject to general state assessment tests.鈥�
  
• Private schools are 鈥渘ot subject to nearly the reporting requirements or oversight as public schools鈥�
  
• Private schools 鈥渘ot subject to state rules regarding student discipline, civil rights [and] health鈥�
  
• “There鈥檚 no process for closing鈥� private schools 鈥渟hort of consumer fraud.鈥�

If Roberts nevertheless decides, along with other conservatives, that charter schools are private schools, and states are compelled to authorize religious charters, that would set off a number of consequences.

First, blue states are likely to rebel. As Justice Neil Gorsuch noted, some states may begin 鈥渋mposing more requirements on charter schools,鈥� essentially making them more 鈥減ublic.鈥� For a sector that thrives on independence, this could constitute a 鈥渂oomerang effect.鈥�

Second, red states are likely to see a number of religious private schools convert to charter status. As Justice Elena Kagan noted, 鈥淭here鈥檚 a big incentive to operating charter schools, since everything is funded for you.鈥� She expected to see 鈥渁 line out the door鈥� of applicants.

Third, there is likely to be more litigation. As the justices asked in the oral argument: If charters are deemed private schools, then does that mean a conservative Christian charter school could, as a matter of religious liberty, bar the admissions of Jewish, Muslim and gay students? Could the same school discriminate against gay or non-Christian faculty members? Could it reject state standards requiring that it teach evolution?  

I found this all very depressing, but there was one compelling moment in the oral argument that gave me some hope and sparked an idea about how state charter school boards could minimize the damage of a negative Supreme Court decision: focus on the question of a school鈥檚 mission.

At one point during the argument, Justices Sonia Sotomayor and Ketanji Brown Jackson offered a hypothetical question. If the government wanted to commission a mural and a religious painter wanted to include religious images, could the government reject that approach? Yes, said James Campbell, the attorney for the charter school board, because in that case, 鈥渢he government is trying to speak its own message on its own buildings.鈥� He claimed that the charter school law in Oklahoma, by contrast, gives 鈥渂road autonomy to the schools to come up with their own mission.鈥� 

Under that logic, what if charter school laws were amended to say that applicant schools were free to identify a number of missions, but that they had to identify as their ultimate mission teaching the liberal democratic values that bind together Americans of all backgrounds? That鈥檚 already a central premise the constitutions and laws of many states. As Albert Shanker, who first brought the idea of public charter schools to the national stage, argued, the primary mission of public education is to teach these values, which is bound up in “.”

Teaching liberal democratic values is probably consistent with the approach of most religious charter schools, but few are likely to agree that this is their most important mission.聽The Oklahoma school at the center of the Supreme Court case, St. Isadore of Seville Catholic Virtual School, says its 鈥渦ltimate goal鈥� is 鈥渆ternal salvation.鈥� For many religious leaders, saying that promoting liberal democracy is their school鈥檚 primary mission would constitute blasphemy. When former President Joe Biden called the ideals in America’s founding documents 鈥渟acred,鈥� a Catholic priest objected in the pages of the Wall Street Journal, saying, “.”

The test for charter school applicants wouldn鈥檛 be religious; it would be one of mission. Not every religious school would fail the test, and not every secular school would pass it. If the government is entitled to 鈥渟peak its own message on its own building,鈥� why can鈥檛 a state ask the schools it funds to advance as their central message the preservation of liberal democracy?

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