As Notre Dame Law Professor and Supreme Court scholar Richard Garnett observed, "The do-nothing denouement in this particular round of litigation does not preclude other courts, in other cases, from vindicating the no-discrimination rule and permitting religious schools to participate in charter-school programs.”

Garnett is right. The twin religion clauses of the First Amendment — the Free Exercise Clause and the Establishment Clause — permit certification of religious schools like St. Isidore’s as charter schools.

Take, for example, the court’s recent decisions involving the Free Exercise guarantee and school choice initiatives. When the court struck down the "No-Aid” provision in Montana’s state constitution that excluded religious schools and families from a publicly funded scholarship program for students attending private schools, Chief Justice John Roberts reaffirmed the Free Exercise Clause’s demand for fairness.

"A state need not subsidize private education,” he observed. "But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Similarly, in Carson v. Makin, the court found that Maine violated the Constitution when it excluded religious schools from participating in a voucher program for rural students. Roberts, again writing for the court, explained that "the State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
No clause against faith

Allowing religious schools such as St. Isidore’s to participate in a state’s charter school program is merely a natural application of this principle of fairness. But what about the Establishment Clause?

Oklahoma Attorney General Gentner Drummond argued that certifying St. Isidore’s as a charter school would violate the Establishment Clause.

His argument has some appeal, particularly for secularists who want public schools to have a virtual monopoly over America’s educational system. Granted, the Supreme Court has repeatedly held that the Establishment Clause prohibits public schools from providing religious instruction. Private schools, by contrast, are free to do so. Charter schools receive public funding, but they are privately established and controlled schools with minimal regulatory oversight by the government.

Consequently, charter schools are not state actors. And because they are not state actors, a charter school’s endorsement of any particular religion does not constitute a violation of the Establishment Clause.

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