Weekend greetings, CharterFolk.
This Wednesday, the U.S. Supreme Court will hear the religious charter schools case.
It’s a moment unlike any other in the charter school movement’s nearly 35-year history:
A moment when the eyes of the nation, and the future of public education itself, are focused squarely on us.
And it’s a moment that demands that we be crisp in our analysis.
I’m not here to cry that the sky is falling.
Nor am I here to shy away from saying the hard things that need to be said.
As I’ve pointed out before, my entry point on this case has never been about religious liberty or separation of church and state.
I remain agnostic on the concept of public funding for religious schools, and I recommend our world strike a similar posture.
Because it’s from that vantage point that we can more clearly recognize, and more persuasively argue, the deeper stakes: the profound, lasting harm that could be done to the charter school movement.
And if the Supreme Court gets this case wrong, it could do lasting, even devastating, damage to the only real, proven public education reform movement our country has seen in generations.
I say that as someone who’s spent years in the advocacy trenches, much of it in California, where some of the nation’s strongest and most sophisticated opponents of charter schools have worked relentlessly to undermine what we’ve built. I know how quickly a shift in advocacy conditions can open up new lines of attack – lines that can endanger decades of hard-fought progress.
One story from those trenches crystallizes how quickly things can go south if this case is decided poorly.
It’s the story of the only time in my career I was ever kicked out of a legislator’s office.
But first, some level setting.
Neither Chicken Little, Nor Plain Chicken
The whole discussion requires proper positioning on what I call the “chicken spectrum.”
We must avoid both drifting too far toward the Chicken Little extreme – acting as if the sky is certainly falling …
And drifting too far toward the Plain Chicken side – being too afraid to speak clearly about the real risks this case poses to everything thousands of us have been building for nearly four decades.
I’ll attempt to do neither.
Instead, I advise extreme caution.
If the Court chooses to change anything about how charter schools are treated under the Constitution, the standard must be simple:
Will this harm charter schools’ ability to continue driving positive change in public education?
Full stop.
AEI, Nicole Garnett, and the Emerging Debate
Last week, I shared a whip-around roundup that included a fascinating AEI-hosted debate on the merits of the case.
In that debate, the team arguing against religious charter schools won decisively, drawing many more audience members to their side than those arguing in favor.
This mirrors many conversations I’ve heard lately.
Yes, there are some who are simply not persuadable on this topic.
But generally, when people hear the arguments in greater detail, they become more concerned about a decision that would force states to allow religious entities to operate charter schools.
The concern tends to rise when people recognize two things:
First, that the “either/or” framing pushed by religious liberty advocates is a false dichotomy.
Second, that a poorly crafted decision could pose real, profound threats to charter schools across blue states – and could also disrupt the funding streams that support charter schools in both red and blue states.
Notre Dame Professor Nicole Garnett – one of the architects of the religious liberty argument – has been explicit about the either/or framing and her dismissal of blue-state risks.
She wrote this week in the Wall Street Journal:
Either charter schools are government actors or they aren’t. If they are, the freedom they have long enjoyed, and the educational pluralism they are designed to foster, is in peril. If they aren’t, the court must confront the reality that only one kind of educational pluralism is off the table in Oklahoma’s charter school program: religious pluralism.
In her interview with Rick Hess at AEI, Garnett similarly waved away the idea that charter schools could be endangered in blue states:
I’m dubious about the claim that state regulators would actually throw millions of children out of schools that serve them well.
Nicole Garnett may be right to be dubious that millions of kids will be thrown out of charter schools overnight.
But the real question is whether she underestimates the ability of charter school opponents to achieve the same end through more sophisticated means, especially if provided with a new angle of attack against our movement.
And that, CharterFolk, is where I’m not dubious at all.
A Story from the Trenches: The Day I Was Kicked Out of an Office
It was the fall of 2015.
I entered the Capitol building in Sacramento.
It was supposed to be a meeting to bury the hatchet.
Months earlier, Assemblymember Tony Thurmond – in his first year in office and deeply aligned with CTA – had voted for a bill so dangerous to charter schools that within days, hundreds of parents and educators staged a protest at his district office.
Since then, communication had been nonexistent.
Now, our lobbyists and his staff thought it was time to patch things up.
I didn’t object. I’d been in similar situations many times before.
We walked into his office. A few of his staff were waiting. Tony was the last to arrive, a good ten minutes late.
I tried to start with some pleasantries. He wasn’t having it.
Before any conversation could happen, he said he needed an answer to one question:
Was there any scenario where what happened at his district office could ever happen again?
I tried to keep it positive, saying I wasn’t there to fight or relitigate the past. I hoped we could focus on the future.
He shook it off and repeated his question.
So I told him the truth.
I reminded him of the calls we had after his election and his appointment to the Education Committee — something CTA had lobbied for, knowing how reliably he would vote with them.
During those calls, I had told him I understood he wouldn’t always be with us, and that I wouldn’t give him grief every time he voted for something marginally damaging to our cause.
But when a bill of existential threat came up, I would let him know, and I would expect him to be reasonable — to not just transparently align with those who wanted to do away with our movement altogether.
Which is exactly what I had done on the vote that occurred before the protest.
And yet, despite my repeated calls — despite my spelling out exactly why this bill wasn’t just another thousand-cut bill, but instead a stake driven directly at the heart of the charter movement — despite all that, he voted for it anyway.
So I told him.
If he voted in favor of a similar existential threat again in the future, yeah, he could expect the same treatment from us.
He didn’t hesitate. He stood up and told me there was no point in meeting. And he asked me to leave.
Which I did.
To this day, it remains the only time I’ve ever been kicked out of an office.
A Blueprint for What Comes Next: The PERS Crisis and the CTA Strategy
The bill Tony Thurmond supported wasn’t just any bill.
It was the culmination of a calculated, sophisticated strategy by CTA and its allies – the exact kind of strategy we will see play out across blue states if the Supreme Court rules carelessly.
Here’s what happened.
Using their influence over the California Public Employees’ Retirement System (PERS), opponents of charter schools convinced senior leaders to question whether charter employees were even eligible to participate in public retirement systems.
They did this despite the fact that charter school employees had been participating in PERS without issue for decades.
PERS leaders, purporting to be nervous about jeopardizing the fund’s tax status, decided that no new charter schools could enroll their classified employees unless and until the U.S. Treasury issued a formal letter affirming it was allowed.
Eventually, we got that letter, but it took the better part of a year.
In the meantime, CTA brought forward their “solution.”
The bill Tony supported.
A bill that claimed to protect charter employees’ retirement rights by requiring that charter school boards be brought under direct district control.
School districts would be given the authority to appoint the majority of every charter school’s board members.
Imagine it:
Every charter school in Los Angeles with a board majority appointed by the LAUSD Board.
It would have ended charter school independence in California overnight.
It’s the same “solution” proposed in the Drake Law Review brief I shared recently – requiring charter schools to pass the “Amtrak” test, meaning government-appointed board majorities.
And it is exactly the kind of railroading we can expect charter opponents will attempt to foist upon us in state capitols across the land if this case isn’t decided with extreme care.
A Delicate Balance: Decades of Smart, Hard-Won Jurisprudence at Risk
This isn’t a new fight.
For over three decades, courts across the country have wrestled with the unique governance structure of charter schools.
Slowly, a consensus has emerged:
Charter schools exist in a governance purgatory – public in all the ways needed to ensure that we serve all students and are part of the system, yet autonomous enough to innovate and improve where traditional schools have failed.
A purgatory that resists “either/or” thinking – and has given us the hybrid public/private status that has allowed charter schools to be successful in ways that other public education providers, sadly, have not.
This delicate, hard-won status is no accident.
It is intention.
It is the product of years of legal battles, some of the best legal thinking that has gone into public education in our lifetimes – a body of jurisprudence that represents a multi-generational breakthrough, one that has put all of public education on a fundamentally different, and yes, better trajectory.
It is an accomplishment that no Supreme Court – or any policymaking body in our country – should want to compromise in any way.
To unwind that jurisprudence now would rip out the very foundation that has allowed charter schools to succeed where so many other reform efforts have failed.
Why It Matters: The Stakes for Public Education Itself
If the Court rules recklessly …
If it approaches this case with either/or thinking …
If it deems that the only way a state can implement a nonsectarian charter school program is by forcing every charter school in the country to adopt a governance model patterned after our underperforming national railroad …
If it ignores the real risks charter schools face …
… the consequences could ripple far beyond our movement.
District-run public schools are struggling. Public education itself is struggling.
As Terry Ryan wrote earlier this week …
… many traditional public schools have become simply unreformable.
Nearly half a century ago, policy innovators like Ted Kolderie, Joe Nathan, and Ember Reichgott Junge recognized this – and created a new idea:
Autonomous, nonsectarian entities could be introduced into public education to create real reform.
A decision not carefully crafted now could render that entire vision a mistake.
It could declare that only directly run government schools – no matter how broken they may be – are the only ones that are permissible.
Not just a one-size-fits-all.
But a broken size.
Imposed on all.
One that could send us hurtling toward the very future we dread:
A future without meaningful public education at all.
Conclusion: A Call for Caution
So, CharterFolk, don’t call me Chicken Little.
I’m not here to predict catastrophe.
But don’t call me Plain Chicken either.
Because if this case is decided carelessly, it could have devastating consequences for public education in America.
There are countless ways the Court could handle this responsibly.
Either by simply leaving things as they are – with charter schools remaining the nonsectarian option they were always intended to be – while religious options continue to expand organically through ESAs and voucher programs.
Or, if the Court feels compelled to act, by crafting a surgical, narrowly tailored ruling that doesn’t undermine the charter movement’s future.
Nothing is more important right now than protecting the progress we’ve made.
Because protecting charter schools is protecting the future of public education itself.