Weekend greetings, CharterFolk.
It’s been a week of momentous news for charter schools.
Of course, the Supreme Court arguments. We’ll get to those in a moment.
But first, there was a significant proposed increase in the federal Charter Schools Program – a major development that, presuming the SCOTUS decision doesn’t derail the whole program, and presuming the Administration couples the increased funding with meaningful regulatory flexibility, has the potential to put the charter school movement back on a growth trajectory similar to what we were seeing a decade ago.
So yes, it’s a big deal.
But its timing was awkward, coming alongside other proposals that would reduce critically needed funding in other parts of the education budget, namely, teacher recruitment and training. That’s a move that cuts more deeply into the growing parts of public education than into its shrinking parts.
And there’s still no resolution on the private activity bond issue, a decision that could affect the borrowing rates of charter schools so significantly that any gains from increased CSP dollars could be far outweighed by additional facilities costs.
So, yes, it’s complicated, CharterFolk.
Like most everything these days.
Including this week’s arguments before the Supreme Court, which proved to be just as complicated.
The Macro-Confirmation We Heard This Week
The general consensus emerging from media coverage is that the Court seems poised to approve the idea of religious charter schools.
So, call me a contrarian.
I heard little that surprised or signaled a shift in one direction or another. Maybe Kavanaugh sounded a little more aligned with the religious liberty crowd than we anticipated or hoped, while Gorsuch seemed a little less so.
But in the aggregate, I would say we heard almost exactly what we were expecting: four conservative justices inclined to support the concept of religious charter schools, and three liberal justices clearly opposed. With Barrett recused, that leaves Roberts in the middle as the swing vote.
So, the most important thing to key in on, in my view, is what the discussion revealed about where the swing vote may be inclined. Nothing is certain here. Roberts surely didn’t tip his cards. But there were some illustrative moments.
The point of this post is to explore a few of them, and to offer a hypothetical about where this could all be headed. Not so much a prediction as an articulation of one possible outcome. One that would satisfy the largest number of parties possible, while keeping legal arguments intact and coherent, something that appears to be one of Roberts’s top goals, if not his absolute top goal.
Starting With Wood Chips – Exactly What We Would Have Wanted
The first thing we should focus on is the Chief Justice’s first question to counsel for St. Isidore. It was one designed to push on whether the Trinity Lutheran case – one about a religious preschool receiving public funding for playground resurfacing – is the right analog for a case about a religious group seeking to run an entire publicly funded school.
Here’s how he phrased it:
CHIEF JUSTICE ROBERTS: You rely heavily… on a number of cases — Trinity Lutheran, Espinoza, Carson. Those involved fairly discrete state involvement. In Trinity Lutheran, they’re going to pave — or, you know, put wood chips on the playground… This does strike me as a much more comprehensive involvement, and I wonder, what case do you think supports the position with respect to that level of involvement?
It was, I believe, exactly where we would have wanted the Chief Justice starting. Not just the subject of the question, but his phrasing of it, contrasting the diminutive involvement of the state in distributing playground wood chips with the expansive involvement in operating an entire school.
Roberts was signaling that he sees this case as meaningfully different from the three precedents petitioners cited. And to my ear, their side wasn’t ready for that.
A Question That Knocked the Petitioners on All Fours
Essentially, Michael McGinley, counsel for St. Isidore, ducked the question.
He insisted that the only relevant issue is that a religious institution was being excluded. What it was being excluded from – its scope or scale – shouldn’t matter, he argued.
As he put it, this case was “on all fours” with Trinity, Espinoza, and Carson.
But in that moment, it was the petitioners’ argument that was truly “on all fours” – knocked to the ground by its own dodge.
Later, Roberts pressed the same point with General Sauer, representing the federal government:
CHIEF JUSTICE ROBERTS: Does the extent of that involvement affect the analysis… whether there’s too much state involvement to view it as a truly private charter school or a truly religious charter school?
Again, no real answer surfaced. Sauer stuck to the script: religious exclusion is the issue, not the nature or scale of the public program from which the institution is being excluded.
That’s the equivalent of saying the state’s role in delivering playground mulch is no different from its role in overseeing the operations of a public school.
It was essentially to say that Roberts’s question didn’t matter.
But of course it does. Otherwise he wouldn’t have asked it.
Repeatedly.
Justice Alito, seeing the same thing, tried to draw Sauer back to the issue:
JUSTICE ALITO: Well, on the issue of intensive state supervision, would you address the… entwinement argument that the Oklahoma Supreme Court thought was persuasive?
Still, no answer came. Sauer said nothing about the program itself, focusing instead solely on the governance status of the institution in question.
Shocking Misrepresentation – and the Audible Gasp
One moment that followed soon after crystallized a dynamic that has been so concerning to many of us ever since this case was granted review:
The continued downplaying – sometimes bordering on outright gaslighting – of how profoundly harmful the Court’s decision could prove to charter schools if it rules that states must allow religious institutions to operate religious charter schools.
Justice Gorsuch wanted clarity:
JUSTICE GORSUCH: If a state wanted to avoid the choice issue here by making charter schools government entities, what would it have to do?
What he got was obfuscation:
GENERAL SAUER: Certainly, one way it could do it is create them directly by statute and have them controlled by directors who are themselves public officials. My understanding is that California’s system is somewhat like that…
I am told, at this moment, an audible gasp was heard in the courtroom.
And well there should have been.
Because the statement was flat-out wrong.
California charter schools are not directly created by statute. They are created through an authorization process. And they are not directly controlled by public officials.
Moreover, California was the second state to adopt a charter law, and its law has served as the model for dozens of others.
So Sauer’s statement wasn’t just inaccurate about California.
It was inaccurate about how nearly every charter school law in the country works.
Which leads me to a sincere hope: that the Justices and their clerks read the many amicus briefs that have been submitted, especially by those with deep knowledge of charter governance.
Because if they do, they’ll see what Sauer tried to obscure:
California’s charter schools, and indeed the vast majority of charter schools in the country, would absolutely not be carved out from devastating impact.
And the answer wouldn’t be just some simple tweak.
If the Court rules that all states must permit religious entities to run religious programs under their charter school statutes, it would require wholesale statutory, regulatory, and governance overhauls across the nation.
So, yes, do what you must, Justices.
But please do it from an informed understanding of what the charter movement actually is.
The Grammar of Governance
Then came a line that brought levity to the courtroom.
But also deep resonance to the matters before the court.
As lawyers described Oklahoma’s charter regulations, including curriculum mandates so specific they include Reagan’s “Tear Down This Wall” speech and the teaching of dangling modifiers in ninth-grade English, Justice Gorsuch cracked:
JUSTICE GORSUCH: I’m delighted to hear they’re still teaching dangling modifiers in Oklahoma’s schools.
Yes, it got a laugh.
But it also highlighted the moment’s deeper truth:
Far more than modifiers are dangling right now.
The entire charter school movement is dangling, above a legal precipice.
One that, like a dangling modifier itself, hinges upon an ambiguity about whether the stated clause actually pertains to the purported subject.
Because if charter schools are public schools, certain constitutional clauses apply: they must serve all students, operate without religious indoctrination, and comply with nondiscrimination rules, and many others.
But if they’re not, what happens to those clauses?
The Charter School World Left a Question Dangling Too
In general, I would laud the efforts of the legal team who made the argument defending the charter school movement from a new requirement that states allow religious entities to operate religious schools under their statute. As I would defend the overall legal and communications strategy that has been pursued over the last few months on this matter.
We’ve never resorted to outright fabrications as we saw the other side do this week. Nor did we simply revert to an “all-fours” posture to outright dodge a subject.
But I would also say that, at a key moment in the argument Wednesday, we left a question unanswered, which left a key subject dangling.
It came around the 1:37 mark of oral argument, when Chief Justice Roberts directed the discussion back to what should be the test for determining whether charter schools are state actors.
To be fair to Gregory Garre, this portion of the argument was rapid-fire. He was interrupted often. And clearly he was trying to get a word in edgewise.
But in the end, across the totality of the two-hour discussion, somehow charter schools never got the chance to offer a crisp answer to one of the questions that matters most.
Which is:
Do charter schools pass the five-prong test from Lebron v. Amtrak?
This is where it gets incredibly high risk for us. Because when boxed into a simple either/or construct – which religious liberty advocates want to frame as: Are we exactly like Amtrak?
The truth is that charter schools weren’t designed to be like our national railroad.
Amtrak was created to serve as a centrally controlled, federally operated provider of national passenger rail service. It makes sense that its board would be majority appointed by the federal government and that it would be created by statute.
Charter schools, by contrast, were designed to be decentralized, independently operated public schools within their states’ systems of public education. Their purpose wasn’t to replicate the system but to challenge and improve it. Requiring that they conform to Amtrak’s structure – a statutory creation and direct government board control – would have undermined their very reason for existing. Likewise, requiring it now would jeopardize thousands of schools and millions of students.
But none of this means charter schools fall short of the Lebron standard.
In fact, in key respects, the accountability framework charter schools operate under is even more robust than the governance structure applied to Amtrak. While Amtrak is subject to federal oversight and board appointments, it does not face the continuous, performance-based scrutiny that charter schools do. Charter schools must navigate multi-tiered systems of public oversight – authorization, reauthorization, independent fiscal audits, compliance with academic standards, open meetings requirements, public admissions policies, and renewal thresholds based on measurable outcomes. These mechanisms ensure that charter schools remain embedded in the public system, accountable to public standards and outcomes, even without mirroring the traditional governance structure of legacy public institutions.
These mechanisms don’t just satisfy the spirit of Lebron — they arguably exceed it.
It reflects something I say again and again about the charter movement more broadly:
We don’t aspire merely to be public schools.
We aspire to be greatly more public than what public education has too often become in America today.
That framework reflects the deeper mission of charter schools:
To stimulate change in the broader public system, not to replicate it or be governed by it.
So yes, we’re public.
Even more public.
And public in our own way.
But in a way that builds upon — and in many respects improves upon — how other government-created entities like Amtrak demonstrate their publicness.
And if the Court affirms that this model fulfills the constitutional standard – distinct in form, aligned in purpose – we’ll not only withstand the moment.
We’ll emerge from it stronger.
A Possible Solution – An End to the Dangling. A New Footing That’s Truly “On All Fours”
So with that acknowledged, let me close by venturing something slightly speculative here.
Not so much a prediction.
But an articulation of a possible landing spot that feels, dare I say, “on all fours:”
A framework that could satisfy the four demands before the court.
- Preserve precedent (Trinity, Espinoza, Carson)
- Provide relief to religious liberty advocates when exclusion is based on status alone
- Maintain the constitutional understanding that public education is nonsectarian
- Protect charter school autonomy and viability under existing governance structures
Here’s what that might look like:
Roberts affirms Oklahoma’s decision, holding that:
- Charter schools are public schools by statute, subject to public funding, curricular oversight, and accountability.
- States may require religious neutrality in their public education systems — including in charter schools.
- A state may deny an application to operate a charter school that proposes sectarian instruction, consistent with the Free Exercise and Establishment Clauses.
But he also affirms that:
- States may not categorically exclude religious organizations from applying to operate charter schools just because they are religious, if those organizations are willing to operate within neutral, nonsectarian guidelines.
- A blanket ban based solely on religious identity would violate the Trinity line of cases.
In other words:
- Religious instruction? The state can say no.
- Religious identity alone? The state cannot say no.
Does it please all parties completely?
Obviously not.
The religious liberty advocates will decry the limits imposed on religious entities that would seek to operate charter schools.
But those limits would only apply within the context of delivering public education, not to the full scope of what a religious organization might do. Not even what it might offer students and families voluntarily outside the official school day, before or after school hours.
Meanwhile, charter school advocates will rightly worry that a ruling permitting religious institutions into the charter school space might empower opponents wanting to constrain or outright unwind our progress.
But in comparison to a sweeping mandate to allow sectarian instruction in public schools?
This is an outcome we could live with.
And build from.
And from that footing – in most states, with the right advocacy – we can come through intact.
Perhaps even stronger.
In the end, what we would have is an outcome that brings an end to the ambiguity that hangs over the charter school movement right now.
Which is exactly what we should want from any Supreme Court decision.
One that would achieve our top collective objective:
Preserving the charter school movement’s ability to continue its transformative work to improve public education in our country.
In short, a decision that puts an end to the dangling.
And plants us firmly on all fours.
Sturdier than we’ve ever been.
And ready to take on even more in the decades to come.