In April 2025, theSupreme Courtheard arguments about whether the nation’s first religious charter school could open in Oklahoma. The St. Isidore of Seville Catholic Virtual School would have been funded by taxpayer moneybut run by a local archdiocese and diocese. Several justicesappeared open to the idea during questioningleading some analysts to predict a win for the school.
They were proved wrong on May 22, 2025, when the court blocked St. Isidore. Theone-sentence, unsigned orderdid not indicate how individual justices had voted, nor why, simply declaring it was a split 4-4 decision that leaves in place the Oklahoma Supreme Court’s ruling against the school. Justice Amy Coney Barrettrecused herself from the case. Her former employer, the University of Notre Dame, runs a law clinic representing the school’s supporters.
Ever since the proposed school started making headlines, attention hasfocused on religion. Critics warned a decision in the school’s favor could allow government dollars todirectly fund faith-based charter schoolsnationwide. In part, the justices had to decide whether the First Amendment’s prohibition on government establishing religion applies to charter schools.
But the answer to that question is part of an even bigger issue:Are charters really publicin the first place?
The Supreme Court’s order applies only to Oklahoma, so similar cases attempting to open religious charter schools may emerge down the road. As twoprofessors who studyeducation lawwe believe future court decisions could impact more than issues of religion and state, determining what basic rights students and teachers do or don’t have at charter schools.
Dueling arguments
In June 2023, the Oklahoma Statewide Virtual Charter School Board approved St. Isidore’s application to open as an online K-12 school. The following year, however, theOklahoma high courtruled that the proposal was unconstitutional. The justices concluded that charter schools are public under state law, and that the First Amendment’sestablishment clauseforbids public schools from being religious. The court also found that a religious charter school would violateOklahoma’s constitutionwhich specifically forbids public money from benefiting religious organizations.
On appeal, the charter school claimed thatcharter schools are privateand so the U.S. Constitution’s establishment clause does not apply.
Moreover, St. Isidore argued that if charter schools are private, the state’s prohibition on religious charters violates the First Amendment’sfree exercise clausewhich bars the government from limiting “the free exercise” of religion. Previous Supreme Court cases have found that states cannot prevent private religious entities from participating in generally available government programssolely because they are religious.
In other words, while St. Isidore’s critics argued that opening a religious charter school would violate the First Amendment, its supporters claimed the exact opposite: that forbidding religious charter schools would violate the First Amendment.
Are charters public?
The question of whether an institution is public or private turns on a legal concept known as the “state action doctrine.” This principle provides that the government must follow the Constitution, while private entities do not have to. For example, unlike students in public schools, students in private schools do not have the constitutional right to due processfor suspensions and expulsions– procedures to ensure fairness before taking disciplinary action.
Charter schools have some characteristics of both public and private institutions. Like traditional public schools, they aregovernment-funded, free and open to all students. However, like private schools, they arefree from many lawsthat apply to public schools, and they areindependently run.
Because of charters’ hybrid nature,courts have had a hard timedetermining whether they should be considered public for legal purposes. Many charter schools areoverseen by private corporations with privately appointed boardsand it is unclear whether these private entities are state actors. Two federal circuit courts have reached different conclusions.
InCaviness v. Horizon Learning Centera case from 2010, the U.S. Court of Appeals for the 9th Circuit held that an Arizona charter school corporation was not a state actor for employment purposes. Therefore, the board did not have to provide a teacher due process before firing him. The court reasoned that the corporation was a private actor that contracted with the state to provide educational services.
In contrast, the 4th Circuit ruled in 2022 that a North Carolina charter school board was a state actor underthe equal protection clauseof the Fourteenth Amendment. In this case,Peltier v. Charter Day Schoolstudents challenged the dress code requirement that female students wear skirts because they were considered “fragile vessels.”
The court first reasoned that the board was a state actor because North Carolina had delegated its constitutional duty to provide education. The court observed that the charter school’s dress code was an inappropriate sex-based classification, and that school officials engaged in harmful gender stereotyping, violating the equal protection clause.
If the Supreme Court had sided with St. Isidore –as many analysts thought was likely– then all private charter corporations might have been considered nonstate actors for the purposes of religion.
But the stakes are even greater than that. State action involves more than just religion. Indeed, teachers and students in private schools do not have the constitutional rights related to free speech, search and seizure, due process and equal protection. In other words, if charter schools are not considered “state actors,” charter students and teachers may eventually shed constitutional rights “at the schoolhouse gate.”
When courts have held that charter schools are not public in state law, some legislatures have made changesto categorize them as public. For example, California passed a law to clarify that charter school students havethe same due process rightsas traditional public school students aftera court ruled otherwise.
Likewise, we believe states looking to clear up charter schools’ ambiguous state actor status under the Constitution can amend their laws. As we explain in a recentlegal articlea 1995 Supreme Court case involving Amtrak illustrates how this can be done.
Lebron v. National Railroad Passenger Corporationarose when Amtrak rejected a billboard ad for being political. The advertiser sued, arguing that the corporation had violated his First Amendment right to free speech. Since private organizations are not required to protect free speech rights, the case hinged on whether Amtrak qualified as a government agency.
The court ruled in the plaintiff’s favor, reasoning that Amtrak was a government actor because it was created by special law, served important governmental objectives and its board members were appointed by the government.
Courts have applied this ruling in other instances. For example, the 10th Circuit ruled in 2016 that the National Center for Missing and Exploited Childrenwas a governmental agencyand therefore was required to abide by the Fourth Amendment’s protection from unreasonable search and seizure.
Since the Supreme Court did not release any reasoning for its order, we do not know how the justices viewed the “government actor” question in the case from Oklahoma. That said, we believe charter schools fail the test set out in the Amtrak decision. Charter schools do serve the governmental purpose of providing educational choice for students. However, charter school corporations are not created by special law. They also fall short because most have independent boards instead of members who are appointed and removed by government officials.
However, we would argue thatstates can amend their lawsto comply with Lebron’s standard, ensuring that charter schools are public or state actors for constitutional purposes.
