BOULDER, CO (May 28, 2026) — Forty-two states plus the District of Columbia may soon confront sweeping changes to their charter-school systems, as the U.S. Supreme Court appears likely to greenlight religious charter schools and to then shield those religious schools from anti-discrimination and other good-governance laws that apply to public schools.

In a new policy brief, Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era, authors Kevin G. Welner (University of Colorado Boulder), Carol C. Burris (Network for Public Education), and Preston C. Green III (University of Connecticut) warn that, without proactive legislative action, this radical transformation of states’ charter sectors could be fully imposed within two years.

The brief describes an upcoming “one-two punch” from the Supreme Court. First, the Court will hear a case next term that is likely to find a free-exercise right for taxpayer-funded private religious schools to engage in faith-based discrimination. Arguments for faith-based exemptions from accountability and transparency rules will follow. Second, the Court is likely to hear a case in the following term, resulting in a decision that prohibits states from excluding religious charter schools—again grounded in the First Amendment’s Free Exercise Clause. 

This charter-school trap, however, is set only for states that structure their laws to place private, independent organizations in the charter-governance role. As the brief explains, if governmental entities retain that governance role, the Court’s free-exercise reasoning does not apply. Instead, the applicable law is the long-standing Establishment Clause bar on religious public schools.

Forty-six states and the District of Columbia permit charter schools. Of these, 42 allow or require independently governed charter schools—the type that the Supreme Court’s ruling might drastically transform. However, nine of those 42 states also allow charter schools to be governed by local school districts, and four states—Alaska, Kansas, Maryland, and Virginia—place all their charters under the governance of publicly elected school boards. This brief argues that these four are already protected from the Supreme Court’s likely decisions.

“State legislators can head the Court’s radical change by strengthening the fundamental publicness of their charter schools,” Welner explains. “Legislators can protect the charter-school sectors against the imposed transformation by changing how they are governed.”

According to Green, the solution is straightforward: “All charter schools should be created, staffed, and governed by public entities such as local school districts, ensuring they remain fully subject to constitutional and civil rights protections.”

The authors include key provisions for a state statute to guide this shift, offering a clear path for preserving accountability, transparency, and civil rights in an evolving legal landscape.

Bringing charter schools into this legal safe harbor will, according to Burris, have other advantages as well:

District-governed charters also offer practical advantages, including stronger financial oversight and reduced risk of mismanagement and fraud. Communities, via their elected school boards, will have a voice in whether and how to build charter schools that serve the community’s best interests.

Find Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era, by Kevin G. Welner, Carol C. Burris, and Preston C. Green III, at: 
https://nepc.colorado.edu/publication/religious-charters