Forty-six states and the District of Columbia permit charter schools to open. Of these jurisdictions, 33 states and the District of Columbia allow for the creation of independently governed and operated charter schools, entities that the Supreme Court may soon declare to be non-state actors and thus not bound by constitutional obligations. These states are now vulnerable to a one-two punch. First, the Supreme Court is likely to rule that denying institutions the opportunity to open religious charter schools amounts to unconstitutional anti-religious discrimination under the First Amendment’s Free Exercise Clause. Second, the same clause has been invoked to exempt such religious school operators from basic laws governing public schools—including anti-discrimination statutes. This exemption could extend to open-meetings requirements, conflict-of-interest rules, due process protections, accountability frameworks, and transparency mandates—fundamental safeguards against fraud, mismanagement, and mistreatment.

State legislators who are troubled by public dollars flowing to schools that are exempt from the anti-discrimination and accountability standards required of traditional public schools have the power—and the responsibility—to act before these changes take hold. While the Supreme Court might prevent lawmakers from opposing religious charters because of religious practices such as prayer and devotional Bible reading that may occur during the school day, they can oppose religious charters because of that second punch: the very real risk that religious charters will use free-exercise arguments to avoid compliance with laws concerning anti-discrimination and good governance. That is, lawmakers can step up to protect basic “publicness” elements of charter schools, maintaining their charter-school sectors by changing their governance structures.

Last year, in Oklahoma State Virtual Charter School Board v. Drummond, the U.S. Supreme Court deadlocked 4-4 (with Justice Barrett having recused herself) and thus fell just short of ruling that Oklahoma authorize the nation’s first taxpayer-funded religious charter school. This (non)decision left intact a state supreme court ruling finding the school unconstitutional. But given that Justice Barrett is unlikely to recuse herself again, and given her record on similar free-exercise-clause cases, the Court is likely to resolve this question in favor of religious charter schools at the next opportunity—probably within the next two to three years, since new cases are already making their way through the federal court system. In fact, Florida’s Attorney General has already greenlighted religious charter schools in his state. 

The consequences for public education, taxpayer accountability, and civil rights protections of this new era will be profound. This brief explains those dangers and proposes a constitutional safe harbor for states seeking to preserve the public character of their charter schools. The most effective path forward is to convert states’ “independent charter” laws into “district-governed charter” laws. That is, laws would shift from requiring independently governed, nonprofit-operated charter schools to requiring charter schools to be created, staffed, and governed by their authorizing school districts or another government entity.

Several states have already adopted this more protective framework. Alaska, Kansas, Maryland, and Virginia have structured all of their charter schools to be governed by local school districts. In these states, no independent nonprofit corporation interposes itself as an ultimate governance entity between the authorizer and the school. Additional states, including California, Texas, and Wisconsin, have both independent and district-governed charter schools. Because district-governed charter schools are, when properly created and managed, unambiguously governmental entities, they are fully subject to constitutional requirements and civil rights laws. Under the First Amendment’s Establishment Clause, governmental entities such as district-governed charters cannot be operated by a religious institution seeking faith-based exemptions. 

A shift from independent charters to district-governed charters would bring meaningful governance and educational benefits. District-governed charters, subject to districtwide financial controls, procurement rules and professional auditing, would substantially reduce financial risk without sacrificing educational quality. When different states’ charter school performance was ranked using the National Assessment of Educational Progress, the state that led all others was Alaska, where all charters are governed by local school districts.

Our recommendation is that states with independent charter schools amend their charter-school law to shift to district governance. We outline a detailed set of provisions for such a state statute, including:

• Authorizers must be governmental entities subject to voter accountability or oversight by a democratically elected body; 
• Authorizers must maintain governance authority over charter schools, including approval and control over each charter’s budgets, fiscal policies, staffing plans, and core school policies; 
• All charter-school staff and leaders must be employees of the authorizer or a designated governmental entity;
• Charter schools must fully comply with the state constitution and laws governing public schools, including open meetings, public records, ethics and conflicts, student rights, anti-discrimination and civil rights, due process, special education, procurement, and fiscal controls; and
• A transition pathway by which existing independent charters may convert within a defined period.