Document Type
Article
Publication Title
Harvard Law & Policy Review
Publication Date
2024
Abstract
From 2017 to 2022, the Supreme Court strengthened its First Amendment Free Exercise jurisprudence by deciding that states can provide aid to religious educational institutions through general benefit programs. Six months after the Court’s most recent religious aid case, Carson v. Makin, Oklahoma’s Attorney General stated that he would no longer enforce the nonsectarian provision of the state’s public charter statute because it was unconstitutional under Carson and its progeny. That opinion initiated the application and 2023 approval of the first religious charter school, St. Isidore of Seville Catholic Virtual School by Oklahoma’s Virtual Schoolboard. Immediately, state litigation ensued, and in 2024 the Oklahoma Supreme Court held that the St. Isidore violated state and federal requirements of separation between church and state. The school plans to appeal the decision to the United States Supreme Court.
In preparation for that appeal, this Article examines the legal and policy questions presented by religious charter schools. It argues that Carson does not apply to charter schools as public schools funded directly by the state. Further, the Article argues that even if Carson did apply, the Court should be hesitant to extend constitutionality to religious charter schools because of religious schools’ unique ability to discriminate against LGBTQ+ and disabled students via admissions, employment, and curriculum. Thus, religious charter schools, as the next step in the Court’s religious aid jurisprudence, will have serious implications for not only the Establishment Clause but also for constitutional commitments to equality.
Recommended Citation
Vania Blaiklock, A License to Discriminate: The Risky Next Step of Religious Charter Schools, 19 Harv. L. & Pol'y Rev. 237 (2024).
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