Secretary of Education Betsy DeVos recently announced that religious organizations may apply for federal money to open charter schools through the Expanding Opportunity Through Quality Charter Schools Program (CSP). She said, “the Department of Education will no longer discriminate and will allow for and welcome religiously affiliated applicants for the CSP.”

She made the announcement to applause on October 26, 2020, at a forum in Louisville, Kentucky. The forum was organized by the Bluegrass Institute for Public Policy Solutions (BIPPS) and the Kentucky Pastors in Action Coalition (K-PAC) to discuss education reform, including school choice, in response to the low achievement rates in Jefferson County Public Schools and the increasing achievement gaps between black and white students within the largest school district in Kentucky.

The Elementary and Secondary Education Act defines “charter school” as a “public school” that is “exempt from significant State or local rules that inhibit the flexible operation and management of public schools,” but that is nonetheless “operated under public supervision and direction.” 20 U.S.C. § 7221i(2)(A) and (B). The ESEA also states no charter school may be “affiliated” with any “sectarian school or religious institution.” 20 U.S.C. § 7221i(2)(E).

In the wake of Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Secretary requested the U.S. Department of Justice’s Office of Legal Counsel (OLC) to examine 20 U.S.C. § 7221i(2)(E) for its constitutionality. In Trinity Lutheran, the Supreme Court held that “the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” OLC opined that 20 U.S.C. § 7221i(2)(E)’s prohibition against charter schools affiliating with a “sectarian school or religious institution” is unconstitutional pursuant to Trinity Lutheran, explaining that “forbidding charter schools under the program from affiliating with religious organizations discriminates on the basis of religious status.” During the October Kentucky event, the Secretary also cited the recent Supreme Court decision in Espinoza v. Montana Department of Revenue, where Chief Justice Roberts stated in the majority opinion that “we have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

It is one thing for the CSP to require the curriculum of a charter school to be nonsectarian. It is something else entirely to discriminate against an institution that wants to establish a charter school using CSP funds simply because of its religious status. The Federal Constitution does not permit such a violation of religious freedom, and charter schools may affiliate with churches, synagogues, mosques, and other religious institutions that wish to set up and operate charter schools under the CSP. As the Secretary highlighted in her remarks, “according to a recent RealClear survey, three out of four families with children in public schools want their education dollars to follow their children to wherever they go to learn.” For America’s students and their families, removing unconstitutional barriers is a step in the right direction.

By: Jacqueline Gonzalez, Director of Outreach