The First Religious Charter School:  A Viable Option for School Choice or Prohibited Under the State Action Doctrine and Religion Clauses?

April 1, 2024

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach.  This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two.  One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to all.  The Court’s efforts, in part, eventually yielded a rise in alternative education opportunities, including charter schools and, more recently, religious charter schools.

This Note examines whether religious charter schools are private or state actors under the state action doctrine and, consequently, whether they are prohibited under the Religion Clauses.  This Note argues that charter schools, generally, cannot be categorized as either private or public actors; rather, particular practices and characteristics of a charter school can be deemed state action such that the school must comply with the Religion Clauses’ demands.  This Note analyzes these instances, focusing on the Court’s jurisprudence regarding religious curricula, teacher-led prayer, government funding, and religious symbols.  Ultimately, this Note concludes that the most identifying feature of a religious charter school—its religious curriculum—cannot be considered state action and, thus, religious charter schools are permissible and beneficial additions to school choice.

April 2024

No. 5