As the U.S. Supreme Court mulls whether to provide a pathway for religious charter schools, UConn’s Preston C. Green III says states need to prepare for the almost inevitable probability they will be required to allow such education.

“Reality is my friend, I like to say, and I think one has to accept the reality of the situation,” says Green, the John and Maria Neag Professor of Urban Education in UConn’s Neag School of Education. “Reading the case law, that’s just where the Supreme Court is – not only would certain types of schools be permitted, but also states could not prevent charters from operating because they are religious.”

Much of Green’s recent research has been on ways to classify charter schools as government entities, using things like a 1995 lawsuit involving the National Railroad Passenger Corp. to argue that charter schools are government offshoots and therefore any religious encroachment violates the separation of church and state.

But within the next couple of years, he says he expects the high court to tell states and the communities within them that independently operated charter schools have the right to offer religious education, even if they receive taxpayer dollars to fund their operation.

Green’s latest policy brief says that if it comes to pass, the counter is simple: Put charter school governance under the local school district.

“If they’re not controlled by the government, then religious entities will be allowed to participate in them,” he says. “The reality of the situation is that if you want charter schools to be in the public realm, you’re going to have to take approaches that will enable the court to say that they are governed by the public.”

The reality of the situation is that if you want charter schools to be in the public realm, you’re going to have to take approaches that will enable the court to say that they are governed by the public. — Preston C. Green III, John and Maria Neag Professor of Urban Education in UConn’s Neag School of Education

In “Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era,” published in May by the National Education Policy Center and co-authored with Kevin G. Welner from the University of Colorado Boulder and Carol C. Burris from the Network for Public Education, Green speculates the court will determine that denying a religious charter school is tantamount to discrimination under the First Amendment.

States like Alaska, Kansas, Maryland, and Virginia already have structured their charter schools to be governed by local school districts, and California, Texas, and Wisconsin have a mix of charters governed independently and by public schools, the study says.

While explicitly making charters part of the local school system isn’t such a far-fetched idea, getting buy-in could be difficult, especially from parents who may have chosen to send their children to a charter school just to get away from the public option, Green concedes.

“My response to this is that many charter and private schools do not have to provide constitutional rights for their students. And I think a lot of people don’t realize what they may be losing when they take their kids out of a public school to participate in a private school,” he says. “They lose rights. They lose protections.”

These are rights that provide things like due process and freedom of speech and protection against things like unlawful search and seizure, among many others that cover students, as well as the teachers and staff employed by the school.

“We’re not opposing the idea of banning religious groups just because they’re religious,” Green continues. “But there will be religious groups arguing that because of who they are they don’t have to follow the Constitution. They don’t have to follow good governance. That is why we wrote this.”

Besides, he notes, charter schools were created by legislation with the intent they would be defined as public schools. Though over time and in some places, they’ve argued they are private entities as the need arises.

Green and his co-authors suggest in their review that: charters be governed by a democratically elected body, like a local board of education; their budget and staffing plans be subject to approval by that governing body; and all teachers and staff members be employees of that governing body.

They also recommend that all state and local laws applicable to public schools also apply to charters, including open meetings and public records laws. Further, they say, states need to give independently operated charter schools a deadline to fall under local jurisdiction – and prevent independent operation henceforth.

In 2023, Oklahoma approved the country’s first virtual religious charter school, but opposition from the state attorney general drove the case to the U.S. Supreme Court, which deadlocked on whether to allow it, keeping intact a state court’s ruling against it.

Green says that when the high court again takes up the question and inevitably gives its approval, it also will open an opportunity for non-Christian religious charters. In Texas, for instance, Islamic private schools petitioned to participate in the state’s school voucher program.

“It’s not going to be just religious Christian schools. Islamic schools and other religions that people may not be comfortable with will seek to participate. This has the potential to cause a great deal of consternation within the school choice movement, even though admittedly the vast majority will be Christian schools,” Green says.

He continues, “I certainly applaud those who are fighting to prevent religious charter schools from happening. A lot of my colleagues are doing just that, and they may be able to win out in the end – it would be a good thing if they did. But my work looks at reality, and this is not just about religion. It’s about students’ rights.”

The policy brief received funding from the Great Lakes Center for Education Research and Practice.