An Update from the National Alliance on St. Isidore v. Drummond
Friends and colleagues,
Earlier today the U.S. Supreme Court heard St. Isidore v. Drummond, its first-ever case about charter schools. The National Alliance for Public Charter Schools and our team of legal experts were in the courtroom.
Justice Jackson asked the last question of the day, which was “what will happen” if the Court says that charter schools are really private schools? Here’s what will happen: charter schools will lose federal funding, state funding, access to school buildings, we won’t know what rules and requirements we must follow, and in some states, charter school programs may be ended altogether.
Some people think this will bring more school options to families. But we know that in some states, it will result in fewer school options.
This case is a big deal for the charter community with serious consequences, depending on how the Justices rule. This morning, the Wall Street Journal ran a column explaining our concerns. We’ve pasted it below so that you can read more.
We expect a ruling from the U.S. Supreme Court by early July. In the meantime, we’re working closely with state leaders to make a plan for every state based on its charter law and political landscape.
We will keep you posted on this case as developments happen, and you can visit our website for the most up-to-date information at any time.
Thank you!
Starlee
Supreme Court Could Crush Charter Schools
If the justices rule that they are private, some states would respond by simply abolishing them. Read the column here.
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The Supreme Court hears oral arguments Wednesday in St. Isidore v. Drummond, its first-ever case about charter schools. I’ve seen many headlines claiming that the justices are about to take a wrecking ball to the separation of church and state. That won’t happen, but the high court could deal a mortal blow to the charter movement by finding that charters are private, not public, schools.
In Zelman v. Simmons-Harris (2002), the justices upheld private-school choice programs that included religious schools. Since then, 29 states, with Texas days away from joining them, have created programs funded by taxpayers and businesses that allow parents to pay for private-school tuition, including at schools that provide a religious education. The debate about taxpayer funding of religious education is settled—it’s happening in more than half the country. But that isn’t the issue in St. Isidore.
Clint Bolick, an Arizona Supreme Court justice who was an architect of the winning legal theory in Zelman, said in a recent podcast: “If the Court perceives that [charters] are public schools, it would require a huge jump in jurisprudence to say that they can be religious. There is virtually no existing case law that could be cited for that proposition.”
Forty-seven states, Guam, Puerto Rico and the District of Columbia have adopted laws authorizing charters explicitly as public schools. Charters comply with voluminous state and federal requirements to ensure they maintain “publicness,” like being free and open to all students.
The entire operational foundation of the charter movement relies on this public status. In all but three states, charters are funded through the standard per-pupil funding structure. In many states charters also have access to taxpayer-backed financing mechanisms for buildings or to public-school buildings themselves.
Charter teachers are typically considered public employees, which allows them to participate in state pension and healthcare programs. Charter schools also receive federal funding for low-income children, children with disabilities, and school meals.
None of this is available to private schools. States that fund private education typically do so through separate line-item appropriations or income tax credit programs.
There are political ramifications to the public-private distinction. In many state capitals there is simply no appetite to use state dollars to fund religious schools. If those states are forced to accept religious charter schools by a Supreme Court ruling, they may decide not to fund new charters at all. Or they may revise their state laws to make charter schools unmistakably public, which would snuff out their autonomy.
In these states—including California, Massachusetts, New Jersey and New York—millions of children attend charters that are the only school choice they have. There are no private school-choice laws in these states.
If the high court determines charter schools are private, they could lose access to their current funding and school buildings or get crushed under the weight of school district bureaucracy. Every dollar, rule and regulation will be renegotiated and litigated in every state and by Congress—with charters in some states faring better than others. It’s counterintuitive, but a decision by the Supreme Court that determines charter schools are private will shut the door to educational opportunity for many children, not open it wider.
Many of the states that are likely to welcome religious charter schools already allow parents to use taxpayer funds at private religious schools. There is simply no need to upend the operational foundation that has allowed charter schools to become the national school-choice strategy. Finding that charters are private schools would have devastating consequences for millions of children. That’s the wrecking ball to worry about.
