Supreme Court Deadlock Spurs New Wave Of Lawsuits Over Religious Charter Schools

Supreme Court Split Reignites National Debate Over Faith-Based Charters

This year’s 4-4 split at the U.S. Supreme Court on whether charter schools may offer religious instruction did not settle the issue — it merely postponed it. Across multiple states, new lawsuits, attorney general opinions and charter applications have reignited a contentious debate about public funding, church-state separation and the civil-rights protections that apply to charter students.

Key Legal Battles

Tennessee: Wilberforce Academy, a nonprofit, has sued Knox County Schools in federal court after the district rejected its proposal to open a Christian charter school. Tennessee Attorney General Jonathan Skrmetti issued an opinion saying the state’s ban on religious charter schools likely violates the First Amendment, writing that "Tennessee’s public charter schools are not government entities for constitutional purposes and may assert free exercise rights."

Oklahoma: The National Ben Gamla Jewish Charter School Foundation — founded by former Congressman Peter Deutsch — is preparing to apply to the state charter board for a Jewish virtual high school. That effort follows litigation over St. Isidore of Seville Catholic Virtual School, where an Oklahoma Supreme Court ruling blocked the school from receiving state funds. The Ben Gamla proposal would initially enroll a small cohort focused on college readiness and Jewish learning.

Idaho and Colorado: Idaho’s Brabeion Academy initially promoted itself as a Christian school but was approved as a secular charter and will open as nonreligious next fall. In Colorado, Riverstone Academy — which calls itself the state’s first public Christian school and serves roughly 30 students in Pueblo — faces warnings from the Colorado Department of Education that its per-student funding could be at risk if it is found to be sectarian.

Arguments On Both Sides

Supporters of faith-based charters cite earlier Supreme Court precedents that allowed public funds to flow to religiously affiliated institutions and argue that excluding religious organizations from operating charters amounts to unconstitutional discrimination. Advocates such as the Becket Fund and state attorneys general who have issued supportive opinions argue that nonprofits running charters are like private contractors and therefore entitled to free-exercise protections.

Opponents — including many charter leaders, public-school advocates and groups such as Americans United for Separation of Church and State — warn that treating charters as private actors could jeopardize funding streams and civil-rights protections for roughly 3.7 million charter students nationwide. They argue publicly funded programs must remain nonsectarian to preserve church-state separation.

Precedents And What’s Next

Proponents often point to the 1982 Supreme Court decision Rendell-Baker v. Kohn, which said a privately run school receiving public funds did not act under the color of state law in certain employment decisions. Scholars and advocates expect that unresolved questions about whether charter operators are "state actors" or private contractors will bring another case before the Supreme Court. Observers note that Justice Amy Coney Barrett recused herself from the St. Isidore matter, and analysts have speculated about how a full bench might rule if a similar case reaches the high court again.

This debate will likely continue in federal and state courts as organizers across the country press for authorizations and as state officials and opponents mount legal and administrative challenges.

Bottom line: The 4-4 Supreme Court split did not end the conflict; it has accelerated a patchwork of legal fights that could eventually return to the nation’s highest court.