The Idaho Charter School Network, along with similar organizations from 23 states, urged the U.S. Supreme Court this week to uphold an Oklahoma Supreme Court decision that religious groups cannot open public charter schools.
However, the root of the opposition in Idaho isn’t to religious education, but instead out of concern that a reversal of the Oklahoma ruling would find that charter schools aren’t public schools, said Terry Ryan, board chair of the Idaho Charter School Network.
“It is possible that the Supreme Court could declare charter schools not as public entities but as private entities,” Ryan said. “If we’re deemed not public charter schools but private entities then the way that we’re funded under Idaho state law could be in jeopardy.”
Ryan presented on the brief during the Public Charter School Commission meeting on Thursday. Commissioners said they plan to monitor the case as it moves forward.
The Oklahoma case
Back in 2023, the Oklahoma State Board of Education approved an application by St. Isidore of Seville Virtual Charter School, which allowed the school to serve grades K-12 online, with part of the school’s mission being to evangelize the Catholic faith.
A group of Oklahoma parents, faith leaders, and a public education nonprofit sued to block the school. The case went to the Oklahoma Supreme Court, which invalidated the approval.
“Under Oklahoma law, a charter school is a public school,” wrote Justice James Winchester, an appointee of former Republican Gov. Frank Keating, in the court’s majority opinion, the Associated Press reported. “As such, a charter school must be nonsectarian.”
In her dissent, Justice Dana Kuehn wrote that excluding St. Isidore from operating a charter school based solely on religious affiliation would violate the Free Exercise Clause of the First Amendment.
Later this month, the U.S. Supreme Court is expected to hear arguments in its review of the Oklahoma Supreme Court decision. The arguments in the case center on the separation of church and state and whether or not a charter school is a public school.
The latter is why Idaho signed an amicus brief this week urging the Supreme Court to uphold the lower court’s decision.
Idaho opposition
The brief the Idaho Charter School Network signed argues that charter schools have already been deemed public schools.
Evidence of that is that they receive public funds and are held accountable to the same standards as public schools, unlike private schools, which do not have to fulfill the same state testing requirements, can turn away students and cannot be shut down by the state.
Read the amicus brief here.
In Maine, a prior court case found the state couldn’t exclude a religious school as an educational vendor if it was willing to do business with a similar non-religious vendor.
In that decision, the court found that Maine had not created an alternative kind of education within the public sector but instead was just doing business with contractors.
However in Oklahoma, the brief argues, the state isn’t just working with vendors or contractors in the free market but instead has created an alternative kind of public education, making charter schools subject to the same rules of separation of church and state as their peer public schools.
Similarly in Idaho, charter schools must follow the same state regulation and testing schedules as public schools. Idaho charter teachers are part of the state retirement system. And charter schools are funded on average daily attendance like traditional public schools.
If the Supreme Court were to find that charter schools are not public entities, the brief argues many states might come to the conclusion that they never would have authorized public charter schools.
The signers of the brief “respectfully urge this Court not to take a step that could well undermine one of the most dynamic and salutary developments in public education in the last several decades,” the brief reads.
In Idaho, Ryan said the way the state funds charter schools would have to be totally re-examined, throwing the state’s existing schools into tumult. If the schools lost funding, making mortgage or rent payments could become difficult, Ryan said.
“It would just create a lot of uncertainty and unknowns,” he said.
Ryan noted that the charter network has been supportive of tax credits and education savings accounts, which allow taxpayer funds to go to private schools, including those that provide a religious education.
While Ryan said he believes Idaho is committed enough to charter schools that legislators would work to find a legal solution to continue funding, the uncertainty would cause untold damage to existing schools.
The diversity of states that signed the brief show the threat to charter schools in a variety of systems in both red and blue states, Ryan said. Charter non-profits from California, Massachusetts, Minnesota, New York, Oklahoma, Utah, Nevada and New Mexico signed on to the brief.
“This is the first time in my life I have ever argued for the status quo in education,” Ryan said. “Just the amount of disruption and uncertainties it would create is not a reality we want to face.”
Editor’s note: Terry Ryan is also the CEO of the Boise-based education nonprofit Bluum. Idaho Education News and Bluum both receive funding from the J.A. and Kathryn Albertson Family Foundation.
