Charter Schools Are Not ‘State Actors,’ And SCOTUS Should Have Said So

The Supreme Court deadlocked on Thursday in St. Isidore of Seville Catholic Virtual School v. Drummond. The tie is a loss for low-income families, who are the primary beneficiaries of charter schools. The Supreme Court’s decision not only calls into question the rights of faith-based organizations to compete in the charter school marketplace, it also leaves intact a recent ruling holding that charter schools are legally equivalent to traditional district schools. Charter schools need more autonomy than district schools if American families are going to have real choice in education.

Although the justices did not issue an opinion, the oral argument revealed that they were split on whether faith-based organizations could operate charter schools. But the religion question hinges on a more fundamental issue — whether charter schools are private organizations or “state actors,” the legal parlance for governmental or quasi-governmental entities that are treated as the government for legal purposes.

If faith-based charter schools are private entities, then they are entitled to the free exercise of religion, and the state could not discriminate against them on the basis of religion any more than it could discriminate against religious organizations that contract with the city to find homes for foster children. If, on the other hand, charter schools are state actors, then they cannot operate as faith-based schools for the same reason that traditional public schools cannot be religious: state actors must be secular.

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