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Kathleen Porter-MageeAugust 17, 2023
Catholic schools may lose the ability to enforce dress codes, among other policies, if they “go public” and become charter schools. In this 2016 file photo, students in dress shirts and sweaters read at their desks at Don Bosco Cristo Rey High School in Takoma Park, Md. (OSV Newsnphoto/CNS file, Jaclyn Lippelmann, Catholic Standard)Catholic schools may lose the ability to enforce dress codes, among other policies, if they “go public” and become charter schools. In this 2016 file photo, students read at their desks at Don Bosco Cristo Rey High School in Takoma Park, Md. (OSV Newsnphoto/CNS file, Jaclyn Lippelmann, Catholic Standard)

Catholic schools are on the ropes. Do we have the courts in our corner?

That is the question facing the world’s largest network of independent schools in the wake of two important—but not widely understood—developments in the fight for public funding for Catholic education in the United States. The first is a court ruling that a charter school in North Carolina does not have the right to set different dress codes for male and female students. The second is Oklahoma’s authorization of the nation’s first religious charter school—a Catholic “virtual” academy that could receive public funds beginning in 2023-24.

A Catholic “virtual” academy in Oklahoma could receive public funds beginning in 2023-24.

Before digging into each case, it is worth taking stock of where Catholic schools stand. While U.S. Catholic schools have enjoyed well-deserved praise for their performance during and since the Covid-19 pandemic, this has done little to reverse the trend of school closures that we have seen for decades. At best, there was a one-year reprieve in 2021-22, when Catholic schools experienced the first nationwide enrollment increase in two decades and the largest in more than half a century.

Nationwide enrollment during the 2022-23 school year was stable, but over the course of the year, school leadership announced the consolidation or closure of more than 68 Catholic schools, bringing the number of schools that have closed in the past decade to well over 900.

The most obvious—if incomplete—explanation for the continued decline in the number of Catholic schools is the difficult financial reality that many face. While the number of parents who have access to publicly funded scholarships to attend private and parochial schools has increased dramatically, they are still just a fraction of all families with school-age children. Particularly for Catholic schools that serve economically disadvantaged communities in states without school choice, the finances just do not add up.

Whether Catholic charter schools will ultimately be good for the Catholic school movement largely hinges on how much autonomy the church would have to give up to be authorized by a state.

Because all parents should have the right to educate their children in the values and in the faith they choose, it is vital to expand publicly funded scholarships through tax credits, vouchers or, more recently, education savings accounts. With these policies, more parents are able to choose private or religious schools, supporting their mission by simply paying tuition. These scholarship programs can also help preserve the legacy of urban Catholic schools, which have provided a lifeline to poor and immigrant families for generations.

Now a combination of favorable court decisions and advocacy efforts have opened another pathway for financial support of Catholic education: religious charter schools. In June, Oklahoma became the first state to authorize a publicly funded Catholic charter school, St. Isidore of Seville.

But not all school choice policies are equal. Whether Catholic charter schools will ultimately be good for the Catholic school movement largely hinges on how much autonomy the church would have to give up to be authorized by a state. That comes down, in part, to the question of whether charter schools are public schools that are privately run or are effectively private schools.

The North Carolina Dress Code Case

The question of whether charter schools are public or private has already been litigated in North Carolina in the case of Peltier v. Charter Day School.

Charter Day School is a government-authorized charter school that set a dress code in 2015 requiring female students to wear skirts, explaining that they are “fragile vessels” deserving of “gentle” treatment by boys. Bonnie Peltier, the guardian of a student, sued the school, arguing that the dress code includes a “sex-based classification grounded on gender stereotypes” that violates the Equal Protection Clause of the U.S. Constitution and subjects girls to discrimination in violation of Title IX of the Education Amendments Act of 1972.

In 2022, the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., decided in favor of the students. The court ruled that because charter schools “may only operate under the authority granted to them by their charters with the state,” and because North Carolina state law makes explicit that “a charter school that is approved by the State shall be a public school within the local school administrative unit in which it is located,” charter schools are state actors. That means they are under the same constitutional restrictions that apply to traditional public schools and they cannot violate the constitutional protections of their students, even if those students attend the schools by choice.

The Fourth Circuit’s decision was appealed to the Supreme Court, which refused to hear the case. That means, at least for now in North Carolina, that charter schools are public, not private schools. And that makes a religious charter school in North Carolina difficult to imagine, since no government-authorized school would be guaranteed the right to teach a faith, or to hire and fire based on the values of its faith.

The Trojan Horse of Government Funds

Meanwhile, in Oklahoma, the state’s Virtual Charter Board recently voted 3 to 2 to authorize what would become the nation’s first religious charter school, St. Isidore of Seville.

The constitutional scholar and school choice advocate Nicole Steller Garnett has argued that despite the decision in Peltier v. Charter Day School, charter schools are private, not public schools. “Charter laws enlist private organizations to run schools, and give them substantial operational autonomy in order to foster educational pluralism,” Ms. Garnett explains.

In fact, Ms. Garnett goes on to argue that state charter laws which explicitly forbid religious organizations from running charter schools discriminate against them on the basis of their faith—something the Supreme Court deemed unconstitutional in the 2022 Carson v. Makin decision. Given that, Ms. Garnett maintains that whether to support Catholic charter schools is a “prudential question,” not a legal one.

The courts may ultimately decide that Catholic schools are eligible for public charter funding, but just because we can do something does not mean we should.

This prudential question is important to how the church executes its K-12 education ministry. The courts may ultimately decide that Catholic schools are eligible for public charter funding, but just because we can do something does not mean we should. Those of us who are working to find innovative ways to sustain authentically Catholic education—and particularly Catholic schools that serve the urban poor—would do well to pause before we rush to the government for aid.

The most obvious reason for caution is the threat to religious liberty. Religious institutions have rarely done well when forced to appeal to the government for their continued existence, and the threats to Catholic school autonomy would no doubt be swift. Courts have historically drawn a bright line between public and private schools, deciding that public schools (and their employees) are government actors and therefore more constrained in terms of their policies and actions.

As recently as 2020, for instance, in the case of Our Lady of Guadalupe v. Morrissey-Berru,the Supreme Court ruled that religious institutions have broad freedom in hiring “ministers of the faith,” including faculty and other staff. In practice, that means that religious schools have the right to hire based on their religious beliefs, freed from excessive government oversight and intervention. Public schools, by contrast, cannot align hiring practices in a way that prefers certain religious or cultural values over others.

Given that history, blurring the lines between public and private schools—as the creation of “Catholic charter schools” may well do—could invite far more government control over what it means to teach the faith than the church wants. For instance, if charters are public schools, could a religious charter require school leaders to be Catholic, as most parochial schools currently do? Would it be bound by state curriculum guidelines that violate Catholic teaching and beliefs? To be sure, the impact of such constraints would undoubtedly vary by state. But Catholic leaders should proceed with caution, recognizing a new layer of complexity for them to grapple with.

Ultimately, these steps forward in the courts fail to provide Catholic school supporters with a path that provides both the financial sustainability and religious liberty we seek. We must blaze our own trail in a difficult environment for an institution that has meant so much to so many.

[Read next: “Catholic schools attracted students during the pandemic. Can they keep them?”]

[Related: “Catholic colleges: Do less if you want to save your religious mission”]

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