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Abstract

In July 2022, Arizona became the first state to create a universal school-choice program by passing the Empowerment Scholarship Account Program, an education savings account (ESA) for all students outside the public school system. Over the past thirty years, Arizona has expanded its school choice offerings, which includes one of the largest charter school systems in the nation. Today, students in Arizona have many choices for school, including traditional public schools, charter schools, magnet schools, secular private schools, and religious private schools. In the future, could one of those options be a religious charter school?

Justice Breyer’s dissent in Espinoza v. Montana Department of Revenue warned of the emergence of religious charter schools: “What about charter schools? . . . [W]ould the majority’s rule . . . trigger[] a constitutional obligation to fund private religious schools?” Other scholars have considered this possibility, most earnestly since the Supreme Court’s Espinoza decision in 2020, and one state attorney general proposed his own legal analysis last year. The Archdiocese of Oklahoma City and the Diocese of Tulsa have submitted an application for a Catholic virtual charter school in Oklahoma and received approval in June 2023 to open in fall of 2024, with litigation sure to follow.

There are two constitutional questions at stake. First, are religious charter schools constitutionally permissible, and second, if allowed, are they constitutionally required? Although these questions have been explored by scholars in the federal context, less attention has been given within the setting of state constitutions. Given the variations of charter-school laws and state constitutions regarding religious funding, each state’s fact-specific situation could provide a different answer. This Note intends to explore the possibility of religious charter schools in the context of two states: Arizona and Massachusetts. Both states have charter schools as well as language in their state constitutions prohibiting the governmental funding of private schools. However, each state’s education system looks very different, especially concerning public funding for religious schools. Arizona’s encouragement of school choice suggests the state is a strong candidate for religious charter schools, while Massachusetts’s Democratic politics makes it unlikely that school choice would be expanded, and even more so for religious schools.

This Note will first explain the general context of charter schools and why religious charter schools could be beneficial. Then, the Note will establish the legal framework supporting religious charter schools, particularly legal precedent on the state action doctrine and religious school funding. Then, the analysis will focus on the possibility of religious charter schools in Arizona and Massachusetts based on each state’s political and legal context. Both states are likely required to support religious charter schools given their current secular charter school systems, but that outcome depends on the state constitutionality of each state’s charter school system itself. Neither state is required to support religious charter schools if there are no secular charter schools. I argue that Massachusetts is more likely to act against religious charter schools, potentially by abolishing the existing charter school system, while Arizona would likely be required to have religious charter schools, assuming a resolution on its charter schools’ legal status. This framework of analysis could be extended to other states, providing a starting point for the viability of religious charter schools elsewhere.

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