How a Supreme Court ruling might upend Washington charter schools

A quirk of history and misaligned constitutional provisions soon could kill public charter schools in Washington state. A case before the U.S. Supreme Court would make that happen.

A Supreme Court challenge to Maine’s ban on using taxpayer funds to enable rural kids to attend private religious schools might have surprising effects here in Washington state. Several isolated areas of Maine are without public schools, so that state pays for sending affected children to private schools — so long as those schools are nonreligious. But during Dec. 8 oral arguments, a majority of justices seemed inclined to rule that Maine’s exclusion of religious schools violates the First Amendment’s protection of “free exercise” of religion.

A court ruling against Maine would spark a chain of events eventually ending public charter schools in our state. Here’s why and how it would happen.

Washington’s 1889 Constitution contains one of the strongest religious freedom provisions in America. Article I, Section 11, states: “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual. But that is followed by a declaration that: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”

Further, the state Constitution’s public schools section mandates: “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”

For more than a century our state Supreme Court has repeatedly and emphatically blocked the use of any public funds to directly or indirectly support religious education or sectarian institutions. In 1918, the court ruled it violated the state constitution for teachers to spend time grading religious education tests taken by pupils off-site. The court’s opinion also said that the courses focused on the Protestant King James Bible and therefore indirectly discriminated against Catholic, Jewish and Muslim students.

In multiple cases spanning decades, our court invalidated state laws funding bus transportation for parochial students, education grants to low-income children at private religious schools and a vocational education grant to a blind graduate student seeking to study for the ministry.

Twenty years ago, the Legislature established a merit college scholarship program with grants for high school graduates at any college — so long as they were nonsectarian institutions. Joshua Davey’s challenge to that program went to the U.S. Supreme Court, where in 2003 a majority ruled it did not interfere with Davey’s freedom of worship and that the state’s policy of not funding religious learning was part of a long American tradition that should be respected.

But the Supreme Court now has new members who give much more weight to religious free exercise than to keeping church and state separate. The court seems likely to rule that a state program offering subsidies for nonreligious education, but excluding religious educational institutions, violates the First Amendment’s guarantee of religious freedom. And that is precisely what would impact Washington state’s public charter schools.

Because of the state Constitution’s bar against any taxpayer money for religious purposes or sectarian instruction, the 2012 charter school initiative stated that any charter school private sponsor must be a nonprofit corporation but “may not be a sectarian or religious organization.” In other words, the Legislature may not appropriate money that would eventually fall into the hands of a religiously-based private K-12 school.

When in 2020 the U.S. Supreme Court ruled that a Montana law providing tuition assistance to parents who send their children to private secular schools, but not religious schools, violated the First Amendment, it distinguished the earlier Josh Davey case. But if the Supreme Court rules in the Maine case that when states spend money on education they may not differentiate between secular and sectarian institutions, the ruling will probably not continue the Josh Davey distinction, and Washington will be forced to spend public money on religious schools — which it cannot do under our state Constitution.

Our public charter school program is discretionary, and there’s no mandate that Washington have any charter schools at all. If the state wants to continue to have charter schools, the only possible solutions to a Supreme Court ruling against Maine would be that Washington could amend its Constitution to allow public money for religious schools, or our state Supreme Court could reverse a century of decisions. Or the Legislature could drop charter schools altogether.

The third option is the likely one. A state constitutional amendment requires a two-thirds vote in the Legislature, and a majority of lawmakers are already skeptical of charter schools. It is quite unlikely the state Supreme Court will change course after 100 years of consistent rulings. So the probable outcome will be the end of publicly-funded charter schools in our state. That may disappoint charter school advocates. But Supreme Court appointments have consequences — some of them unexpected consequences.