Avoiding the Supreme Court's Religious Charter-School Trap - Governance Change for the New Legal Era

Oct 15, 2026

46 states and the District of Columbia allow charter schools, and many permit independently governed entities that the U.S. Supreme Court may soon treat as non-state actors. The brief warns that the Court’s likely rulings could open religious charter schools while exempting them from core public-school legal duties tied to the First Amendment. Legislators are urged to act proactively by altering charter governance structures to preserve “publicness” and strengthen protections against discrimination, fraud, mismanagement, and transparency failures.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages33

Reading Time1 h 23 min

AccessFree to download

Executive Summary

Likely Supreme Court outcomes

Risks to governance, accountability, and civil rights

Legislative options and proposed safe harbor

Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era Kevin G. Welner, University of Colorado Boulder Carol C. Burris, Network for Public Education Preston C. Green III, University of Connecticut May 2026 National Education Policy Center School of Education University of Colorado Boulder [nepc.colorado.edu](nepc.colorado.edu) Acknowledgements NEPC Staff Faith Boninger Publications Manager Kelly Clancy Academic Editor Elaine Duggan Production Design Alex Molnar NEPC Director Kevin Welner NEPC Director Suggested Citation: Welner, K.G., Burris, C.C., & Green, P.C. (2026). Avoiding the Supreme Court’s religious charter-school trap: Governance change for the new legal era. Boulder, CO: National Education Policy Center. Retrieved [date] from [http://nepc.colorado.edu/publication/religious](http://nepc.colorado.edu/publication/religious)charters Funding: This policy brief was made possible in part by funding from the Great Lakes Center for Education Research and Practice. GREAT LAKES CENTER For Education Research & Practice Peer Review: Avoiding the Supreme Court’s Religious Charter-School Trap: Governance Change for the New Legal Era was double-blind peer-reviewed. This work is licensed under a Creative Commons Attribution-NonCommercialNoDerivatives 4.0 International License. This publication is provided free of cost to NEPC’s readers, who may make non-commercial use of it as long as NEPC and its author(s) are credited as the source. For inquiries about commercial use, please [contact NEPC at](contact NEPC at nepc@colorado.edu)[ nepc@colorado.edu](contact NEPC at nepc@colorado.edu). The National Education Policy Center (NEPC), a university research center housed at the University of Colorado Boulder School of Education, sponsors research, produces policy briefs, and publishes expert third-party reviews of think tank reports. NEPC publications are written in accessible language and are intended for a broad audience that includes academic experts, policymakers, the media, and the general public. Our mission is to provide high-quality information in support of democratic deliberation about education policy. We are guided by the belief that the democratic governance of public education is strengthened when policies are based on sound evidence and support a multiracial society that is inclusive, kind, and just. Visit us at: [http://nepc.colorado.edu](http://nepc.colorado.edu) [http://nepc.colorado.edu/publication/religious-charters](http://nepc.colorado.edu/publication/religious-charters) 2 of 33 Avoiding the Supreme Court's Religious Charter-School Trap: Governance Change for the New Legal Era Kevin G. Welner, University of Colorado Boulder Carol C. Burris, Network for Public Education Preston C. Green III, University of Connecticut May 2026 Executive Summary Forty-six states and the District of Columbia permit charter schools to open. Of these jurisdictions, 33 states and the District of Columbia allow for the creation of independently governed and operated charter schools, entities that the Supreme Court may soon declare to be non-state actors and thus not bound by constitutional obligations. These states are now vulnerable to a one-two punch. First, the Supreme Court is likely to rule that denying institutions the opportunity to open religious charter schools amounts to unconstitutional anti-religious discrimination under the First Amendment’s Free Exercise Clause. Second, the same clause has been invoked to exempt such religious school operators from basic laws governing public schools—including anti-discrimination statutes. This exemption could extend to open-meetings requirements, conflict-of-interest rules, due process protections, accountability frameworks, and transparency mandates—fundamental safeguards against fraud, mismanagement, and mistreatment. State legislators who are troubled by public dollars flowing to schools that

FAQs

Why are charter schools potentially vulnerable to Supreme Court changes regarding religious charter schools?

Many jurisdictions allow independently governed charter entities that could be treated as non-state actors. The brief argues that likely First Amendment rulings could both permit religious charters and exempt them from key public-school legal requirements.

What specific safeguards could be avoided under an exemption affecting religious charter operators?

The brief lists potential gaps in anti-discrimination statutes and core governance protections, including open-meetings requirements, conflict-of-interest rules, due process protections, accountability frameworks, and transparency mandates.

What does the brief recommend lawmakers do to respond to this new legal era?

State legislators should act before changes take hold by changing charter-school governance structures. The goal is to preserve basic “publicness” elements and maintain the charter-school sector while upholding governance, accountability, and civil-rights protections.

Oct 15, 2026

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