Three decades have passed since the first public charter school opened its doors. More than 3 million of the nation鈥檚 K-12 students now attend them. But debates over how and where charter schools operate are still playing out in courts and statehouses across America.
The latest bump in the road for the expansion of charter schools came Dec. 11 in Kentucky, as Franklin County Circuit Judge Phillip Shepherd declared unconstitutional the state鈥檚 law setting up a funding stream for charter schools.
The law requiring districts to send portions of their revenue to charter schools passed in 2022 despite fervent objections and a veto from Gov. Andy Beshear, a Democrat. Shepherd wrote in his that the law amounts to approving 鈥渢axpayer funded private schools that are exempted from traditional public oversight and regulation.鈥�
Similar litigation is unfolding in Montana, where public education advocates are challenging a recently passed state law that , separate from the state board of public education, for considering applications for charter schools and exempting those schools from most regulations that apply to the state鈥檚 public schools.
And in Oklahoma, a fierce legal dispute over whether to allow a religious charter school to open could go all the way to the U.S. Supreme Court.
The vast majority of states allow charter schools to operate as publicly funded, privately operated alternatives to traditional public schools. The only remaining holdouts are Nebraska, North Dakota, South Dakota, and Vermont, according to the , a federal database.
But the proliferation of charter schools hasn鈥檛 quieted criticism and concern from some corners鈥攅ven as measures authorizing public funds for private schools and homeschooling are the subject of more legislative momentum and resulting legal challenges. School districts and advocacy organizations have pushed repeatedly for courts to rule on whether charter schools undermine states鈥� constitutional commitments to provide public education for all students.
That line of inquiry is particularly salient now as traditional public schools and public charters alike grapple with declining enrollment as the national birth rate slows, said Tom Hutton, executive director of the California Charter Authorizing Professionals, and an expert on education law.
Schools, which are funded in large part based on the number of students they enroll, are becoming increasingly sensitive to the prospect of increased competition, said Hutton, whose organization represents entities that grant the charters that allow charter schools to open.
鈥淭he question of charters鈥� interrelationship with the larger public school system鈥攖hose questions are being called that we maybe danced around for a long time,鈥� Hutton said.
Courts typically rule in favor of allowing charter schools to proceed, with a handful of exceptions. Georgia sought and after a court the year before. In Washington state, the state supreme court declared charter schools unconstitutional in 2015 and then after state lawmakers tweaked the funding mechanisms.
Kentucky joins that short list鈥攆or now. The state, which has allowed charter schools under a 2017 law and had already received a proposal for , will likely appeal the ruling to Kentucky鈥檚 supreme court.
If the ruling stands, though, Kentucky lawmakers who want charter schools will have to secure approval for a referendum to settle the constitutional questions, Shepherd wrote. The referendum could simply affirm the state鈥檚 charter law, or it could seek to amend the state鈥檚 constitution to explicitly permit charter schools.
Previously, the state鈥檚 supreme court last year that allowed taxpayers to claim state tax credits for their contributions to organizations that offered education savings accounts, which families could put toward private school tuition or other education expenses.
Charter schools highlight sometimes blurry distinctions between public and private education
Charter schools emerged three decades ago, in part out of concerns that some students, particularly in urban areas, needed more flexible alternatives to the rigidity of the traditional public school model for instruction.
These schools combine state funding and oftentimes philanthropic support to run their programs. Some are operated by independent nonprofit or for-profit providers, while others are part of larger charter management organizations. Many have open enrollment policies similar to public schools, though some admit students through lotteries.
The movement for private school choice in recent years has shifted focus away from charter schools. Plus, bipartisan support for the sector has cooled, with the Biden administration and charter boards in several states over new federal rules that make it harder for charter schools to receive federal funding.
Instead, private school choice proponents have gravitated toward options such as vouchers, education savings accounts, and tax-credit scholarships鈥攑ublic dollars that parents can use to pay for private school tuition, fees, and other related expenses.
Those programs, too, have faced legal challenges arguing that they violate constitutional bans on public funding for private education. In Wisconsin, a is aiming to strike down the state鈥檚 approach to both vouchers and charter schools.
Preston Green, a professor of education at the University of Connecticut who has , sees a connection between those efforts and those of charter school advocates.
鈥淔or a lot of these states, it is a real push towards the funding of private education by any means necessary, be it charter schools, or vouchers, or both,鈥� Green said. 鈥淐harter schools, because of their murkiness, they can be used in a variety of ways.鈥�
They also operate quite differently from one state to the next. In some states, school boards or district leaders are the only eligible authorizers for charter schools. Elsewhere, though, states establish charter commissions or permit departments of education to play a role.
That鈥檚 one of the issues at hand in Montana. State lawmakers passed two separate bills related to charter schools: that allows school districts the ability to approve charter schools within their boundaries, and establishing a state commission to assess charter school applications on its own.
In September, a district court judge in Montana鈥檚 Lewis and Clark County signaled because it allows prospective schools to bypass the state board of public education.
The separation of church and state is under increased scrutiny
The ripple effects from the disputes in Kentucky and Montana may pale in comparison to the looming decision in Oklahoma over whether religious charter schools violate the U.S. Constitution鈥檚 provision barring the government鈥檚 establishment of a religion.
Ryan Walters, head of the state鈥檚 education department, has to formally advocate in favor of the school as the case unfolds before the Oklahoma Supreme Court. Judges have , citing the state attorney general鈥檚 role as a plaintiff arguing the school should not open.
The proposal for a religious charter school is emblematic of the inherent complexities of charter schools.
Those pushing for the school to be approved argued that states offering money to private schools also have to offer them to charters. But charter school proponents often argue the opposite: their schools aren鈥檛 taking away from public schools because they are, in fact, public schools.
The U.S. Supreme Court鈥檚 conservative majority could foreshadow a ruling on these questions that significantly departs from recent precedent, Hutton said.
鈥淭hose of us who believe in charter schools want to loudly assert they are public. There are areas in which we have created these hybrids,鈥� Hutton said. 鈥淓ven this many years into the charter movement, nationally people are wrestling with this.鈥�
