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Abstract

Over the course of its history, the United States has wrestled with a wide variety of issues that have tested the tension between the Establishment and Free Exercise clauses of the First Amendment. One such issue involves the extent to which religious schools can access public funds, which was addressed by the proposal of the Blaine Amendment on a national scale in 1875. The Blaine Amendment was intended to prevent religious groups from accessing public funds, and although it did not pass on a national level, it was adopted by many states.

However, some recent United States Supreme Court cases have established that a public funding program cannot discriminate against a religious entity merely because of its religious status. Additionally, Carson v. Makin took that rationale a step further, as it was held that there is no distinction between disallowing public funds for a religious school because of its mere status as religious institution and disallowing such funds because the school intends to use public funds to advance the beliefs of its associated religion.

With this status-use distinction eliminated, a new question arises from the legacy of Carson regarding whether there could ever be a religious charter school. This Note argues that Carson has opened the door to the possibility of religious charter school and evaluates this issue through the case of St. Isidore of Seville, which, in the aftermath of Carson, has made an attempt to become the nation’s first Catholic charter school.

Part II of this Note will discuss the anti-Catholic history of government-backed school funding programs and how those programs have evolved in recent years to more expansively include religious schools. Part II will also analyze how the Carson decision contributed to this expanded inclusion. Part III will discuss how Carson’s elimination of the status-use distinction opens the door for Catholic charter schools. Part III will also evaluate the flawed analysis of the Oklahoma Supreme Court in deciding St. Isidore’s case and delve into relevant precedent regarding the State Action Doctrine to determine what role it plays in the world of religious charter schools. Specifically, this Note will argue that charter schools are not public schools, and therefore, religious charter schools should not be barred by the State Action Doctrine. Part IV will comment on the United States Supreme Court’s review of St. Isidore’s case, and how, despite an adverse decision to St. Isidore, the Catholic charter school movement is not defeated.

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