Minnesota’s charter school law: Unconstitutional religious discrimination?

Over 30 years ago, Minnesota passed a ground-breaking law enacting chartered public schools. But based on recent U.S. Supreme Court decisions, Minnesota’s restrictions on charter school authorizers appear constitutionally suspect, according to a new report by the Manhattan Institute.

As privately operated, publicly funded schools, charter schools are legally identified as “public schools.” Their contract to operate and receive funding is between a private operator and a charter school “authorizer.” In Minnesota, the state approves authorizers to oversee one or more charter schools and to hold them accountable for the terms in their performance contract, the “charter.”

Under state statutes, these authorizers can be government entities (such as school districts), private colleges (religious included), state colleges or universities, but only secular nonprofit organizations (religious excluded). “These restrictions are constitutionally suspect,” write the report’s authors.

This odd exclusion of religious nonprofits could set the state up for future lawsuits.

Recent decisions by the U.S. Supreme Court in 2020 (Espinoza v. Montana Department of Revenue) and 2022 (Carson v. Makin) have clarified what the Establishment Clause of the First Amendment and the Free Exercise Clause protect: The government is not required to extend public benefits to private organizations or to fund private activity at all. However, if the government chooses to extend benefits to private secular organizations, those benefits must be extended to qualifying religious organizations, “as well as permit them to remain religious,” explains the Manhattan Institute report.

Second, the First Amendment’s nondiscrimination principle applies with equal force to the exclusion of private organizations for their religious character and to the refusal to fund activities imbued with religious content. Therefore, rules limiting public funding to the “secular” or “nonsectarian” activities of religious organizations is as constitutionally problematic as excluding religious organizations altogether.

Again, the government is not required to extend benefits to private actors, but once it decides to do so, it cannot exclude a private entity because of its religious character or the religious nature of its activities.

Minnesota has seen a similar restriction challenged recently, after the 2023 legislative session made changes to the state’s Post-Secondary Enrollment Options program (PSEO) that excludes certain faith-based institutions from participating. Pending the lawsuit, the state issued an injunction that prevents state officials from enforcing the new law.

While government officials may have yet to consider the implications of the U.S. Supreme Court’s decisions on the programs they administer, reforming eligible charter school authorizers to comply with the Free Exercise Clause could correct any unconstitutional restrictions that might result in future lawsuits.