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

A Supreme Court challenge to Maine’s ban on using taxpayer dollars to allow rural children to attend private religious schools could have surprising effects here in Washington state. Several isolated areas in Maine do not have public schools, so the state pays to send affected children to private schools – as long as those schools are not religious. But in oral argument on Dec. 8, a majority of judges appeared inclined to say that Maine’s exclusion from religious schools violates the First Amendment’s protection of the “free exercise” of religion.

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

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

In addition, the public schools section of the state constitution states: “All schools maintained or financed in whole or in part by public funds shall forever be free from sectarian control or influence. “

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

In several cases spanning decades, our court struck down state laws funding bus transportation for parochial students, scholarships for low-income children in private religious schools, and a scholarship. vocational training for a blind graduate student seeking to study for ministry.

Twenty years ago, the legislature created a merit-based university scholarship program with grants for high school graduates at any college as long as they are non-denominational institutions. Joshua Davey’s challenge to this program went to the United States Supreme Court, where in 2003 a majority ruled that it did not interfere with Davey’s freedom of worship and that the state 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 the free exercise of religion than to the separation of church and state. The court appears likely to find that a state program that offers grants for non-religious education, but excludes religious education institutions, violates the First Amendment guarantee of religious freedom. And that is precisely what would impact Washington State’s public charter schools.

Due to the state Constitution’s ban on taxpayer money for religious or sectarian education purposes, the Charter Schools Initiative of 2012 declared that any private sponsor of a charter school must be a non-profit corporation but “cannot be a sectarian or religious organization”. In other words, the legislature may not appropriate the money that would eventually fall into the hands of a religion-based private K-12 school.

When in 2020, the United States Supreme Court ruled that a Montana law providing tuition assistance to parents who send their children to secular private schools, but not to religious schools, violated the first amendment, she singled out the Josh Davey case. But if the Supreme Court rules in the Maine case that when states spend money on education, they can’t tell the difference between secular and sectarian institutions, the ruling likely won’t uphold the Josh Davey distinction. , and Washington will be forced to spend public money on religious schools. – which he cannot do under the Constitution of our State.

Our public charter school program is discretionary, and there is no requirement that Washington have charter schools at all. If the state is to continue to have charter schools, the only possible solutions to a Supreme Court ruling against Maine would be for Washington to amend its Constitution to allow public money for religious schools, or for our Supreme Court to the state overturns a century of decisions. Or the legislature could do away with charter schools altogether.

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