Does Tennessee's law banning religious entities from operating public charter schools violate the First Amendment's Free Exercise Clause?

Subject

Constitutionality of Tennessee's Restriction on Religious Charter Schools

Plain-English summary

Tennessee's Public Charter Schools Act bars religious entities from sponsoring public charter schools and requires that any approved charter school "operate as a public, nonsectarian, nonreligious public school." A state representative asked whether those bans violate the Free Exercise Clause of the First Amendment.

The AG concludes they likely do. The U.S. Supreme Court's three recent free-exercise rulings (Trinity Lutheran in 2017 on a playground-resurfacing program, Espinoza in 2020 on a Montana scholarship program, Carson in 2022 on a Maine tuition-assistance program) established that excluding religious entities from a generally available public benefit "solely on account of religious identity" penalizes free exercise and triggers "the strictest scrutiny." A related question, whether religious schools can themselves participate in charter programs, came before the Supreme Court last term in Oklahoma Statewide Charter School Board v. Drummond, but the Court split 4-4 after Justice Barrett recused, so no merits ruling issued.

The AG's analysis sorts Tennessee's relevant provisions into three groups. The "Sponsor Provision" (excluding bodies that promote a religious agenda) and the "Operation Provision" (requiring nonsectarian, nonreligious operation) impose special disabilities on religion and trigger strict scrutiny. The "Schools Provisions" (barring religious schools from establishing or converting to charters) sweep broadly enough to also cover non-religious private schools, so they do not single out religion. Under strict scrutiny, the AG concludes the Sponsor and Operation Provisions probably cannot survive, because no historical "antiestablishment" tradition supports excluding religious schools from public aid, and parental choice would in any event break any direct-funding link.

A central piece of the analysis is whether Tennessee charter schools are governmental entities at all. The AG reasons they are not: they are "created" by their sponsors (private 501(c)(3) nonprofits), governed by privately appointed boards, and subject only to oversight, not to government control. Under Lebron v. National Railroad Passenger Corp. and Biden v. Nebraska, that combination makes them private entities for constitutional purposes, and private entities can assert Free Exercise rights.

What this means for you

For religious organizations interested in sponsoring a charter school

This is the most consequential opinion the AG has issued on Tennessee's charter program in years. It is not a ruling, but it is a clear statement that the state will treat the religious-exclusion provisions of the Charter Schools Act as constitutionally vulnerable. If you have been considering a charter application, this opinion gives you a roadmap for litigation. You would need a denial in hand (or to apply and be denied because of the religious bar), then file a Free Exercise challenge in federal court.

For existing charter school sponsors and operators

The opinion directly questions only the Sponsor and Operation Provisions. The Schools Provisions (barring private schools, parochial schools, home schools, and cyber-based schools from establishing or converting to charters) survive the AG's analysis because they apply broadly. Existing charter agreements remain valid.

For state legislators

If the legislature wants to preserve the Charter Schools Act's secularity rules, it has limited paths. Strict scrutiny under Trinity Lutheran/Espinoza/Carson is not friendly territory. The AG's analysis says no antiestablishment interest can serve as a compelling justification, given the Founding-era practice of public aid to religious schools. The realistic legislative options are: amend the Act to allow religious sponsors and religious operation (with neutral oversight rules), wait for litigation to force the issue, or attempt to recharacterize the program in a way that avoids the constitutional problem (a path the AG signals will not work, citing Carson's "magic words" rule).

For school boards and the Tennessee Public Charter School Commission

If a religious sponsor applies, you will face a real constitutional question. Authorizers should consult the Attorney General's office before denying an application solely on religious-status grounds. A denial that follows the statute's text could expose the authorizer to a Free Exercise challenge.

For parents considering a future religious charter school

If the legal landscape shifts (whether through legislation, a Tennessee court decision, or a federal Free Exercise challenge), participation in any future religious charter school would be governed by the standard charter rules: parental choice, nondiscriminatory enrollment lottery, and statewide academic standards. That structure is what allows the AG to rely on Locke v. Davey and Zelman v. Simmons-Harris to defeat any Establishment Clause objection: state funds reach the religious school only through "the independent and private choice" of parents.

For courts that will hear future challenges

The opinion's most ambitious move is its argument that Tennessee charter schools are not government entities under the Lebron/Biden framework. That conclusion is the linchpin: if charter schools are private, they have Free Exercise rights, and the religious bar fails strict scrutiny. If charter schools are governmental, the analysis flips entirely. The Drummond split gave no guidance, so the issue remains live.

Common questions

What does the Free Exercise Clause say?

"Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S. Const. amend. I. The Supreme Court has long read it to protect religious entities against unequal treatment and to subject any law that targets religious status to "the strictest scrutiny." Trinity Lutheran, 582 U.S. at 458.

What are Trinity Lutheran, Espinoza, and Carson?

Three U.S. Supreme Court decisions from 2017, 2020, and 2022 that struck down state laws excluding religious entities from public benefits. Trinity Lutheran involved Missouri's playground resurfacing program; Espinoza involved Montana's scholarship tax credit; Carson involved Maine's tuition assistance program. The unifying rule: excluding religious entities "solely because of religious character" requires strict scrutiny, and the state's interest in "more separation of church and state than the U.S. Constitution requires" does not qualify as compelling.

What about the Establishment Clause?

The AG argues the Establishment Clause poses no barrier here. First, under Kennedy v. Bremerton School District (2022), the Establishment Clause is interpreted by reference to "historical practices and understandings," and Founding-era governments routinely supported religious schools. Second, under Locke v. Davey and Zelman v. Simmons-Harris, the parental-choice mechanism breaks the link between government funds and religious instruction, so even direct-funding objections fail.

What is the Drummond case?

Oklahoma Statewide Charter School Board v. Drummond, 605 U.S. 165 (2025), involved Oklahoma's approval of a Catholic charter school. The Oklahoma Supreme Court held it unconstitutional on Establishment Clause grounds. The U.S. Supreme Court took the case and split 4-4 after Justice Barrett recused, so no merits ruling issued. The question whether religious entities can operate charter schools therefore remains open at the federal level.

Are Tennessee charter schools "government" or "private" for constitutional purposes?

The AG concludes they are private. Under Lebron v. National Railroad Passenger Corp., constitutional status turns on whether an entity is "Government-created and Government-controlled." Tennessee charter schools are created by private nonprofit sponsors, governed by privately appointed boards (with the exception of one parent representative), and operate under a charter agreement that establishes a contractual rather than governmental relationship. The state's role is regulatory oversight, not control. A charter agreement does not turn a private nonprofit into a government entity.

Did the U.S. Supreme Court address the government-vs-private question in Drummond?

No, because the case ended in a 4-4 split with no opinion. The opinion notes that the Solicitor General's amicus brief in Drummond framed the question as whether charter schools "wholly lack[] constitutional protections that ordinarily protect private entities" by virtue of being labeled "public." The Court did not answer.

What if the legislature simply renames the program?

Carson explicitly rejected that move. The Free Exercise Clause turns on "the substance of free exercise protections, not on the presence or absence of magic words." 596 U.S. at 785. A state cannot relabel a program to avoid the constitutional problem.

Are non-religious private schools also barred from operating charter schools?

Yes, under Tenn. Code Ann. § 49-13-106(c). The "Schools Provisions" survive the AG's analysis because they apply broadly to private schools, not just religious ones. The opinion treats this as evidence that the state's interest is in protecting against pre-existing private schools converting to charter status, a religion-neutral concern.

Does this AG opinion change the law?

No. AG opinions are persuasive authority. The Tennessee Charter Schools Act remains in effect as written until either the General Assembly amends it or a court invalidates the religious exclusions.

Background and statutory framework

Tennessee's Public Charter Schools Act

Enacted in 2002 and amended several times since. Key provisions include:

• § 49-13-102: legislative purpose (innovation, parental choice, closing the achievement gap)
• § 49-13-104(16): sponsor definition; sponsors must be 501(c)(3) nonprofits and may not be private schools, religious schools, or bodies that "promote the agenda of any religious denomination or religiously affiliated entity"
• § 49-13-106(c): bars private, religious, or church schools from establishing public charter schools
• § 49-13-106(j)(7): bars conversion of parochial, cyber-based, or home-based schools to charter status
• § 49-13-107(b): application content
• § 49-13-110: charter agreement (renewable in 10-year cycles)
• § 49-13-111(a)(2): charter schools must "[o]perate as . . . nonsectarian[ and] nonreligious"
• § 49-13-112: per-pupil funding from state and local education dollars
• § 49-13-113: enrollment by parental choice with lottery if applications exceed capacity
• § 49-13-122: revocation procedures
• § 49-13-141: optional LEA sponsorship pathway

Sponsors define the school's "mission and goals" and "academic plan" under § 49-13-107(b). Charter schools have "control of instruction" but must operate as nonsectarian and nonreligious institutions per § 49-13-111(a)(2).

The Free Exercise Trilogy

Trinity Lutheran v. Comer (2017): Missouri excluded religious organizations from a state grant program for playground resurfacing. The Court held this "expressly discriminate[d]" against the church "solely because of its religious character," imposing a "penalty on the free exercise of religion" that could be justified only by a state interest "of the highest order." Missouri's interest in "achieving greater separation of church and State" than the U.S. Constitution required did not qualify.

Espinoza v. Montana Department of Revenue (2020): Montana excluded religious schools from a tax-credit scholarship program. Same result: status-based discrimination triggers strict scrutiny, and the state's antiestablishment interest is not compelling.

Carson v. Makin (2022): Maine excluded religious schools from a tuition-assistance program for towns without local public high schools. The Court extended the analysis to "use-based" restrictions (i.e., restrictions on funds being used for religious purposes), holding that any attempt to scrutinize how a religious school pursues its mission would itself "raise serious concerns about state entanglement with religion."

The Government-Entity Analysis

Under Lebron v. National Railroad Passenger Corp. (1995) and Biden v. Nebraska (2023), an entity is governmental for constitutional purposes if it is government-created and government-controlled. Statutory authorization alone does not turn a private body into a government entity. S.F. Arts & Athletics v. U.S. Olympic Committee (1987) made this point with the U.S. Olympic Committee's federal charter; Bank of U.S. v. Planters' Bank (1824) made it with chartered banks.

The AG argues that Tennessee charter schools fail both prongs:

• Created by sponsors, not the state: Tenn. Code Ann. §§ 49-13-106(c), -107(b); the sponsor "establish[es]" the charter school.
• Governed by privately appointed boards: Tenn. Code Ann. § 49-13-109; the only required public element is one parent representative.

State oversight (charter agreements, performance reviews, revocation procedures with notice and remedy opportunities) is regulatory, not controlling. Cf. S.F. Arts (extensive regulation does not make the regulated entity governmental).

Establishment Clause

The AG argues the Establishment Clause poses no barrier. Two threads:

1. Original meaning: Founding-era governments routinely funded religious schools (Espinoza, 591 U.S. at 481, citing federal denominational schools in DC, Native American mission schools, post-Civil War freedmen's education). Late-19th-century anti-Catholic "Blaine amendment" provisions are dismissed as having a "shameful pedigree."

2. Parental choice: Under Locke v. Davey and Zelman v. Simmons-Harris, when funds reach religious schools through parents' independent choices, the Establishment Clause concern dissolves.

Strict Scrutiny

Under William-Yulee v. Florida Bar, strict scrutiny requires a "compelling interest" with a "narrowly tailored" means. The AG concludes Tennessee can identify no such interest, particularly because the antiestablishment justification has been foreclosed by the trilogy.

Sponsor and Operation Provisions vs. Schools Provisions

The AG's careful tripartite analysis:

• Sponsor Provision (§ 49-13-104(16)(B)): targets only religious sponsors. Strict scrutiny applies.
• Operation Provision (§ 49-13-111(a)(2)): targets only religious operation. Strict scrutiny applies.
• Schools Provisions (§§ 49-13-106(c), -106(j)(7)): bar all private schools (including religious) from establishing or converting to charters. Religion-neutral. Likely constitutional.

The state's interest in barring pre-existing private schools (whatever their character) from converting is a religion-neutral concern that the Schools Provisions can serve.

Citations

• Tenn. Code Ann. § 49-13-101 et seq. (Tennessee Public Charter Schools Act)
• Tenn. Code Ann. § 49-13-104(16) (sponsor definition)
• Tenn. Code Ann. § 49-13-104(16)(B) (religious agenda exclusion)
• Tenn. Code Ann. § 49-13-106(c) (private/religious/church schools cannot establish charters)
• Tenn. Code Ann. § 49-13-106(j)(7) (no conversion of parochial schools)
• Tenn. Code Ann. § 49-13-111(a)(2) (nonsectarian, nonreligious operation)
• U.S. Const. amend. I (Free Exercise and Establishment Clauses)
• Trinity Lutheran Church of Columbia v. Comer, 582 U.S. 449 (2017)
• Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020)
• Carson v. Makin, 596 U.S. 767 (2022)
• Oklahoma Statewide Charter School Board v. Drummond, 605 U.S. 165 (2025)
• Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995)
• Biden v. Nebraska, 600 U.S. 477 (2023)
• S.F. Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522 (1987)
• Kennedy v. Bremerton School District, 597 U.S. 507 (2022)
• Locke v. Davey, 540 U.S. 712 (2004)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
• William-Yulee v. Florida Bar, 575 U.S. 433 (2015)
• Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. 732 (2020)
• Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2025/op25-019.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
November 25, 2025
Opinion No. 25-019

Constitutionality of Tennessee's Restriction on Religious Charter Schools

Question 1
Does Tennessee's ban on religious charter schools violate the Free Exercise Clause of the First Amendment to the U.S. Constitution?

Opinion 1
Likely yes. Tennessee Code Annotated § 49-13-111(a)(2) requires public charter schools to "[o]perate as . . . nonsectarian[ and] nonreligious." In addition, § 49-13-104(16)(B) prohibits bodies that "promote the agenda of any religious denomination or religiously affiliated entity" from sponsoring a public charter school. Those restrictions exclude otherwise qualified religious entities from participating in a public benefit, and no compelling interest is apparent. So § 49-13-111(a)(2)'s and § 49-13-104(16)(B)'s restrictions on religious charter schools likely violate the Free Exercise Clause.

ANALYSIS

In October Term 2024, the U.S. Supreme Court considered whether the Free Exercise Clause of the First Amendment to the U.S. Constitution prevents States from excluding privately run religious schools from charter-school programs in Oklahoma Statewide Charter School Board v. Drummond, No. 24-394. But the judgment below was affirmed by an equally divided court (without a merits decision) after Justice Barrett recused herself. 605 U.S. 165 (2025). The question here tees up the issue Drummond left open.

That question, though, does not come on a blank slate. A trio of recent U.S. Supreme Court decisions—Trinity Lutheran, Espinoza, and Carson—held that excluding religious entities from a public benefit "solely because of their religious character" penalizes free exercise and triggers the "most exacting scrutiny." Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017); see also Espinoza v. Mont. Dep't of Revenue, 591 U.S. 464, 475 (2020); Carson v. Makin, 596 U.S. 767, 780 (2022). And Espinoza and Carson applied these principles in the school context, confirming that a State transgresses the Free Exercise Clause by disqualifying religious schools from public programs "subsidiz[ing] private education." Espinoza, 591 U.S. at 487.

Given that precedent and the Constitution's original meaning, the Free Exercise Clause likely does not allow States to bar religious schools categorically from participating in a public charter school program like Tennessee's.

A. Public Charter Schools in Tennessee

The Tennessee Public Charter Schools Act of 2002, as amended, authorizes the creation of public charter schools to "[e]ncourage the use of different and innovative teaching methods" and "provide greater decision making authority to schools and teachers in exchange for greater responsibility for student performance." Tenn. Code Ann. § 49-13-102(a)(3). The General Assembly intended public charters to serve as an "alternative means" of educating Tennessee children in a way that would "improve learning," "close the achievement gap," and provide more options for parents to meet their child's unique needs.

The Act invites non-profit organizations to "sponsor" a public charter school. The sponsor is the "proposed governing body" of such schools. That non-profit sponsor "decid[es] matters" like "budgeting, curriculum and other operating procedures" for the public charter and "oversee[s its] management and administration." Public charter schools are "part of the state program of public education" and are funded primarily by state and local education dollars, not tuition.

But a sponsor may not be a for-profit entity, nonpublic school, other "private, religious or church school," a postsecondary institution that is not regionally accredited, or a body that "promote[s] the agenda of any religious denomination or religiously affiliated entity." Subsection 106(c) affirms: "A nonpublic school . . . or other private, religious, or church school, shall not establish a public charter school."

A public charter school has "control of instruction," meaning it can develop its own curriculum, except that it "shall . . . operate" as a "nonsectarian, nonreligious" school. Tenn. Code Ann. § 49-13-111(a)(2).

B. The Supreme Court's Recent Free-Exercise Trilogy

The First Amendment to the U.S. Constitution prohibits the government from making a law that "prohibit[s] the free exercise" of religion. That language has long been understood to "'protect[] religious observers against unequal treatment' and subject[] to the strictest scrutiny laws that target the religious for 'special disabilities' based on their 'religious status.'" Trinity Lutheran, 582 U.S. at 458 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 542 (1993)).

Three times in the past decade, the U.S. Supreme Court has confirmed that "denying a generally available benefit" to a religious entity "solely on account of religious identity imposes" just such an impermissible "penalty on the free exercise of religion"—one that "can be justified only by a state interest 'of the highest order.'" The Court has clarified that "achieving greater separation of church and State" than the Establishment Clause "already ensure[s]" is not a "'highest order'" interest.

First, in Trinity Lutheran, the Court held that Missouri violated the Free Exercise Clause by excluding religious entities from a reimbursement program for non-profit organizations that resurfaced their playgrounds.

Next, in Espinoza, the Court held that Montana violated the Free Exercise Clause by excluding religious schools from a scholarship program for private school students.

Finally, in Carson, the Court held that Maine violated the Free Exercise Clause by barring religious schools from receiving public tuition-assistance funds. Carson also rejected any distinction between discrimination based on religious status and discrimination based on religious use—i.e., the use of funds for religious purposes such as promoting a particular faith or providing religious instruction.

C. Tennessee's Public Charter School Program Likely Offends Free Exercise.

The relevant provisions fall into three categories:

(1) The "Sponsor Provision" provides that public charter school sponsors may not include a "religious[] or church school" or a body that "promote[s] the agenda of any religious denomination or religiously affiliated entity," Tenn. Code Ann. § 49-13-104(16);

(2) the "Operation Provision" provides that a "public charter school shall . . . [o]perate as a public, nonsectarian, nonreligious public school," id. § -111(a)(2); and

(3) the "Schools Provisions" provide that "religious[] or church school[s] shall not establish a public charter school" and that a "parochial" school shall not be allowed to convert to charter status, id. § -106(c), (j)(7).

While the Sponsor and Operation Provisions impose special disabilities on religious entities, the Schools Provisions do not. If subjected to strict scrutiny, the Sponsor and Operation Provisions would be unlikely to survive review.

1. The Sponsor and Operation Provisions penalize the free exercise of religion.

Both the Sponsor and Operation Provisions "put[]" otherwise qualified religious sponsors "to a choice between being religious or receiving government benefits." The Act, then, "expressly discriminates against otherwise eligible" participants "by disqualifying them from a public benefit solely because of their religious character." Both provisions, then, "put [religious entities] to a choice": They may participate in the public charter school program if they check their religious mission at the school door, or they must turn down the public funding associated with operating a public charter school.

2. The Schools Provisions do not impose special religious disabilities.

The Schools Provisions do not single out religious entities for special treatment. While "religious[] or church school[s] shall not establish a public charter school," nor shall any "other private . . . school" or "home school." So these provisions do not treat religious entities "unequal[ly]" from similarly situated non-religious entities. Instead of religion, the target of all of these provisions appears to be pre-existing schools.

3. The Sponsor and Operation Provisions likely would not survive strict scrutiny.

a. The Establishment Clause directs that "Congress shall make no law respecting an establishment of religion." By its text, the Clause applies only to "Congress," not the States. While the Supreme Court has departed from the text and history to incorporate the Establishment Clause against the States, it recently "instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings," Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022). Even accepting the Clause's incorporation against the States, the history-driven test from Kennedy makes clear that the Establishment Clause poses no barrier to religious charter schools.

No Founding-era "'historic and substantial' tradition supports [the] decision to disqualify religious schools from government aid." As the Court explained in Espinoza, Founding-era governments "provided various forms of aid to religious schools." A practice of prohibiting public support of "sectarian" schools emerged in the second half of the 19th century. At that time, "'sectarian' was code for 'Catholic.'" Many of the bars on state funding of sectarian schools were "'born of bigotry.'"

b. Under the Court's free-exercise trilogy, distributing public dollars to religious schools through the neutral administration of the public charter school program would not violate the Establishment Clause. The Court has "repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs." "Any Establishment Clause objection" to state funds going to religious charters would be "particularly unavailing because the government support [would] make[] its way to religious schools only as a result of [Tennesseans'] independently choosing to [enroll at] such schools." Locke v. Davey, 540 U.S. 712, 719 (2004); Zelman v. Simmons-Harris, 536 U.S. 639, 649-53 (2002).

c. The contrary arguments lack merit. In Drummond, the challenger argued that public charter schools are state actors or government entities. That two-step gets the analysis backwards.

First, "public" charter schools are not governmental entities that lack protection under the Free Exercise Clause. For constitutional purposes, the divide between private and government entities generally turns on two considerations: whether a body is "Government-created" and whether it is Government-"controlled." Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 394-95 (1995). Applying these principles here, Tennessee public charter schools are neither State-created nor State-controlled.

Start with creation. While it is true that the Act authorizes public charter schools in Tennessee, each individual school owes its creation to the school's sponsor. A state or local governmental entity may authorize the creation of a public charter school, but it is the sponsor that does the creating.

Next, governance. Tennessee public charter schools are governed by privately appointed governing bodies associated with the non-profit sponsor. Tennessee charter school governing bodies are entirely private. The supervisory role does not amount to the level of control exercised by the government in Lebron and Biden. Cf. S.F. Arts, 483 U.S. at 544 ("extensive regulation" alone "does not transform the actions of the regulated entity into those of the government").

Second, Carson's statement that States "may provide a strictly secular education in its public schools" did not establish an alternative framework for assessing whether an entity has free exercise rights. To the contrary, Carson made clear that the free exercise trilogy cases "turn[] on the substance of free exercise protections, not on the presence or absence of magic words." 596 U.S. at 785.

Tennessee "need not subsidize" privately run charter schools, but having "decide[d] to do so, it cannot disqualify" some schools "solely because they are religious." Carson, 596 U.S. at 785 (quoting Espinoza, 591 U.S. at 487). Under current U.S. Supreme Court precedent, then, Tennessee's bar on religious charter schools likely violates the Free Exercise Clause of the First Amendment.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

VIRGINIA N. ADAMSON
Assistant Solicitor General

Requested by:
The Honorable Michele Carringer
State Representative District 16
Cordell Hull Office Building
425 Rep. John Lewis Way N.
Nashville, Tennessee 37243