Private Disestablishment

Authors

• Gaurav Mukherjee

Abstract

Should public funds support religious schools? The Supreme Court’s 4–4 decision in St. Isidore of Seville Catholic Virtual School v. Drummond may have blocked America’s first religious charter school but set no precedent, leaving core constitutional questions unanswered. This Article argues that St. Isidore illustrates “private disestablishment,” where religious institutions claim private status while exercising public power—allowing them to access public benefits without accepting public constraints. Blurring the boundary between private and public allows these entities to secure public benefits like funding and regulatory advantages while avoiding obligations that typically constrain public institutions, such as non-discrimination or religious neutrality.

The Court’s deadlock illustrates the difficulty of reconciling its expanding Free Exercise jurisprudence with a fragmented state action doctrine. Recent decisions have recast traditional rules limiting religious institutions’ access to public funding as impermissible discrimination. But those cases have involved clearly private institutions. Charter schools, by contrast, are statutorily public, yet often operate with the autonomy of private actors. Religious charter schools thus expose the instability of a legal regime that treats institutional form as determinative while overlooking function.

This Article first explains how charter schools’ structural hybridity enables contradictory legal positions—treated as public when seeking funding and private when resisting regulation—a tension the Court’s split in St. Isidore leaves unresolved. Second, it shows how variations in states’ charter regimes complicate uniform constitutional analysis. Finally, it provides an account of private disestablishment’s broader consequences for federalism and the civil rights of both students and teachers. My analysis illuminates a broader transformation in the ways law mediates between public responsibility and private authority. The Court’s deadlock in St. Isidore underscores the constitutional uncertainty surrounding religious charter schools and other hybrid institutions.

This Article offers, for the first time, an analytic framework for resolving Religion Clause disputes involving hybrid institutions. I argue that constitutional accountability should attach when religious entities are delegated core public functions and exercise exclusive control over their delivery. I further identify factors, such as insulation from democratic oversight, strategic use of legal form, and limited alternatives for affected individuals, that heighten the need for constitutional constraints. Finally, I propose a set of decision rules to guide courts in applying this framework with consistency. This approach prevents entities from strategically exploiting public-private boundaries to maximize authority while minimizing accountability.

The stakes are significant. The Court’s eventual resolution will determine whether the Constitution applies to all entities exercising government power—or only those that are formally public. If religious institutions can run public schools while claiming exemption from constitutional norms, that logic could extend across other privatized domains, from foster care to emergency housing. The result would upend longstanding balances between religious liberty and civil rights in publicly funded systems.

Rights

2026 Brigham Young University Law Review

Recommended Citation

Gaurav Mukherjee, Private Disestablishment, 51 BYU L. Rev. 1569 (2026).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss6/7