THE HUMBLE FORM 990: CHECKING CHARTERS IN A POST-ESPINOZA WORLD.

State and federal prohibitions on religiously affiliated charter schools have remained undisturbed since charter schools first emerged in the 1990s. Three recent Supreme Court cases have raised questions about that paradigm. Carson v. Makin, Espinoza v. Montana Department of Revenue, and Trinity Lutheran Church v. Comer interpret the Free Exercise Clause as prohibiting states from denying a qualified religious entity a public benefit solely because of its religious character. At first glance, it appears that the practice of granting school charters to secular non-profits while denying such charters to religiously affiliated non-profits violates this principle, rendering these longstanding statutory prohibitions unconstitutional. This Article argues against such an interpretation. Because religious organizations are exempt from the requirement that non-profit organizations file an annual information return -- the 990 -- with the IRS, religiously affiliated charters would be free from the sole oversight mechanism applicable to charter schools. The 990 is a vital tool in revealing charter school fraud and self-dealing, which has become a real problem with the emergence of "sweep contracts" -- arrangements in which charter school operators siphon off public funds to for-profit management companies for personal gain. Religious organizations operating charter schools would have unfettered discretion over public funds. This, in turn, would have the effect of privileging religion over non-religion and placing a governmental function in the hands of a religious organization, which violates the Establishment Clause. Because compliance with the Establishment Clause is a compelling governmental interest, such prohibitions are constitutional. Nonetheless, this Article suggests that expanding the 990 requirement to include religious organizations may be a less burdensome alternative to their continued enforcement. [ABSTRACT FROM AUTHOR]