Knowledge is power: assessing the legal challenges of teaching character in charter schools.

• Author: Wolf, Lilah Hume

CHARACTER: AN INTRODUCTION I. TEACHING CHARACTER AND CHARTER EDUCATION: THE LEGAL FRAMEWORK A. Practice, Don't Preach: First Amendment Challenges B. The Risks of Inclusive Education: Statutory Challenges 1. Gun-Free School Zones 2. Expanding "Zero Tolerance" II. PLAYING THE LOTTERY: CHARTER SCHOOLS' UNIQUE IMMUNITY A. Ancillary Benefits of Results-Driven Decision-Making and Parental Inclusion B. Systemic Barriers to Suit III. DISCIPLINE & PUNISH: LIABILITIES OF INCLUSION A. Protect Our Children?: Barriers to Constitutional Claims Against Schools B. Compensating "Grievous Harm": Tort Claims Against Schools CONCLUSION CHARACTER: AN INTRODUCTION

"Persistence looks like not giving up when you try to sound out a word!"

"That's right, Camilla! (1) Persistence means stretching out that word long, like a piece of bubble gum from your mouth, till you figure out all the sounds! Persistence means never, ever giving up. What else does persistence look like?" The students share some more ideas. Each time a student speaks the word "persistence," he pounds one fist into the palm of his other hand, like a hammer steadily pounding a nail.

During my recent school visit to Los Suenos Academy, one of nine schools in the Rocketship Charter Network, kindergarten teacher Chelsea Graff's dedicated lesson on character proved but one of many means of teaching the school's core values of persistence, respect, responsibility, empathy, and environmental stewardship. Teachers refer to these character traits when disciplining students and mention the school's character values in students' report cards. (2) Posters detailing the school's core values line the hallways. Baskets of plush animals sit in the corners of each classroom. These are Kimochis, an Australian brand of educational toys that employ seven different stuffed animal characters to teach emotional intelligence and self-awareness, both important components of empathy. Each stuffed toy comes with a distinct personality description and representations of its most frequently experienced emotions in a pocket in its belly. Throughout the day, students are encouraged to go to the Kimochi corner to hold Bug--if feeling afraid--or Huggtopus--if feeling excluded. (4) A student self-identifying with Huggtopus has a "big, friendly personality" that at times may overwhelm others. (5) If the student is feeling her usual exuberant self, she may select Huggtopus' happy emotion. (6) If she is feeling ignored by students annoyed by her loud personality, she may select Huggtopus' frustrated emotion. (7)

At KIPP Washington Heights Middle School in Manhattan, character is taught even more overtly. In addition to dedicated bi-weekly character lessons, teachers provide students with regular character growth cards. (8) Modeled on traditional grades-focused report cards, these track student progress along each of seven character strengths: grit, zest, self-control, optimism, gratitude, social-intelligence, and curiosity. (9) Students work from their character report cards to develop goals. For instance, "bring in pencils every day" to demonstrate self-control, "raise my hand three times in class" to show zest. (10) Students celebrate one another for exhibiting the school's character values and ponder over their implementation during weekly small group meetings called trust circles. (11) Teachers also incorporate character strengths while teaching traditional subject areas; for instance, during a discussion in social studies of the Vietnam War, teachers ask why optimism might be at once a valuable and risky quality in a leader. (12) KIPP Washington Heights also incorporates character discussion into student discipline. Sixth grader Lilliana (13) used to sulk and talk back every time she was reprimanded in class, so Dean Ian Willey began bringing her to his office to discuss her behavior. (14)

I had her go through the character strengths that are on my wall and helped her to figure out what she needs to work on. We identified that grit means getting over things quickly. So today when she got [detention] ... I asked her if she sulked. She told me she was upset but didn't sulk or talk back. That's growth. (15) In many charter systems, administrators have also developed school policies that reflect the core values they seek to teach students. In lieu of at-home suspensions or out-right expulsions, deans now endeavor to use a so-called inclusive education model--employing detention and in-school suspension (16)--to address problematic school behavior, modeling persistence (17) and grit, (18) respectively. Character education therefore encompasses not only the teaching of specific character traits but also the policies schools adopt to encourage and exemplify character.

KIPP and Rocketship are not the only programs focused on character education. Since Paul Tough's article in the New York Times Magazine in September 2011 discussing KIPP's motivations and methods for teaching character in its classrooms, (19) character has pervaded the national discussion of elementary school pedagogy. In both private (20) and public schools, (21) mission statements now reflect the view that character traits can be taught. Many state legislatures have also adopted policies encouraging character education in public schools. (22) Little attention has been paid, however, to the legal questions associated with teaching character, in part because charter schools have, consciously or otherwise, been strategic in their promotion of character education and in part because reaction to character education has, thus far, been overwhelmingly positive. Moreover, many perceive character education as limited to the instruction of values themselves; such perception precludes focus on the modes, including disciplinary policies, through which schools teach character traits, further explaining the failure to consider legal liabilities.

In this Note, I focus on two areas of legal concern prompted by conversations with administrators at various charter schools: First Amendment challenges regarding character education, and liability associated with so-called "inclusive" education. I focus in particular on liabilities associated with inclusion because I believe they are not only oft overlooked but present bigger risks to charter organizations.

I proceed in three Parts, discussing in Part I the charter schools' posture within the public school district system and potential legal concerns related to character education, in Part II charter schools' unique immunity to suit, due in part to the ancillary and immunizing benefits of their policies and in part to systemic challenges potential plaintiffs face, and in Part III the limitations on any remaining common tort claims plaintiffs may seek to bring against charter organizations. I conclude that, while charters may face injunctions or revocation of their charters should their character teachings be challenged on First Amendment grounds, charters are frequently protected from civil liability for a variety of reasons. In addition to the unique immunities that derive from policies unrelated to character education, sovereign immunity and the difficulties of proving school negligence most likely protect charters from conventional tort claims. Nonetheless, charters possess opportunities through which they might better protect themselves from civil action. Throughout this Note, I strive to highlight means by which charter schools might more proactively shield themselves from suit given their unique existence as part of and apart from the public school system.

1. TEACHING CHARACTER AND CHARTER EDUCATION: THE LEGAL FRAMEWORK

   The first law allowing charter schools was passed in Minnesota in 1991, (23) with the goal to "improve pupil learning," "encourage the use of different and innovative teaching methods," and "create new professional opportunities for teachers, including the opportunity to be responsible for the learning program at the school site." (24) Since then, Washington DC and forty-two states have passed laws permitting the creation of charter schools, (25) many of these laws explicitly articulating a similar commitment to charter schools' innovative programming and related autonomy. (26) As such, while charter laws vary by state, charter schools are largely exempt from laws governing typical public school districts, allowing charter school teachers and administrators the independence to create and enact their own policies in keeping with a charter pre-approved by the state's relevant authority. (27) Furthermore, charter schools are schools of choice, meaning that parents elect to send their children there, (28) unlike traditional district public school districts that largely determine student attendance based on geography. Both characteristics serve to place charters in a legal category of their own, somewhere between public and private schools.

   Despite differentiation between traditional public and charter schools, certain restraints remain. Because charters are public schools, they are technically subject to the same constitutional limitations and federal law imposed on public school systems. In this Part, I explore two such restraints: the First Amendment prohibition on religious indoctrination and the statutory reporting and expulsion requirements related to school safety. In turn, I explore the impact each restraint might have on both the explicit content of and broader operational policies related to character education.

   1. Practice, Don't Preach: First Amendment Challenges

      While charter schools enjoy broad independence, certain limits on traditional public schools extend, including a First Amendment prohibition on religious education. As a result, were character education ever construed as religious in nature, it would be prohibited. In fact, initial attempts at legislating character education in public schools failed in the 1990s because the word "character" carried moralistic or...