Is there a place for religious charter schools?

• Author: Hillman, Benjamin Siracusa

NOTE CONTENTS INTRODUCTION I. DEFINING AND EXAMINING RELIGIOUS CHARTER SCHOOLS A. Definitional Frameworks B. Tarek ibn Ziyad Academy, Inver Grove Heights, Minnesota C. Ben Gamla Charter School, Hollywood, Florida II. THE EROSION OF IDEOLOGICAL AND LEGAL OBJECTIONS TO RELIGIOUS CHARTER SCHOOLS A. Changes in Public Schooling and Religious Group Participation in the Public Sphere B. The Supreme Court's Evolving Establishment Clause Jurisprudence C. The Myth of Value Neutrality D. Benefits of Religious Charter Schools III. PRACTICAL OBJECTIONS AND THEIR CONSEQUENCES A. Objections to Religious Charter Schools B. Finding Appropriate Spaces for Religious Charter Schools CONCLUSION INTRODUCTION

Religion has long played a divisive role in American education. Since America's Founding, political leaders have worried about how to create an American educational system free of sectarian strife. (1) The plural system of sectarian schools that existed at the Founding was supplanted with publicly funded "common schools" by the mid-nineteenth century. (2) Promoters billed these schools as offering children a secular education free from the pressures of religious conflicts. Yet from the start, common schools drew their ideology from the teachings of mainline Protestantism. (3) The creation of the common school, therefore, did not lead to the disappearance of religious schools or of the conflict over the role of religion in education. (4) Catholics perceived the Protestant influence and created their own school system in the late nineteenth century. Protestants, in turn, successfully advocated for "Blaine Amendments" to state constitutions that prevented any state funding of religious schools. (5)

In the second half of the twentieth century, advocates of secular education and religious traditionalists alike turned to the courts to arbitrate their disputes over the proper role of religion in public education. (6) Although a legacy of Protestant influence remains, these Supreme Court decisions have helped to secularize American public education. By the end of the twentieth century, a robust constitutional regime governing religious expression in public schools appeared to be in place.

Over the past several decades, however, school choice has significantly changed the structure of American schooling. (7) In particular, publicly funded, privately managed charter schools have made the school offerings of many urban districts unprecedentedly diverse. (8) No longer must those attending urban public schools go to a neighborhood school or choose only between undifferentiated generalist schools; today, a menu of specialized offerings exists, from Afro-centric schools to those with a focus on art or social change. (9)

Charter schools continue to cause controversy even as their numbers increase and the first charter schools approach the start of their third decade. (10) Each state defines "charter school" somewhat differently, but under the laws of most states, charter schools are publicly funded, privately run, and organized as nonprofits or similar entities, subject to only limited oversight and exempt from most of the state statutes and regulations governing public schools. (11) Proponents of charter schooling see this autonomy as charter schools' main benefit, while opponents lament the loss of public accountability that accompanies privatization. Both sides debate whether charter schools improve educational outcomes or merely drain money from resource-starved traditional public schools. (12)

Given that charter schools provide private groups the chance to get involved in public education, it was only a matter of time before religious groups sought to provide educational services--whether to their own adherents or to others--at public expense. In recent years, charter schools that are self-consciously centered around Muslim, Jewish, and Christian values have sprung up. (13) These "religious charter schools" differ significantly from private religious schools in that they purport to comply with the Establishment Clause's requirements for public schools, while simultaneously reflecting the values and culture of a particular religious group. (14) Religious charter schools raise difficult constitutional, social, and political questions, which courts and the legal academic literature have only begun to explore. (15)

Allowing religious groups to become charter school providers complicates the controversy surrounding charter schools. Americans have long been suspicious of public funding for religious education. (16) After funding overtly religious schools for half a century, mid-nineteenth century America decided against public funding. (17) Religious charter schools, then, stir deep social and constitutional anxieties. We fear that giving charters to religious organizations will undermine public schools as incubators of democracy (18) or erode the wall of separation between church and state. (19) We also fear that religious charter schools will indoctrinate students with religious dogma rather than just teach values and culture, and that they will promote intolerance, oppress nonadherent teachers and students, discriminate against potential attendees and employees, and segregate public schooling along religious lines. (20)

Religious charter schools also pose administrative problems with constitutional implications. Districts that can afford to support only a few religious charter schools risk violating the First Amendment if they favor some religious groups over others in the provision of charters. Districts may also feel pressure to police religious charter schools more closely than other charter schools to ensure that they comply with the First Amendment and nondiscrimination requirements. (21)

This Note explores what place, if any, religious charter schools should have in American education. Districts that cannot meet constitutional constraints with certainty should avoid creating religious charter schools. Nonurban or small districts in particular may not have the resources to fund a plethora of religious charter schools or to monitor their compliance with constitutional requirements. (22)

On the other hand, allowing religious groups to participate as educational providers within a broad program of choice makes sense in large urban districts with failing schools and an existing charter school program. These districts are best equipped to overcome the ideological, pragmatic, and constitutional objections to religious charter schools. As the districts most likely to have a diversity of religious groups coupled with a high rate of religious participation, (23) urban districts also stand to benefit most from religious charter schools. Religious charter schools enable members of religious minority groups to receive an education that reflects their own values. They give students the chance to benefit from the energy that religious groups bring to education and foster diverse educational opportunities within urban public school systems. The existence of a diversity of religious groups can help districts prevent any one religious group from becoming too dominant in its charter school program. The large number of schools in urban districts suggests that the threat of limited choice or of undermining other schools will be minimized. (24) Finally, the presence of an existing charter school program suggests that neutral criteria for charter school selection can be put into place.

This Note proceeds in several parts. Part I explores the concept of religious charter schools by setting forth definitional frameworks and examining two religious charter schools in depth. Part II explains that in today's diverse, choice-based educational universe, many of the ideological and legal objections to religious charter schools have little force. It first discusses the increasing acceptance of a role for religious entities in public education and the decline of universal public schooling. It then questions the assumption that the creation of religious charter schools represents a significant departure from a value-neutral ideal of public education, arguing that public education has always embodied majoritarian values. Finally, it articulates affirmative benefits that religious charter schools can provide in the appropriate setting. Part III addresses practical objections and considers how district size and diversity determine the feasibility and desirability of religious charter schools.

1. DEFINING AND EXAMINING RELIGIOUS CHARTER SCHOOLS

   This Part examines the religious charter school concept. Section I.A details the meaning of "religious charter school" and other important terms employed throughout the Note, highlighting the areas of law that shape these definitions. Sections I.B and I.C illustrate these definitions through the examples of Tarek ibn Ziyad Academy in Minnesota and Ben Gamla Charter School in Florida.

   1. Definitional Frameworks

      Because the concept remains new and continues to evolve, it is important to precisely define the meaning of "religious charter school." This Note uses "religious charter school" to mean a charter school operated by a religious organization or by a group of people bound by a common religious viewpoint. (25)

      Whether religious organizations can legally operate charter schools is primarily a question of state law and policy. Some state constitutions and statutes prohibit it. (26) Additionally, federal law requires that charter schools receiving federal funding be nonsectarian and not affiliated with religious institutions, so religious charter schools run by churches, synagogues, mosques, or other formal religious entities would be ineligible to receive federal funding. (27) In many areas chartering agencies, relying on the definitions in federal law as well as state laws and policies, have denied charters to religious organizations or groups of religious individuals. (28) Existing religious charter schools have...