THE EMERGING POSSIBILITY OF RELIGIOUS CHARTER SCHOOLS: A CASE STUDY OF ARIZONA AND MASSACHUSETTS.

• Author: Ryan, Kathleen C.

In July 2022, Arizona became the first state to create a universal school-choice program by passing the Empowerment Scholarship Account Program, an education savings account (ESA) for all students outside the public school system. (1) Over the past thirty years, Arizona has expanded its school choice offerings, which includes one of the largest charter school systems in the nation. (2) Today, students in Arizona have many choices for school, including traditional public schools, charter schools, magnet schools, secular private schools, and religious private schools. In the future, could one of those options be a religious charter school?

Justice Breyer's dissent in Espinoza v. Montana Department of Revenue warned of the emergence of religious charter schools: "What about charter schools?... [W]ould the majority's rule... trigger[ ] a constitutional obligation to fund private religious schools?" (3) Other scholars have considered this possibility, (4) most earnestly since the Supreme Court's Espinoza decision in 2020, (5) and one state attorney general proposed his own legal analysis last year. (6) The Archdiocese of Oklahoma City and the Diocese of Tulsa have submitted an application for a Catholic virtual charter school in Oklahoma and received approval in June 2023 to open in fall of 2024, with litigation sure to follow. (7)

There are two constitutional questions at stake. First, are religious charter schools constitutionally permissible, and second, if allowed, are they constitutionally required? Although these questions have been explored by scholars in the federal context, less attention has been given within the setting of state constitutions. Given the variations of charter-school laws and state constitutions regarding religious funding, each state's fact-specific situation could provide a different answer. This Note intends to explore the possibility of religious charter schools in the context of two states: Arizona and Massachusetts. Both states have charter schools as well as language in their state constitutions prohibiting the governmental funding of private schools. (8) However, each state's education system looks very different, especially concerning public funding for religious schools. (9) Arizona's encouragement of school choice suggests the state is a strong candidate for religious charter schools, while Massachusetts's Democratic politics makes it unlikely that school choice would be expanded, and even more so for religious schools.

This Note will first explain the general context of charter schools and why religious charter schools could be beneficial. Then, the Note will establish the legal framework supporting religious charter schools, particularly legal precedent on the state action doctrine and religious school funding. Then, the analysis will focus on the possibility of religious charter schools in Arizona and Massachusetts based on each state's political and legal context. Both states are likely required to support religious charter schools given their current secular charter school systems, but that outcome depends on the state constitutionality of each state's charter school system itself. Neither state is required to support religious charter schools if there are no secular charter schools. I argue that Massachusetts is more likely to act against religious charter schools, potentially by abolishing the existing charter school system, while Arizona would likely be required to have religious charter schools, assuming a resolution on its charter schools' legal status. This framework of analysis could be extended to other states, providing a starting point for the viability of religious charter schools elsewhere.

1. CHARTER SCHOOLS

   Since the first charter-school law was passed in Minnesota in 1991, (10) charter schools have become a significant part of the United States' education system. (11) Charter schools began as an effort to reform public education and provide public schools more flexibility and opportunity for innovation. (12) Supporters argued that if charter schools were independently managed, there would be more freedom to try new education and teaching strategies, which the public schools could then adopt. (13) Charter schools are "public schools" by name, but they are regulated differently from traditional public schools. Although there are similarities and patterns in how states structure charter laws, the specifics vary by state. Generally, when a state creates a charter-school law, the state gives power to "authorizers" who may grant charters. (14) The authorizers can grant charters to independent individuals or organizations that operate charter schools. (15) The charter schools then form governing boards to oversee the school, which are usually composed of private individuals, though some public officials may be included. (16) Charters are usually granted for a period of three to five years, and the state can revoke the charter if the school's objectives are not met. (17) While there are different levels of state supervision, charter schools are typically not directly controlled by the state. (18)

   In the last thirty years, charter schools have experienced significant growth. Charter schools are now present in forty-three states, as well as Guam, Puerto Rico, and Washington, D.C. (19) As schools of choice, any student in the state may attend a charter school. (20) In 2022, more than 3.7 million students attended one of 7,800 charter schools. (21) Over seven percent of public-school students attend a charter school, (22) though in some school districts that percentage is considerably more. (23) Charter schools enroll a higher percentage of disadvantaged students than traditional public schools, including students of color and low-income students. (24) Some charter schools specifically target students from disadvantaged groups. (25) Many urban areas have a higher percentage of charter schools, and charter schools are less likely to be found in rural areas. (26) In the last fifteen years, the number of charter schools has doubled, the number of charter-school students has tripled, and charter-school enrollment experienced one of its largest growth-rate increases during the COVID-19 pandemic (.27)

   The growth of charter schools reflects a growing demand for charter schools, and there are many reasons why a family may choose a charter school over a traditional public school. Some students are escaping failing public schools, or students may prefer the unique structure and opportunities that a charter school provides. (28) Parents may appreciate the parental involvement in the charter school or believe in the specific charter school's mission. (29) Today, there is a unique need for the characteristics that a charter school offers. Since 2020, schoolchildren have experienced significant learning loss as the result of the pandemic, which calls for innovative strategies to correct this decline. (30) As schools with the independence to go beyond traditional approaches, charter schools have a distinct opportunity to use experimental and inventive education ideas to help students through this learning crisis. In particular, charter schools tend to disproportionately enroll minority and low-income students, especially in urban areas, which are groups that experienced the greatest learning losses. (31) Reports and studies have found that charter schools report better outcomes for these groups of students, indicating that charter schools could play a valuable role, and have success, in addressing learning loss. (32)

   Despite their promises and potential, charter schools have not been without controversy. Those who object to charter schools argue that the schools take money away from traditional public schools, are not properly held accountable, and diminish teacher bargaining power. (33) Others criticize charter schools' approach to students with disabilities or maintain that the privatization of public schools leads to corruption and poor educational outcomes. (34) While some charter-school operators are well renowned, like KIPP, others have been criticized for poor performance. (35) The fight against charter schools has influenced the policy and expansion of charter schools, limiting charter-school growth in some areas. (36)

   Charter schools have particularly been controversial for a subset known as religious charter schools or ethnocentric charter schools. In this context, "religious charter schools" refers to charter schools that are founded by religious organizations, may exist in buildings that were previously private religious schools, or are informed by religious values, even though the school is not explicitly religious. (37) "Ethnocentric charter schools" is perhaps a better name, describing charter schools that are founded with a cultural identity, such as Native Hawaiian, Latino, or Jewish. (38) There is an obviously close relationship between religion and culture, so that even if the school is not explicitly religious, the school's culture may reflect religious values. (39) Additionally, these cultural schools sometimes provide time or opportunities for students to incorporate prayer and religious practices throughout their school day, even if the school and staff do not participate. (40) Some schools have faced lawsuits under the assumption that a "public" charter school incorporating religion in this way violates the Establishment Clause. (41) As a result, schools have closed or drastically changed their daily school practices to avoid legal action. (42) These ethnocentric charter schools can be valuable for cultural groups to create an educational environment that reflects the group's cultural norms and exposes the next generation to its heritage, particularly for marginalized groups whose culture is not part of the mainstream. (43)

   Although ethnocentric charter schools can fill a certain cultural role, charter schools that are explicitly religious could...