Faith-Based Charter Schools: An Idea Whose Time Is Unlikely to Come

Article excerpt

Simply stated, the efforts of their supporters notwithstanding, (1) it is unlikely that faith-based charter schools, (2) which are opening as the number of religiously affiliated nonpublic schools declines, (3) can survive judicial scrutiny. Moreover, even if religious charter schools, whether Catholic, (4) Christian, (5) Jewish, (6) or Muslim, (7) can withstand challenges in federal courts, (8) it is likely that they would be struck down in state courts due to significant state constitutional restrictions (9) forbidding aid to religious institutions. Further, overlapping statutory limits typically prevent religious entities from operating charter schools, (10) require that they be nonsectarian in nature, (11) and/or restrict them to operating in nonsectarian manners. (12)

As an initial matter, it is important to note that the charter school movement, which began in 1991 in Minnesota, (13) has spread to 40 states plus the District of Columbia and Puerto Rico. (14) Charter schools, which are public schools of choice, are typically operated as not-for-profit organizations, essentially functioning as independent districts consisting of single schools, by private groups including parents either independently or occasionally in conjunction with public institutions such as universities.

In return for being exempted from many state regulations, charter schools are accountable for the academic achievement of their students. While charters vary in duration, they typically range from 3 to 5 years in length. (15) When contracts expire, depending on state law, charters can be renewed or terminated. Charter schools, although free from many state rules with regard to staff and curricular issues, remain subject to federal and state antidiscrimination laws such as those dealing with students with disabilities and employment. In addition, charter schools typically cannot be operated by religious groups. (16) Of course, significant questions remain over the extent to which faculty and staff in faith-based charter schools may actually teach about the religious beliefs and practices of their sponsors.

In light of the legal and educational issues surrounding the status of religious charter schools, this article is divided into two parts. The first section reviews key litigation addressing the parameters of public aid to religiously affiliated nonpublic schools because these cases provide the necessary background should judicial challenges arise to faith-based charter schools. (17) This first part of the paper also briefly reviews Supreme Court cases that forbid prayer and/or religious activities in school, an essential part of daily activities in religiously affiliated nonpublic schools that cannot continue in faith-based charter schools. The second part reviews educational and policy considerations dealing with how publicly funded financial assistance might impact the religious missions and identities of religiously affiliated nonpublic schools that seek to become faith-based charter schools; this section also reviews the constitutionality of both state aid to religious charter schools and the acceptability, if any, of prayer and religious activities in these schools. The article rounds out with a brief conclusion.

Establishment Clause Litigation

Background

The extent to which jurisdictions can provide assistance to religious schools depends on judicial interpretation of the Establishment Clause of the First Amendment to the United States Constitution. Added to the Constitution in 1791 as part of the Bill of Rights, according to the 16 words of the religion clauses of the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." While the First Amendment only forbids Congress from making laws establishing religion, in 1940 the Supreme Court extended its reach to the states through the Fourteenth Amendment in Cantwell v. …