Academic journal article Harvard Law Review

Church, Choice, and Charters: A New Wrinkle for Public Education?

Academic journal article Harvard Law Review

Church, Choice, and Charters: A New Wrinkle for Public Education?

Article excerpt

In late August 2007, the Ben Gamla Charter School opened its doors to approximately 400 students in Hollywood, Florida. (1) Funded by public dollars and named for a first-century Jewish high priest who sought to introduce universal education, (2) the school aimed to provide "a first-class academic program" featuring "a unique bilingual, bi-literate, and bi-cultural curriculum, which prepares students to have an edge in global competition through the study of Hebrew as a second language." (3) Ben Gamla's director, Rabbi Adam Siegel, was unequivocal in explaining that the school was by no means religious. (4) Despite some raised eyebrows (5) and a brief suspension of Hebrew classes by the Broward County school district, (6) the charter school appears to be thriving, and its founder plans to open additional Hebrew-language charter schools in the coming years. (7)

The media attention it garnered notwithstanding, the Ben Gamla experiment is far from unique. Since the advent of the charter school movement in the early 1990s, a number of start-up schools have adopted similar, culture-oriented models. (8) These controversial schools straddle longstanding disputes over religion, pedagogy, and the public fisc that date to the earliest incarnations of the public school system. (9) From bitter conflict over the anti-Catholic character of the first common schools (10) to modern controversies over school prayer (11) and vouchers, (12) public education has historically been a flashpoint of the hoary church-state debate.

Against this backdrop, the potential for religiously themed charter schools--charters that carry the Ben Gamla model several steps further--offers a new wrinkle for consideration. Steeped in notions of educational choice, charter schools are publicly funded independent schools whose capacity for flexibility and entrepreneurship affords the possibility of "more innovative, effective, and accountable" leadership than that offered by traditional school districts. (13) Less than two decades old, the movement has garnered its fair share of skepticism, (14) while quickly establishing itself among the latest fixtures of public education reform. (15)

To date, charter schools that have tested the church-state line remain in the extreme minority. However, Ben Gamla and others of its ilk may represent the bleeding edge of a brewing constitutional controversy. (16) Indeed, the apparent consonance between the role of choice in the charter school model and in the Supreme Court's evolving interpretation of the Establishment Clause suggests that it is only a matter of time before the looming legal question is vigorously pressed. (17)

This Note explores the constitutional feasibility of religious charter schools. (18) Part I tracks the evolution of the charter school movement, relating the steady advance of the charter idea and noting the development of culture-specific charter schools. Part II turns to emerging Supreme Court doctrine on this issue, paying particular attention to the increasing centrality of private choice in the Court's Establishment Clause jurisprudence. Part III evaluates these trends in concert, offering an assessment of the constitutional concerns surrounding explicitly religious charter schools and observing that recent voucher decisions may have opened the door to religious charters. Part IV briefly concludes.

Although neutrality may well be "at times a graver sin than belligerence," (19) it is worth stating at the outset that this Note deliberately eschews normative questions as to the desirability of religiously themed public education. This is not to understate the significance of an issue that will surely continue to be discussed and debated in the media outlets, courtrooms, and town squares that serve as the cathedrals of American civic religion. It is only to limit this Note's focus to a question that can be introduced in the space available: might religious charter schools pass constitutional muster? …

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