Law & Courts

Church-Run Charters? High Court Arguments Stir Discussion

By Evie Blad — February 11, 2020 7 min read
BRIC ARCHIVE
  • Save to favorites
  • Print

Could a closely watched U.S. Supreme Court case clear the way for charter schools run by churches and other religious organizations?

Justice Stephen Breyer raised the question last month at arguments for Espinoza v. Montana Department of Revenue, one of the most significant K-12 cases before the high court in years.

The debate over religious charter schools has been active in a small corner of the school choice advocacy world for years.

“Overriding all objections is America’s woeful lack” of space in quality schools, the Thomas B. Fordham Foundation’s then-President Chester E. Finn, Jr. wrote in a 2003 Education Week commentary. “Every possible asset should be brought to bear on the creation of more. Religious charter schools deserve consideration.”

Here’s what you need to know about the discussion.

At the Supreme Court on Jan. 29, a group of parents joined by the Trump administration argued that the state of Montana committed unconstitutional discrimination against their personal religious views when it determined that a small tax credit for private school scholarship programs could not be used to fund scholarships to religious schools. In making that determination, the state’s department of revenue had cited a state constitutional provision that bars public funds for religious schools.

Religious Discrimination?

If the court takes the most dramatic action by declaring that provision unconstitutional, would that open up further state support of religious schools in other areas? That was the gist of a jumbled line of questioning between Breyer and Jeffrey Wall, the principal deputy U.S. solicitor general.

The First Amendment is designed to avoid preferential treatment for religion, but it does not prohibit “a generally available public benefit” from going to religious organizations, Wall argued.

“Say in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system, and a lot of them give a lot of money to charter schools,” Breyer said. “Now, they don’t give money to Catholic schools. All right? Now if we decide you’re right, does that all change?”

From there, Wall seemed to struggle to understand the nature of Breyer’s question, and Breyer struggled to clarify. Seemingly returning to the issue of tax credits, Wall cited a 2017 decision, Trinity Lutheran Church of Columbia v. Comer, in which the high court ruled that Missouri had violated the Constitution’s guarantee of free exercise of religion when it denied a church participation in a state program to improve the safety of playgrounds.

“When the court said you can’t deny a generally available public benefit to an entity that’s otherwise qualified, based solely on its religious character or nature, that rule applies equally to schools as to playgrounds,” Wall said.

Charter schools are publicly funded schools that are managed independently by third-party organizations.

Could a church or other religious organization attempt to use the precedent of Trinity Lutheran, or a potential broad ruling in the Montana case, to argue that it is entitled to operate a charter school? Perhaps so, some legal experts said. But that charter school would not be able to offer a religious education, despite being run by a religious organization.

“Public charter schools are publicly funded schools, and as long as they are state schools, they are government schools; they must comply with the Constitution, which would say the government cannot itself advance religion, interfere in religion, pick and choose between religions,” said Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty.

“If it’s a charter school that is just like any private parochial school, and they’re going to teach Catholic doctrine ... I think it would be unconstitutional,” Hollman said. “If it was just in name only and it was really a school that was no different—there was no religious education—I think that they’d have a better case under Trinity Lutheran.”

Such arguments would also depend on the specifics of a state’s charter school law, said Martha McCarthy, a professor of educational leadership who teaches school law at Loyola Marymount University. A religious organization would have to argue that it was identical to qualifying charter organizers in every way except religious affiliation, she said.

Complicated Question

The Baptist Joint Committee joined in an amicus brief in the Montana case, arguing that laws prohibiting public aid to religious schools are necessary to prevent public intrusion into religion. Hollman said Breyer’s questions about charter schools demonstrate the kinds of complicated questions that emerge from cases about the line between church and state.

“As a religious liberty organization and as someone who’s worked in this field for a long time, I think it’s very dangerous to argue that religion is no different from other endeavors and should be treated the same,” she said.

Others threw cold water on the idea of religious institutions receiving charter school funds. The federal Every Student Succeeds Act defines a charter school as a public school that “is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution.”

The Montana case centers on the religious freedom of the parents who direct the scholarship funds, not the schools that receive them, said Jeanne Allen, the CEO of the Center for Education Reform, an organization that supports expanding school choice. So it’s not likely that something as dramatic as Breyer suggested would result from a ruling in the parents’ favor, she said.

Still, throughout the arguments, both justices and attorneys bounced back and forth in discussions of whose religious liberty was at stake in the case: the parents who direct the scholarship funds, the contributors who receive the tax credits, or the religious schools that may accept students using those scholarships. How the court defines the religious liberty issue may be a factor in how expansively its ruling is applied to future church-state questions.

Some Precedent

There is some precedent for the discussion of religion and charter schools. But even charters with loose connections to religious groups insist they do not offer religious instruction.

Some Roman Catholic schools have closed and allowed nonreligious charters to open in the same place, leasing their buildings from the church and sometimes even operating under a similar name.

In 2018, a network of struggling Memphis parochial schools that served mostly low-income students closed, and the president of a local Catholic university formed a charter school organization to operate those schools in its place. The schools faced questions when a morality clause in their building lease forbid them from teaching anything considered “gravely immoral” by the Catholic Church. Federal officials later said that clause did not violate federal rules.

In addition, networks of charter schools in the U.S. have been linked to a Turkish cleric in news reports, though many of those schools deny those affiliations and insist they provide no religious teachings to their students.

A New York Hebrew-language charter school offers lessons in language and culture, but insists teachers cannot “encourage or discourage religious devotion.” Similar schools operate around the United States, with themes like Greek Culture.

The American Civil Liberties Union sued Tarek ibn Ziyad Academy, a now-defunct Arabic language charter school in Minnesota, arguing that it promoted Islam using public funds. The school later settled with the ACLU.

Some are doubtful that charter schools operated by faith-based or faith-affiliated organizations can avoid any kind of religious teaching or influence.

“The game they are playing is that you can separate who runs a school from what happens in a school,” said Benjamin Justice, an education professor and historian at Rutgers University who studies the history of religion and public schools. “If you even think abut that for more than a minute, it becomes apparent that that is a very, very fictitious line of separation.”

States have an interest in limiting public funding to religious schools that is not driven by malice or unlawful discrimination, Justice argued. In the 19th century, when people were more scattered in rural areas, “you really had to have a school that served all religious groups or you couldn’t have a school,” he said. And schools also serve a public interest of encouraging the exchange of ideas and social harmony, Justice said.

“How can you create a citizenry when you are offering a system of education that doesn’t even teach children that there is a shared reality?”

A version of this article appeared in the February 12, 2020 edition of Education Week as Church-Run Charter Schools? Court Arguments Stir Discussion

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Recruitment & Retention Webinar
Combatting Teacher Shortages: Strategies for Classroom Balance and Learning Success
Learn from leaders in education as they share insights and strategies to support teachers and students.
Content provided by DreamBox Learning
Classroom Technology K-12 Essentials Forum Reading Instruction and AI: New Strategies for the Big Education Challenges of Our Time
Join the conversation as experts in the field explore these instructional pain points and offer game-changing guidance for K-12 leaders and educators.
Education Webinar The K-12 Leader: Data and Insights Every Marketer Needs to Know
Which topics are capturing the attention of district and school leaders? Discover how to align your content with the topics your target audience cares about most. 

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Appeals Court Blocks District Policy That Requires Students to 'Respect' Gender Identity
The federal appeals court panel holds that the policy is likely unconstitutionally vague under the First Amendment.
4 min read
A poster is held at the Iowa Queer Student Alliance "We say gay" rally inside the Iowa State Capitol on March 8, 2023, in Des Moines, Iowa.
The Iowa Queer Student Alliance holds a "We say gay" rally inside the Iowa State Capitol on March 8, 2023, in Des Moines. The legislature passed a bill last spring that prohibits school districts from providing false or misleading information to parents regarding their children's gender identity. A federal appeals court ruled that the new law made parts of a lawsuit against the Linn-Mar Community School District's policy moot, though the court revived a challenge to one part of the policy.
Margaret Kispert/The Des Moines Register via AP
Law & Courts School Districts Are Poised For a $23 Million Payout in New Opioid Settlement
If the settlement is approved, school districts will be able to apply for grants to address the effects of opioids on their students and staff.
4 min read
Sa Thao signs the 2022 Mobile Recovery National Bus during a stop at the Capitol in Sacramento, Calif., on Sept. 7, 2022. Across the country, people in recovery and relatives of those killed by opioid overdoses are pressing for roles in determining how billions in opioid settlement money will be used. That push is one of the missions of the monthlong nationwide bus tour. Thao was addicted to methamphetamine but through recovery programs has been clean for 18 months.
Sa Thao signs the 2022 Mobile Recovery National Bus during a stop at the Capitol in Sacramento, Calif., on Sept. 7, 2022. Across the country, people in recovery and relatives of those killed by opioid overdoses are pressing for roles in determining how billions in opioid settlement money will be used.
Rich Pedroncelli/AP
Law & Courts In New Term, Supreme Court Set to Tackle Case on School Board Members' Social Media Use
The docket for education cases looks more modest than last term, but cases on magnet schools and transgender students could be added.
11 min read
The Supreme Court is seen in Washington on Sept. 25, 2023. The new term of the high court begins Oct. 2, 2023.
The Supreme Court is seen in Washington on Sept. 25, 2023. The new term of the high court begins Oct. 2, 2023.
J. Scott Applewhite/AP
Law & Courts Football Coach Who Won Supreme Court Prayer Case Has Resigned
The coach waged a seven-year legal battle to be rehired.
2 min read
FILE - Bremerton High School assistant coach Joe Kennedy takes a knee and prays at the 50-yard line after Bremerton's win over Mount Douglas in a high school football game at Bremerton Memorial Stadium in Bremerton, Wash., on Sept. 1, 2023. Kennedy, the praying football coach who had a long legal battle to get his job back, resigned Wednesday, Sept. 6, 2023, after his first game back on the job. He cited multiple reasons for his resignation including taking care of an ailing family member out of state. (Meegan M. Reid/Kitsap Sun via AP, File)