Churches and charter schools

Sugarman: "contrary to today’s conventional wisdom, allowing religious schools to become charter schools is not clearly a violation of the 'establishment clause.' "
Sugarman: “contrary to today’s conventional wisdom, allowing religious schools to become charter schools is not clearly a violation of the ‘establishment clause.’ “

The connection between charter schools and religion continues to generate the occasional headline, with the most recent coming last week when the New York Times carried a Texas Tribune story about Texas charter schools leasing space from churches. Some of those interviewed objected to the entanglement of the schools with the churches and the “benefits” that churches were gaining from these arrangements.

I think these concerns are misguided, given the state of charter facilities funding and the facts on the ground about most of these relationships. At the same time, I think the legal door is open in some states for the possibility of faith-based charter schools, which would be a step forward for school choice and education reform. Let me explain.

1. The Present

At the moment, in all states that permit charter schools as part of their public school system, charter schools may not be religious schools. Put simply, this means that religion may be no more a part of these schools than it is in other (traditional) public schools. School prayer is prohibited. Students and teachers may not be selected on the basis of their or their family’s religious beliefs. The curriculum must be secular.

Finding a suitable place to locate charter schools is a widespread problem. Those who run charter schools have to pay for their facilities from the same funds that also pay for all the academic and other financial obligations, whereas public school facilities are financed separately, usually through general obligation bonds, paid by property owners in the school district until the facility is fully paid for. Many charter schools are in leased premises, unlike traditional public schools. This generally puts charter schools at a substantial financial disadvantage compared to their other public school counterparts.

In some places, as here in California, the local school district is supposed to offer suitable facilities to charter school operators, but in practice that often is a hollow requirement as the place or places offered are locations that are actually quite unsuitable. Sometimes school district leaders have nothing better to offer; other times, it seems they deliberately offer what they know will be rejected because they are hostile to charter schools taking away “their” pupils. Many instances of protracted litigation have occurred before charter schools have been able to secure facility agreements from school districts.

As a result, it is natural that charter school operators frequently turn to churches as potential landlords.

In inner cities, for example, many Catholic parish schools have been closed because the Catholic population has largely moved away and the local bishop feels he can no longer subsidize the education of mostly non-Catholic students in the neighborhood (although in pockets around the country this subsidy continues, and, for example, many Protestant African-American families are delighted to be able to have their children attend local Catholic schools).

Unsurprisingly, here in California numerous closed Catholic schools are now leased to charter school operators of all different sorts. In other situations, churches have rooms in their premises that they may use for Sunday schools and other religious purposes outside of the school day.  Some of these facilities can adequately serve charter schools during the school week.

It seems improper to object that religious groups “benefit” from the rent they receive from charter school tenants for an asset they own. If a monastery has a bread-baking business and wins a contract to supply bread to a public school lunch program, it would be wacky to object that this transaction inappropriately benefits the related church. To be sure, it would be wrong for a charter school to pay “excessive” rent, using school funds in effect to subsidize the church. Hence, under today’s rules, some sort of arms-length distance between the church landlord and the charter school might be appropriate.

And so long as the educational program is run by the head of the charter school, and the community understands the church is merely the landlord, this should not be viewed as inappropriate entanglement of government and religion. To object to a charter school head who personally has strong religious faith and who necessarily carries her beliefs with her 24/7, as a leading “separationist” interviewed for the New York Times story did, seems altogether wrongheaded. Regular public school principals may also be deeply religious, yet precluding such individuals from serving in that role would be intolerable religious discrimination.

2. The Future

Charter schools exist because most states believe that offering parents the choice of publicly supported, autonomously operated schools is healthy for education. While charter schools are subject to a range of regulations (that vary from state to state) a fundamental principle of the movement is that, while certain basic curricular subjects will, of course, be taught, in important respects the schools get to decide what to teach and how to teach it (although often the state will insist that charter school pupils take tests that traditional public school pupils also take, as a way of letting both parents and charter school authorizers know how the students are doing on such tests).

But the one sort of school that may not apply to be a charter school, as I noted at the outset, is a religious school. This appears to be “viewpoint discrimination” of the sort that normally would be presumptively unconstitutional under the “free speech” clause of the First Amendment. A legal justification for such viewpoint discrimination is that it is actually trumped by the “establishment clause” of the First Amendment, which prevents the government from establishing any religion. But contrary to today’s conventional wisdom, allowing religious schools to become charter schools is not clearly a violation of the “establishment clause.”

The U.S. Supreme Court, in the 2002 Zelman v. Simmons-Harris case, upheld the Cleveland “voucher” plan. But it does not quite address this question because there the money went to parents, whereas under charter school programs it goes directly to schools. Justice O’Connor, though, who made much of this distinction in the Cleveland case, is no longer on the court, and perhaps there is a majority today that would not draw the line in that way. If this is correct, then it may no longer be permitted to preclude religious schools from applying for charters. The government does not today determine whether a charter school is a Waldorf school, a Montessori school, an agriculture curriculum centered school, or a school focused on aviation, just as it would not determine if it were to be a Catholic school or a Baptist school or a Jewish school. Private individuals, nonprofits corporations, universities, and other independent nongovernmental entities determine what kind of school a charter is to be and how it is to operate within the requirements of a state’s legislation.

Perhaps religious schools could still be excluded in states whose own state constitutions forbid such arrangements. That would have to be explored further. But elsewhere, in a thriving charter school state without such a state constitutional hurdle, the time might soon be ripe for a religious school to seek to overcome the current barrier. This is a legal project which the American Center for School Choice is undertaking.

Note that while success with such a lawsuit would mean a charter school curriculum could be a religious one, such a charter school would still have to comply with other requirements applicable to other charter schools, including among other things non-discrimination among applicants on the basis of religion, having their pupils take state tests, and so on. This would also include compliance with conflict of interest statutes and assurances that these schools paid no more than fair market rent for their premises. This is a requirement that a church seeking to have an affiliated charter school on its premises should happily support if it is truly interested in education.

Some religious schools would not want to become charter schools, just as some religious schools now oppose voucher plans and would not accept vouchers if their city or state had (or has) such a plan. But many religious schools would be happy to participate in the charter school regime as a way of maintaining financial viability, improving their educational offering through increased spending on their children, and relieving parents of having to pay for their children’s education. Education systems throughout the industrialized world, including much of Europe, offer parents the choice of religious schools that are publicly supported in the same manner as other schools are.

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BY Stephen D. Sugarman

Professor of law, University of California at Berkeley, author with John E. Coons of Private Wealth and Public Education and Education by Choice