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IS IT UNCONSTITUTIONAL TO PROHIBIT FAITH-BASED SCHOOLS FROM BECOMING CHARTER SCHOOLS?

  • Stephen D. Sugarman (a1)
Abstract

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

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      IS IT UNCONSTITUTIONAL TO PROHIBIT FAITH-BASED SCHOOLS FROM BECOMING CHARTER SCHOOLS?
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References
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1 See, for example, N.Y. Educ. Law § 2854(2)(a) (2007); 15 Ariz. Rev. Stat. Ann. § 15–183(E)(2) (2017). Here is how the California Charter Schools Association describes them: Charter schools “are non-sectarian, tuition-free and open to any student who wishes to attend. Charter schools allow parents, teachers and the community to transform our public school system. Choice is a powerful tool for parents seeking access to quality education for their children.” “Understanding Charters,” California Charter Schools Association, accessed December 7, 2016, http://www.ccsa.org/understanding/faqs/. The “non-sectarian” requirement is contained in section 47605(d)(1) of the California Education Code.

Federal law recognizes that “Charter schools are established according to individual State charter school laws. The enactment of State charter school laws is solely a State prerogative, and the definition of a ‘charter school’ under State law is a matter of State policy.” However, in order for a charter school to receive funds under the Charter School Program created under the Elementary and Secondary Education Act (ESEA), a charter school must meet the definition in section 5210(1) of ESEA, which is as follows: “The term ‘charter school’ means 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.” “No Child Left Behind, Charter Schools Program, Title V Part B, Non-regulatory Guidance,” U.S. Department of Education, July 2004, 6–7, http://www2.ed.gov/policy/elsec/guid/cspguidance03.pdf.

2 The three main existing analyses of this question, as I see it, are Laycock, Douglas, “Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty,” Harvard Law Review 118, no. 1 (2004): 155246 ; Saiger, Aaron J., “Charter Schools, the Establishment Clause and the Neoliberal Turn in Public Education,” Cardozo Law Review 34, no. 4 (2013): 11631225 ; and Weinberg, Lawrence D., Religious Charter Schools: Legalities and Practicalities (Charlotte: Information Age Publishing, 2007).

For a call to legislatively embrace faith-based charter schools, see Andy Smarick, “Can Catholic Schools Be Saved?,” National Affairs, Spring 2011, http://www.nationalaffairs.com/publications/detail/can-catholic-schools-be-saved. For a somewhat anguished concern that the conversion of Catholic schools in low-income urban communities to nonsectarian charter schools (which is happening in some parts of the country) results in substantial public and private losses, while admitting that the conversion is sometimes necessary to keep the school community somewhat intact, see Garnett, Nicole Stelle, “Are Charters Enough Choice? School Choice and the Future of Catholic Schools,” Notre Dame Law Review 87, no. 5 (2012): 18911916 . Professor Garnett proceeds on the assumption that it currently is doctrinally impermissible for true Catholic schools to be charter schools in contrast to the position advanced here. For an early analysis arguing that it would be unconstitutional to exclude religious schools from school voucher programs (but not discussing charter schools), see Heytens, Toby J., “School Choice and State Constitutions,” Virginia Law Review 86, no. 1 (2000): 117–62.

3 See generally Coons, John E. and Sugarman, Stephen D., Education by Choice: The Case for Family Control (Berkeley: University of California Press, 1978).

4 See, for example, Salomone, Rosemary C., Visions of Schooling: Conscience, Community, and Common Education (New Haven: Yale University Press, 2000), chapters 5–6.

5 For those arguments see Coons and Sugarman, Education by Choice.

6 See ibid., 31.

7 See, for example, West, E. G., Nonpublic School Aid: The Law, Economics, and Politics of American Education (Lexington: Lexington Books, 1976); Coons and Sugarman, Education by Choice, chapter 1. See generally, Tyack, David B., The One Best System: A History of American Urban Education (Cambridge, MA: Harvard University Press, 1974); Glenn, Charles Leslie Jr., The Myth of the Common School (Amherst: University of Massachusetts Press, 1988).

8 “120 Years of American Education: A Statistical Portrait,” U.S. Government, National Center for Education Statistics (1993), 37, table 9, https://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=93442.

9 See generally Greeley, Andrew M. and Rossi, Peter H., The Education of Catholic Americans (Chicago: Aldine Publishing, 1966). For an indication of Catholic schools’ dominance of the private school sector in the United States during the 1960s, see “120 Years of American Education,” 49, table 15.

10 Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), chapter 6. For Friedman's first call for vouchers, see Friedman, The Role of Government in Education,” in Economics and the Public Interest, ed. Solo, Robert (New Brunswick: Rutgers University Press, 1955).

11 In New Kent County, Virginia, the school board embraced school choice by declaring that both of its two public schools (one previously all white and one previously all black) were to become open to everyone. But unless a family opted out, the child's default assignment would be to the all-white or all-black schools the child was already attending (or would have attended) under the de jure segregation regime. Unsurprisingly, after three years, on a one-by-one basis, no whites opted to send their children to the black school and only 15 percent of the district's African American families chose the white school for their children. In the 1968 case of Green v. County School Board of New Kent County, 391 U.S. 430 (1968), the U.S. Supreme Court struck down this “choice” plan and ordered the district to create what in fact were non-racially identifiable schools.

12 By contrast, some pragmatic legislators favored the aid to Catholic schools plans simply because they thought it would cost the taxpayers less than the cost of educating a flood of Catholic children who might come into public schools were their schools to financially collapse.

13 In Prince Edward County, Virginia, for example, the public schools were closed and white families were given vouchers to pay for the education of their children in all-white “segregation academies.” The U.S. Supreme Court invalidated this program in 1964 in the case of Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964). Under the banner of “family choice” private segregated schools were established throughout the South, and states responded with a variety of financial support strategies. Grant-in-aid plans were struck down by federal courts, see, for example, Lee v. Macon County Board of Education, 231 F.Supp. 743 (M.D. Ala. 1964) (striking down a grant-in-aid plan in Alabama), and the U.S. Supreme Court returned to the problem in Norwood v. Harrison, 413 U.S. 455 (1973), invalidating Mississippi's textbook aid to such schools.

14 For the most important cases, see Lemon v. Kurtzman, 403 U.S. 602 (1971), and Committee for Public Education v. Nyquist, 413 U.S. 756 (1973).

15 See, for example, Theodore Sizer and Phillip Whitten, “A Proposal for a Poor Children's Bill of Rights,” Psychology Today, August 1968, 58; Jencks, Christopher, Education Vouchers: A Report on Financing Elementary Education by Grants to Parents (Cambridge, MA: Center for the Study of Public Policy, 1970). For a recently presented overview of early school choice advocacy from the “left,” see Ron Matus, “California Dreamin’,” redefinED, December 16, 2015, https://www.redefinedonline.org/2015/12/how-the-left-almost-pulled-off-school-choice-revolution/#more-45913.

16 Bryk, Anthony et al. , Catholic Schools and the Common Good (Cambridge, MA: Harvard University Press, 2009). See also Meyer, Peter, “Can Catholic Schools Be Saved?,” Education Next 7, no. 2 (2007), http://educationnext.org/can-catholic-schools-be-saved/.

17 Food Stamp Act of 1964, Pub. L. No. 88–525, 78 Stat. 703. The food stamps program is now called the Supplemental Nutrition Assistance Program.

18 Created by adding Title XIX to the Social Security Act, 42 U.S.C. §1396, in 1965.

19 See generally, Coons, John E. and Sugarman, Stephen D., “Family Choice in Education: A Model State System for Vouchers,” California Law Review 59, no. 2 (1971): 321438 ; Coons and Sugarman, Education by Choice. For our earlier take on the issue under the heading “family power equalizing,” see Coons, John E., Clune, William H. III, and Sugarman, Stephen D., Private Wealth and Public Education (Cambridge, MA: Harvard University Press, 1970), 256–68.

20 For our detailed regulatory proposals see Coons and Sugarman, Family Choice in Education, and our later book, Coons, John E. and Sugarman, Stephen D., Making School Choice Work for All Families: A Template for Legislative and Policy Reform (San Francisco: Pacific Research Institute for Public Policy, 1999).

21 For a discussion of our funding level proposal, see Coons, John E. and Sugarman, Stephen D., Scholarships for Children (Berkeley: Institute of Governmental Studies Press, 1992), chapter 5. In this book we set out a draft constitutional initiative that would create the sort of school choice plan we long favored.

22 See, for example, the websites for the Friedman Foundation for Educational Choice (EdChoice), accessed December 7, 2016, http://www.edchoice.org/; The Alliance for School Choice, The American Federation for Children Growth Fund, accessed December 7, 2016, http://www.allianceforschoolchoice.org/; and the Center for Education Reform, accessed December 7, 2016, https://www.edreform.com/, which are three leading school choice groups. Friedman's campaign was given a substantial boost with the publication of Chubb, John E. and Moe's, Terry M. widely discussed Politics, Markets and America's Schools (Washington, DC: Brookings Institution Press, 1990), although the authors did not explicitly align themselves with Friedman's version of the voucher plan.

23 For a summary of our opposition to the two California initiative propositions, see John E. Coons and Stephen D. Sugarman, “It's Not a Good Choice for Our Poor Families,” Los Angeles Times, July 27, 2000.

24 For a description of the program (styled an “educational savings account” rather than a “voucher plan”) adopted via SB 302, as well as the application process, see State of Nevada Department of Education, accessed December 7, 2016, http://www.doe.nv.gov/Legislative/Education_Savings_Accounts/, and the Nevada State Treasurer, accessed December 7, 2016, http://www.nevadatreasurer.gov/SchoolChoice/Home/. For a news account, reporting that more than 3,000 families have applied for benefits that they had hoped would start to flow in 2016, as well as the lawsuits that have been filed against the plan, see Ian Whitaker, “Money Could Flow to Education Savings Accounts in February,” Las Vegas Sun, October 20, 2015. The Nevada plan was promptly challenged by the American Civil Liberties Union (ACLU) and allies, and in September 2016, the Nevada Supreme Court concluded that although the program is not in principle in violation of the Nevada constitution, the method of funding it is. See Jason Bedrick, “Nevada Supreme Court: Education Savings Accounts Are Constitutional, Funding Mechanism Isn't,” Cato at Liberty (blog) Cato Institute, September 29, 2016, https://www.cato.org/blog/nevada-supreme-court-education-savings-accounts-are-constitutional-funding-mechanism-isnt. Given the legal uncertainty of this plan, little more can be said about it for now.

25 Mason, Peter, Private Education in the EEC (London: Independent Schools Information Service, 1993); Mason, Peter, Independent Education in Western Europe (London: Independent Schools Information Service, 1997); “How Does School Choice Work in Other Countries?,” EdChoice, accessed December 7, 2016, http://www.edchoice.org/school_choice_faqs/how-does-school-choice-work-in-other-countries/; Glenn, Charles L., Choice of Schools in Six Nations: France, Netherlands, Belgium, Britain, Canada, West Germany (Washington, DC: Office of Educational Research and Improvement, 1989), http://files.eric.ed.gov/fulltext/ED316478.pdf; Glenn, Charles F., Educational Freedom in Eastern Europe (Washington, DC: Cato Institute, 1995). Nor has our proposal been put to the voters of any state via initiative process, something we tried to do in California in the past but were unable to launch effectively.

26 For background on and early developments in the Milwaukee experience, see Sugarman, Stephen D., “Using Private Schools to Promote Public Values,” University of Chicago Legal Forum 1991, no. 1 (1991): 171210 , at 190.

27 For current details see “School Choice in America,” EdChoice, last modified April 13, 2017, http://www.edchoice.org/school-choice/school-choice-in-america/.

28 In addition, a number of states have adopted or expanded long-standing plans that allow parents of disabled children to send them to private schools at public expense, sometimes to specialized schools serving only substantially disabled children, a development that will be put aside here. For a list with details, see ibid.

29 See generally Bulman, Robert C. and Kirp, David L., “The Shifting Politics of School Choice,” in School Choice and Social Controversy, ed. Sugarman, Stephen D. and Kemerer, Frank R. (Washington, DC: Brookings Institution Press, 1999), chapter 2.

30 For the involvement of Americans United for Separation of Church and State in the original Milwaukee case as well as subsequent voucher cases, see “Jackson v. Benson / Thompson v. Jackson,” Americans United for Separation of Church and State, last updated Oct. 24, 2011, https://www.au.org/our-work/legal/lawsuits/jackson-v-benson-thompson-v-jackson/. For the National Education Association case against vouchers, see “The Case against Vouchers,” National Education Association, accessed December 7, 2016, http://www.nea.org/home/19133.htm.

31 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

32 Sugarman, Stephen D., “Tax Credit School Scholarship Plans,” Journal of Law and Education 43, no. 1 (2014): 160 .

33 “Basic Program Facts about the Florida Tax Credit Scholarship (FTC),” Step Up for Students, accessed December 7, 2016, https://www.stepupforstudents.org/newsroom/basic-program-facts/. A recent legal challenge to the Florida plan has been dismissed on standing grounds, “A Record of Legal Documents and Media Coverage,” Step Up for Students, accessed December 7, 2016, https://www.stepupforstudents.org/newsroom/lawsuit-updates/.

34 “School Choice in America.”

35 Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).

36 It should also be noted that as of now, only about 5 percent of children currently attending private schools do so with the help of public funding from these two types of plans. Sugarman, “Tax Credit School Scholarship Plans.”

37 See generally, Jeffrey R. Henig and Stephen D. Sugarman, “The Nature and Extent of School Choice,” in Sugarman and Kemerer, School Choice and Social Controversy, chapter 1.

38 This “small schools” movement was significantly promoted, among other things, by the Bill & Melinda Gates Foundation, which later moved away from this reform strategy on the ground that it was not providing the solution to urban education's problems that the foundation had hoped for. “Evaluation of the Bill & Melinda Gates Foundation's High School Grants Initiative,” The Bill & Melinda Gates Foundation, accessed December 7, 2016, https://docs.gatesfoundation.org/documents/year4evaluationairsri.pdf. “Why Did the Gates Small-High-Schools Program Fail?” Education Week, February 19, 2010, http://www.edweek.org/ew/articles/2010/02/17/22marshak.h29.html. See also, “More Research Showing Small Schools Work, Gates Remains Silent,” Education Next, accessed December 7, 2016, http://educationnext.org/more-research-showing-small-schools-work-gates-remains-silent/.

39 See Henig and Sugarman, “The Nature and Extent of School Choice,” 22–23.

40 For tips to parents as to how to make the most of school choices within their local school district, see Marian Wilde, “Working the System,” Great Schools, March 8, 2016, http://www.greatschools.org/gk/articles/working-the-system/.

41 For a description of the Cambridge, Massachusetts, “controlled choice” plan, which began in 1980, see “About Controlled Choice,” Cambridge Public School District, accessed December 7, 2016, http://www.cpsd.us/departments/frc/making_your_choices/about_controlled_choice.

42 For official Berkeley information on how the plan works, see “Enrollment FAQ,” Berkeley Public Schools, accessed December 7, 2016, http://www.berkeleyschools.net/departments/berkeley-school-admissions/enrollment-faq/. For tips to parents as to how to best use the system, see “BUSD: Enrolling and School Assignment,” Berkley Parents Network, accessed December 7, 2016, https://www.berkeleyparentsnetwork.org/recommend/schools/berkeley/berk-choice.

43 See generally, Henig and Sugarman, “The Nature and Extent of School Choice.”

44 Kolderie, Ted, Beyond Choice to New Public Schools: Withdrawing the Exclusive Franchise in Public Education (Washington, DC: Progressive Policy Institute, 1990), http://files.eric.ed.gov/fulltext/ED327914.pdf; Nathan, Joe, Charter Schools: Creating Hope and Opportunity for American Education (San Francisco: Jossey-Bass, 1996). Kolderie gives Professor Ray Budde credit for the initial idea: see Ted Kolderie, “Ray Budde and the Origins of the Charter Concept,” Education Evolving, June 2005, http://educationevolving.org/pdf/Ray-Budde-Origins-Of-Chartering.pdf.

45 For even earlier discussions of school choice not involving the existing private school sector, but not explicitly using the “charter school” label, see, Mario Fantini's proposal for public choice schools: Fantini, Mario, Public Schools of Choice (New York: Simon and Schuster, 1973). For Coons's and my earlier contribution, see Coons, John E. and Sugarman, Stephen D., “Vouchers for Public Schools,” Inequality in Education, no. 15 (1973): 6062 , where we talk about, among other things, publicly funded “independent public schools” that would be open to families on the basis of school choice. See also Sugarman, Stephen D., “Family Choice: The Next Step in the Quest for Equal Educational Opportunity?Law and Contemporary Problems 38, no. 3 (1974): 513–65.

46 “A Closer Look at the Charter School Movement,” National Alliance for Public Charter Schools, accessed December 7, 2016, http://www.publiccharters.org/wp-content/uploads/2016/02/New-Closed-2016.pdf.

47 “Enrollment in Public Elementary and Secondary Schools, by Region, State, and Jurisdiction: Selected Years, Fall 1990 through Fall 2023,” National Center for Education Statistics, accessed December 7, 2016, https://nces.ed.gov/programs/digest/d13/tables/dt13_203.20.asp.

48 “A Closer Look at the Charter School Movement.”

49 See, for example, Cal. Education Code § 47615 (West 2017) (declaring charter schools to be part of the public school system and under the exclusive control of public school officials). See generally, Viteritti, Joseph P., “Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law,” Harvard Journal of Law and Public Policy 21, no. 3 (1998): 657713 ; Kemerer, Frank. B., “The Constitutional Dimension of School Vouchers,” Texas Forum on Civil Liberties and Civil Rights 3, no. 1 (1998): 137–85. In September 2015, the Washington Supreme Court invalidated the state's funding of charter schools on the ground that they do not meet the state constitution's definition of “common schools” (that is, public schools). Emma Brown, “What Makes a Public School Public? Washington State Court Finds Charter Schools Unconstitutional,” Washington Post, September 9, 2015.

50 To the extent that some charter schools are but branches of the local school district, those few number are put aside here.

51 This data comes from the “Charter School Data Dashboard” of the National Alliance for Public Charter Schools, last accessed May 11, 2017, http://dashboard2.publiccharters.org/National/ (click on the “Schools” tab; for data points, choose “Charter Management Structure” and “2014–2015”; to see data represented as a percentage, choose the percent sign option).

52 Sugarman, Stephen D. and Kuboyama, Emlie, “Approving Charter Schools: The Gatekeeper Function,” Administrative Law Review 53, no. 3 (2001): 869942 .

53 Ted Rebarber and Alison Consoletti Zgainer, eds., “Survey of America's Charter Schools 2014,” The Center for Education Reform, accessed December 7, 2016, https://www.edreform.com/wp-content/uploads/2014/02/2014CharterSchoolSurveyFINAL.pdf. More recently, teachers who work for some large charter school operators have begun to engage in unionization efforts. Rachel M. Cohen, “When Charters Go Union,” American Prospect, June 18, 2015, http://prospect.org/article/when-charters-go-union.

54 Emma Brown, “National Labor Relations Board Decides Charter Schools Are Private Corporations, Not Public Schools,” Washington Post, August 30, 2016, https://www.washingtonpost.com/news/education/wp/2016/08/30/national-labor-relations-board-decides-charter-schools-are-private-corporations-not-public-schools/.

55 But note the Department of Education “dear colleague letter” concerning charter schools and the arguable application of the constitution to charter schools with respect to students’ rights. U.S. Dept. of Education, Office of Civil Rights, Catherine E. Lhamon, “Dear Colleague Letter,” U.S. Department of Education, Office of Civil Rights, May 14, 2014, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405-charter.pdf.

56 In 1988 Albert Shanker, then president of the American Federation of Teachers, threw his support behind the idea of charter schools. See Richard D. Kahlenberg and Halley Potter, “The Original Charter School Vision,” New York Times, August 30, 2014, http://www.nytimes.com/2014/08/31/opinion/sunday/albert-shanker-the-original-charter-school-visionary.html?_r=0.

57 See Henig, Jeffrey R., Spin Cycle: How Research Is Used in Policy Debates: The Case of Charter Schools (New York: Russell Sage Foundation, 2008), 75; Fusarelli, Lance D., The Political Dynamics of School Choice (New York: Palgrave Macmillan, 2003), 141.

58 See, for example, Howard Blume, “Unions Forge Alliance to Fight Growth of Charter Schools in LA,” Los Angeles Times, October 13, 2015, http://www.latimes.com/local/education/la-me-lausd-charter-20151014-story.html.

59 See, for example, Barack Obama, “Presidential Proclamation—National Charter Schools Week, 2015,” The White House, May 4, 2015, https://www.whitehouse.gov/the-press-office/2015/05/04/presidential-proclamation-national-charter-schools-week-2015. President Obama's ongoing commitment of increased federal funding for charter schools won him praise from charter-school supporters like the National Alliance for Public Charter Schools. See “National Alliance Applauds President Obama's Increased Funding Commitment to Charter Schools,” National Alliance for Public Charter Schools, February 2, 2015, http://www.publiccharters.org/press/obama-budget-fy16/.

60 See, for example, David Feldman, “Teachers Denounce Obama's Education Agenda,” Liberation News, August 26, 2010, http://www.liberationnews.org/10-08-26-teachers-denounce-obamas-educat-html/.

61 For a discussion of the main features of school chartering, see Sugarman and Kuboyama, “Approving Charter Schools”; Yilan Shen, “Authorizing Charter Schools,” National Conference of State Legislatures, May 2011, http://www.ncsl.org/documents/educ/AuthorizingCharterSchools.pdf.

62 National Alliance for Public Charter Schools, “Measuring Up to the Model: A Ranking of State Charter School Laws,” January 2015, http://www.publiccharters.org/wp-content/uploads/2015/01/model_law_2015.pdf. See California Education Code Section 47605(b) creating a strong presumption in favor of approving reasonably presented charter applications. In “weak” charter school states, there is likely to be a cap on the total number of charter schools that are allowed to exist, and those that do form tend to be substantially more closely regulated than elsewhere.

63 Julie Davis Bell, “Charter School Caps,” National Conference of State Legislatures, December 2011, http://www.ncsl.org/documents/educ/CharterSchoolCaps.pdf.

64 Yet in some states, the typical terms in the charter document are sufficiently narrow that there is much less freedom from the regulations governing public schools than the charter school concept envisions.

65 “Oakland Unified School District Authorized Charter Schools 2016–2017,” Oakland Unified School District Office of Charter Schools, accessed December 7, 2016, http://www.ousdcharters.net/uploads/4/1/6/1/41611/charter_schools_updated11.7.2016.pdf.

66 “Oakland Unified School District Authorized Charter Schools 2015–2016,” Oakland Unified School District Office of Charter Schools, accessed December 7, 2016, http://www.ousdcharters.net/uploads/4/1/6/1/41611/charter_schools_12.11.2015.pdf.

67 “Charter School Enrollment 2015–16,” Oakland Unified School District Office of Charter Schools, accessed December 7, 2016, http://www.ousdcharters.net/uploads/4/1/6/1/41611/charterschoolenrollmentstudentfigures2015-16updated.pdf.

68 There are 200 KIPP schools nationwide. “How is KIPP Structured?” KIPP, accessed December 7, 2016, http://www.kipp.org/about-kipp/our-organization.

69 Aspire operates more than three dozen charter schools in the states of California and Tennessee. “About Aspire,” Aspire Public Schools, accessed December 7, 2016, http://aspirepublicschools.org/about/.

70 “Estimated Number of Public Charter Schools and Students, 2013–2014,” National Alliance for Public Charter Schools, February 2014, http://www.publiccharters.org/wp-content/uploads/2014/02/New-and-Closed-Report-February-20141.pdf. For a study of charter school closures, see Alison Consoletti, “The State of Charter Schools,” Center for Educational Reform, December 2011, https://www.edreform.com/wp-content/uploads/2011/12/StateOfCharterSchools_CER_Dec2011-Web-1.pdf.

71 “Number and Enrollment of Public Elementary and Secondary Schools, by School Level, Type, and Charter and Magnet Status: Selected Years, 1990–91 through 2012–13,” National Center for Education Statistics, accessed December 7, 2016, https://nces.ed.gov/programs/digest/d14/tables/dt14_216.20.asp.

72 A 2000 report notes that 15 of the 27 states with charter schools precluded existing private schools from becoming charter schools. Beryl Nelson et al., “The State of Charter Schools,” Office of Educational Research and Improvement, January 2000, 18, http://files.eric.ed.gov/fulltext/ED437724.pdf. And in practice about 80 percent of all charter schools now in place are start-ups. Rebarber and Zgainer, “Survey of America's Charter Schools 2014.” Yet, in many states this formal restriction on private school conversions appears to have no teeth as private schools are able to close down and lease their facilities to a newly created charter school that in many crucial aspects is, in fact if not legal form, largely a continuation of the old school. Garnett, “Are Charters Enough Choice?,” 1901.

73 Meagan Batdorff et al., “Charter School Funding: Inequity Expands,” University of Arkansas Department of Education Reform, April 2014, http://www.uaedreform.org/wp-content/uploads/charter-funding-inequity-expands.pdf.

74 Sugarman, Stephen D., “Charter School Funding Issues,” Education Policy Analysis Archives 10, no. 34 (2002): 115 , http://epaa.asu.edu/ojs/article/view/313/439. This lower funding level in turn has forced many charter schools to seek supplemental funding from philanthropic foundations and the like in order to augment their revenues (recalling that charging tuition to their families is forbidden).

75 Adam B. Schaeffer, “The Charter School Paradox,” Cato Institute, accessed December 7, 2016, http://object.cato.org/sites/cato.org/files/serials/files/working-paper/2012/8/charter-school-paradox.pdf; Stephanie Ewert, “The Decline in Private School Enrollment,” U.S. Census Bureau, last modified January 2013, https://www.census.gov/hhes/school/files/ewert_private_school_enrollment.pdf.

76 Coons, Clune, and Sugarman, Public Wealth and Private Education; Coons and Sugarman, Family Choice in Education.

77 “Religious Schools in America: A Proud History and Perilous Future, a Report of the Commission on Faith-Based Schools of the American Center for School Choice,” 9, accessed December 7, 2016, http://www.discovery.org/f/11681.

78 Ibid., 8.

79 Ibid., 8–10.

80 Ibid., 11–12.

81 Ibid.

82 Ibid.

83 Ibid., 12. In the first ten years of the twenty-first century, enrollments increased substantially over prior numbers in Evangelical, Methodist, Presbyterian, Lutheran, Episcopal, Muslim, and Jewish schools.

84 “Private School Enrollment,” National Center for Education Statistics, accessed December 7, 2016, https://nces.ed.gov/programs/coe/pdf/coe_cgc.pdf.

85 These studies are well described in Garnett, “Are Charters Enough Choice?,” 1910. The University of Notre Dame's “Catholic School Advantage – Fact Sheet” cites several studies for the proposition that “Catholic schools tend to produce graduates who are more civically engaged, more tolerant for diverse views, and more committed to service as adults.” “Catholic School Advantage – Fact Sheet,” Alliance for Catholic Education, University of Notre Dame, accessed December 7, 2016, https://ace.nd.edu/catholic-school-advantage/catholic-school-advantage-fact-sheet; For a general discussion of the question, see Hunt, Thomas C. and Carper, James C., eds., The Praeger Handbook of Faith-Based Schools in the United States, K-12 (Westport: Praeger, 2012), 508–10.

86 See generally Salomone, Visions of Schooling. Some who favor public funding of faith-based schools argue that this would reduce the pressure to bring religion into public schools.

87 Decker, Janet R. and Carr, Kari A., “Church-State Entanglement at Religiously Affiliated Charter Schools,” B.Y.U. Education and Law Journal 2015, no. 1 (2015): 77105 .

88 Weinberg, Religious Charter Schools, xxiii; See also Weinberg, Lawrence D., “Religious Charter Schools: Gaining Ground Yet Still Undefined,” Journal of Research on Christian Education 18, no. 3 (2009): 290302 ; For an early look at the potential legal obstacles standing in the way of religious organizations creating nonsectarian charter schools, see Green, Preston III, “Charter Schools and Religious Institutions: A Match Made in Heaven?,” West's Education Law Reporter 158 (2001): 117 .

89 Weinberg, Religious Charter Schools, 117–20. Some states specifically preclude charters from being organized or run by religious organizations or religious leaders, although this restriction may be unconstitutional. See, for example, Michigan Compiled Laws, Chapter 380, 380.502(1).

90 In the 2011 case ACLU of Minnesota v. Tarek ibn Zayid Academy, the ACLU challenged the defendant's charter on the ground that the school was a religious school in violation of the Establishment Clause. The school's motion to dismiss the case was denied. Howard Friedman, “ACLU Survives Summary Judgment in Establishment Clause Suit against Minnesota Charter School,” Religion Clause (blog), April 22, 2011, http://religionclause.blogspot.com/2011/04/aclu-survives-summary-judgment-in.html. Before the matter was finally resolved the school dissolved. See Mila Koumpilova, “Bankruptcy, Court Defeat Spells the End for TiZA,” Twin Cities Pioneer Press, June 30, 2011, http://www.twincities.com/ci_18385236. Decker and Carr, “Church-State Entanglement,” 90–99, identify and discuss at length seven cases in which charter schools were challenged in court on the ground that they were religious or involved religion in an illegal way; these cases are often disposed of on the basis of a side issue, but the overall message is that if there is a formally clean separation between the school and religious ritual and indoctrination, then the school's official nonsectarian character will be respected.

91 Weinberg, Religious Charter Schools; Decker and Carr, “Church-State Entanglement.”

92 Saiger, “Charter Schools”; cf. Russo, Charles J. and Cattaro, Gerald M., “Faith-Based Charter Schools: An Idea Whose Time Is Unlikely to Come,” Catholic Education: A Journal of Inquiry and Practice 13, no. 4 (2010): 509–31. Russo and Cattaro assume that charter schools are public schools for federal constitutional law purposes, and therefore charter schools could not be faith-based schools. Following this logic, when Catholic schools close and reopen as charter schools, they simply have to cease being Catholic schools. See also, J. Shelton Baxter, “A Constitutional Right to Operate Sectarian Public Charter Schools? Considerations of Free Speech and Free Exercise of Religion in California Charter Schools” (PhD diss., Columbia University, 2005), http://ncspe.tc.columbia.edu/working-papers/OP98.pdf. Despite its title, this paper also assumes that charter schools are public schools for constitutional law purposes and explores issues primarily on the periphery of what it means to be nonsectarian.

93 See Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520 (1993) (striking down a local ordinance clearly aimed at preventing a religious group from practicing its faith).

94 See Rust v. Sullivan, 500 U.S. 173 (1991); Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

95 Compare Arons, Stephen, Compelling Belief: The Culture of American Schooling (Amherst: University of Massachusetts Press, 1986).

96 Pierce v. Society of Sisters, 268 U.S. 510 (1925).

97 For a news report about an investigation into whether certain ultra-orthodox yeshivas in New York city are really “schools,” see Kate Taylor, “New York City Questions English, Math, and Science Taught at Yeshivas,” New York Times, July 31, 2015, http://www.nytimes.com/2015/08/01/nyregion/new-york-city-questions-english-math-and-science-taught-at-yeshivas.html?_r. This story follows up on allegations against these yeshivas made by a former student. Jennifer Miller, “Yiddish Is Not Enough,” New York Times, November 21, 2014, http://www.nytimes.com/2014/11/23/nyregion/a-yeshiva-graduate-fights-for-secular-studies-in-hasidic-education.html.

98 Saiger, “Charter Schools”; cf., Martha Minow, “The Government Can't, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe,” in The Scholarship of Laurence Tribe,” special issue, Tulsa Law Review 42, no. 4 (2006): 911–37.

99 Pierce, 268 U.S. 510.

100 See Zelman, 536 U.S. 639 (2002); Mitchell v. Helms, 530 U.S. 793 (2000); Agostini v. Felton, 521 U.S. 203 (1997).

101 457 U.S. 830 (1982).

102 Robert M. O'Neill, “School Choice and State Action,” in Sugarman and Kemerer, School Choice and Social Controversy, chapter 7.

103 Wren, Jason Lance, “Charter Schools: Public or Private? An Application of the Fourteenth Amendment's State Action Doctrine to These Innovative Schools,” Review of Litigation 19, no. 1 (2000): 135–66.

104 “Dear Colleague Letter.”

105 536 U.S. at 663.

106 Ibid., 648–49; Lemon, 403 U.S. at 612–13. But note that not all of the Justices would apply these tests.

107 Zelman, 536 U.S. at 653–54.

108 The plurality in Zelman, emphasized the full range of “choice” programs in Cleveland besides the voucher plan, including magnet and charter schools as a way of characterizing the Cleveland plan as not centrally about religious schools.

109 For example, in the Cleveland voucher case, the Court does not discuss the “entanglement” test.

110 Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a university that opens facilities to registered student groups may not exclude registered religious student groups who seek to use facilities for religious worship and discussion).

111 Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (upholding equal access to school facilities of a church group seeking to show Christian-oriented films on family values).

112 Good News Club v. Milford Central School, 533 U.S. 98 (2001) (upholding religious use of school facilities on grounds similar to Lamb's Chapel).

113 Rosenberger v. Rectors and Visitors of University of Virginia, 515 U.S. 819 (1995).

114 See, for example, William Jeynes, “The Data Are In: Religious Private Schools Deserve a Second Look,” The Witherspoon Institute, May 2013, http://www.thepublicdiscourse.com/2013/05/10218/.

115 See the description of this longstanding practice in Sugarman, Stephen D., “Family Choice: The Next Step in the Quest for Equal Educational Opportunity,” Law and Contemporary Problems 38, no. 3 (1974): 513–65.

116 Bagley v. Raymond School District, 728 A.2d 127 (Me. 1999).

117 The Maine Supreme Court saw things differently, however, since in Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006), it reaffirmed the result of Bagley. But note that the Anderson decision is now ten years old, and the U.S. Supreme Court composition and outlook was different a decade ago.

118 Zelman, 536 U.S. at 718 (Breyer, J. dissenting); 536 U.S. at 686 (Souter, J. dissenting, joined by Ginsburg, J.).

119 Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011).

120 Melissa Rogers, “God in Government: Judge Sotomayor's Church-State Record,” Brookings Institute, July 7, 2009, http://www.brookings.edu/research/opinions/2009/07/07-sotomayor-rogers; Howard Friedman, “Sotomayor Is High Court Pick; Here Are Her Religion Decisions,” Religion Clause (blog), May 26, 2009, http://religionclause.blogspot.com/2009/05/sotomayor-is-high-court-pick-here-are.html.

121 Michael Potemra, “Sonia Sotomayor and Anti-Catholicism,” National Review, January 8, 2014, http://www.nationalreview.com/corner/367869/sonia-sotomayor-and-anti-catholicism-michael-potemra.

122 Sonia Sotomayor, My Beloved World (New York: Alfred A. Knopf, 2013).

123 Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).

124 540 U.S. 712 (2004).

125 Dick Komer, Michael Bindas, and Tim Keller, “Answers to Frequently Asked Questions about Blaine Amendments,” Institute for Justice, accessed June 20, 2017, http://ij.org/issues/school-choice/blaine-amendments/answers-frequently-asked-questions-blaine-amendments/.

126 Kemerer, “The Constitutional Dimension,” at 153–56. “The Blaine Game: Controversy over the Blaine Amendments and Public Funding of Religion,” Pew Research Center, July 24, 2008, http://www.pewforum.org/2008/07/24/the-blaine-game-controversy-over-the-blaine-amendments-and-public-funding-of-religion/ (The article is an interview with Professor Ira “Chip” Lupu).

127 Kemerer, “The Constitutional Dimension,” at 161–77.

128 Ibid, table II, at 183–84.

129 Witters v. State Commission for the Blind, 112 Wash. 2d 363, (Wash. 1989) (en banc).

130 Locke, 540 U.S. at 712.

131 Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970).

132 The argument I advance here would result in a contrary outcome from what Rehnquist was suggesting.

133 See Laycock, “Theology Scholarships.”

134 See Saiger, “Charter Schools.”

135 Laycock, “Theology Scholarships,” 191–95.

136 Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

137 The commission administering the Colorado plan determined the college to be “pervasively sectarian,” and hence its students were ineligible for the scholarship program under state law, despite the Colorado commission's assistance to students attending other religious colleges.

138 386 F.3d 344 (1st Cir. 2004).

139 386 Ibid., 356.

140 Laycock, “Theology Scholarships,” 187.

141 Eulitt, 386 F.3d at 355.

142 Church of Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520 (1993).

143 Laycock, “Theology Scholarships,” 187.

144 Saiger, “Charter Schools,” 1214.

145 Ibid. Yet Saiger is not convinced that in the future all charter school states will maintain their legislative exclusion of such schools.

146 See Minow, “The Government Can't, May, or Must Fund Religious Schools,” 927; see also Zelman, 536 U.S. at 718 (Breyer, J., dissenting).

147 Glenn, Charles L., Educational Freedom in Eastern Europe (Washington, DC: Cato Institute, 1995).

148 See, for example, Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

149 26 U.S.C. § 170.

150 https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf.  The U.S. Supreme Court had agreed to hear the case during the 2016–17 term on January 15, 2016, when Justice Scalia was still alive.

151 788 F.3d 779 (8th Cir. 2015).

152 I am assuming here that such a law would not be held unconstitutional by the current Court even though the impact of this preclusion is overwhelmingly on religious schools and families seeking faith-based education for their children. This is because the rule is neutral on its face. See Employment Division v. Smith, 494 U.S. 872 (1990).

153 Recent experience with urban Catholic schools’ closing and then opening new charter schools on the same premises with similar staff and students suggests that, in at least a number of states, the “no conversion” rule is easily bypassed. See Garnett, “Are Charters Enough Choice?,” 1901.

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