RSS Channels IndexCharter Schools Present Challenges to Separation of Church and State
Newswise — In the 13 years since California, enacted charter school legislation, the body of law in the areas of free exercise of religion and freedom of speech has continued to evolve. As a result, charter schools may soon foment new legal controversies. Charter schools are public schools funded with public dollars, but they are granted increased autonomy from state rules and regulations. Charter school advocates argue that increased autonomy enables schools to implement innovative and more effective educational strategies. However, charter schools are still expected to conform to certain definitions of public education. Specifically, California law explicitly prohibits the expression or practice of religion in charter school programs, admission policies, employment practices, and all other operations.
On the surface, this seems consistent with the laws that govern traditional public schools. Federal and state constitutions tend to strictly forbid the promotion of religion in daily school operations. However, in California, religious organizations can use public school facilities and resources when school is not in session. For example, prayer meetings may be held in classrooms or religious flyers may be created in a school's computer lab. Barring charter schools from similar practices may prompt legal challenges by charter school operators. Anecdotal evidence suggests that many charter schools are founded by faith-based homeschoolers, located in religious buildings, or are aided financially by religious connections. As these practices come under greater state scrutiny, legal restrictions on charter schools will need to be more clearly defined.
A new study titled "Free Speech and Free-exercise of Religion in California Charter Schools," by J. Shelton Baxter, examines the potential legal problems that may result from the current separation of church and state. Baxter states, "Right now religion appears to be playing a role in the creation and operation of California charter schools. If these actions are legally challenged, it is not entirely clear that any and all religious practices would be disallowed." Baxter identifies three ways the state charter school law defining charter schools as nonsectarian, meaning non-religious, institutions can be interpreted. One interpretation is that the statute is clear on its face and should be strictly enforced--if charter schools are nonsectarian then religious activity of any nature, including the use the resources and physical structures, should be prohibited. A conflicting interpretation of the law is that the charter school legislation intends to encourage flexibility in the provision of public educational services; therefore, state regulation of a charter's sectarian activities should be minimally regulated. Regulation would be limited to the initial chartering process when the chartering agency reviews the missions of particular schools. A third, more moderate position asserts that California charter schools should be held to exactly the same legal standards as any other public school in the state. This would prohibit the promotion of religion in the daily operation of charter schools, but might allow for resources and facilities to be used by students and organizations for religious purposes. Dr. Henry Levin, the director of the National Center for the Study of Privatization in Education at Teachers College, Columbia University, comments, "The role of religion in public education has never been resolved. School choice and privatization initiatives often add new noise to debates over the role of public education, because parents and educators are attempting to exercise their own values and beliefs."
Baxter finds that California's charter school law can be challenged on two fronts. First, the legal denial of religion in all forms at charter schools is inconsistent with accepted public school actions, whether or not religion is actually influencing charter schools in practice. A series of U.S. Supreme Court decisions commencing in the early 1980's and culminating in 2003, provided greater accommodations to persons wishing to use public school facilities for purposes other than traditional public school activities. Known as the "access line of cases" , the initial ruling permitted a group of college students in Kansas City to use a part of their school's facilities for expressly religiously activities. A similar right was later extended to high school students and ultimately to religious organizations seeking to provide religious activities and instruction to children.
Second, the free speech clause of the First Amendment may protect religious interests in certain cases. In a case concerning a student activity fund at the University of Virginia, the U.S. Supreme Court determined that the school could not constitutionally discriminate against persons based solely on their viewpoint once access to a meeting or event was granted. The school could set limits as to who was allowed to speak at the meeting, but once the decision was made to include a particular individual, the school could not prevent him or her from discussing religious issues.
To determine where potential legal battles may erupt, Baxter analyzes the practices of home-school charter schools; the use of the charter school facilities and campuses for religious activities; the publication of student work with religious content; and the use by a charter school of a facility owned or furnished by a religious institution. These instances demonstrate the influence of religion on California charter schools in ways not fully accounted for by California charter school legislation. As long as uncertainties continue to exist, there will be a need for further judicial definitions. Whether increased regulation would stifle the innovation that drives the popularity of charter reform remains an open question.
Free Speech and Free Exercise of Religion in California Charter Schools, by J. Shelton Baxter is the latest occasional paper sponsored by the National Center for the Study of Privatization in Education (NCSPE) at Teachers College, Columbia University.
Occasional Papers can be viewed at http://www.ncspe.org/list-papers.php
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