By Lawrence D. Weinberg, Esq., Ed.D.
Charter schools are public schools that face greater accountability and have greater autonomy than traditional public schools. The school receives a charter to operate from a state-approved entity; it then receives a combination of local, state, and federal funding. Forty states and the District of Columbia have charter school laws (each is different). There are more than 4,000 charter schools across the country serving more than a million students.
The Establishment Clause requirement of separating church and state applies to charter schools just as it does to other public schools. However, the chartering process offers faith-based schools important opportunities because of the increased flexibility enjoyed by charter school operators.
The bottom line distinction between what faith-based charter schools can and cannot do is this: faith-based charter schools can accommodate their students’ religious beliefs; the Constitution, however, prevents faith-based organizations from creating charter schools that endorse religious beliefs. Because the Establishment Clause draws a line that is far from clear, any list of permissible and non-permissible activities of faith-based charter schools is necessarily imperfect.
Accordingly, these issues need to be discussed in broad strokes, but the fundamental lessons provide valuable guidance. It is important to bear in mind that such programs will always be determined to be constitutional or unconstitutional based on their particulars. For example, the Supreme Court has held that one display of a crèche may be constitutional, while another may violate the First Amendment.
Chartering does not permit a faith-based, private school to merely close its doors in the summer and then reopen unchanged the following fall as a public charter school. However, there are a wide variety of activities that the Constitution permits a faith-based organization to pursue through the charter school model.
What follows is a list of issues central to running a school, whether a faith-based school would have to change its operations were it to convert into a public charter school, and if so, how.
|Staffing||Changes required||A charter school cannot have religious criteria for staff; the non-discrimination requirements of Title VII apply to charters since they are public schools. So for example, a faith-based charter could not terminate a teacher for behavior that runs counter to the faith inspiring the school; private faith-based schools are permitted to do so.|
|Teacher certification||Depends on the state||Some states require all teachers at charter schools to be certified (e.g., California, Virginia), while some do not (e.g., Arizona, Washington, DC). Some states require that some percentage of charter school teachers be certified (e.g., Illinois, South Carolina, New York). Massachusetts requires teachers at charters to be either certified or pass the state teaching test. Indiana permits alternate route certification.|
|Religious icons||Generally not permitted||Although religious icons are not generally permitted at a charter school, it might be possible for a charter school to rent a facility with existing religious icons.|
|Prayer||Changes required||Prayer must be voluntary and student-initiated. Schools may provide students with a space to pray before or after school; however, teachers may not participate in prayers.|
|School ownership, operations, and management||Depends on the state||According to the Becket Fund for Religious Liberty, thirty-seven states have provisions in their constitutions (commonly called Blaine Amendments) that prohibit state monies from funding religious schools. In those states a secular foundation would have to operate the school. Currently, Rev. Michel Faulkner is suing to permit the New Horizon Church to operate a charter school in Harlem challenging New York’s Blaine Amendment.|
|Uniforms||Permitted||Charter schools may have dress codes or school uniforms.|
|Dietary restrictions||Permitted||Charter schools may provide kosher, halal, or other religiously required food to their students. While a charter school could probably maintain an entirely kosher kitchen, it probably could not ban all non-kosher food from the cafeteria.|
|Holiday arrangements||Permitted||Charter schools may close for religious holidays as an accommodation to their students.|
|Religious admissions requirements||Prohibited||Charter schools cannot have any religious admissions requirements or preferences for students of a particular faith.|
|Curriculum||Depends on the state||State curriculum requirements and their applicability to charter schools vary widely.|
|Religion courses||Changes required||No religious course may endorse the religion being taught. The course could endorse morality generally or culture. However, a charter school may rent space to a different entity to teach religious courses after school ends so long as students are not required to take such courses.|
|Board membership||Open||Clergy may sit on the boards of charter schools, but there can be no requirement that clergy sit on such boards or that board members profess a particular faith.|
|Religious identification||Prohibited||Charter schools cannot identify with any faith.|
|Scheduling||Permitted||A charter school can arrange its schedule to enable students to attend religious activities after school.|
Faith-based charter schools are more than a theory; several are in operation today. It is, however, difficult to discuss their operations for two reasons. First, some charter schools are only marginally faith-based. For example, a charter school may have formed because parents had religious objections to their local public school’s reading curriculum. So the new “faith-based” charter school could be 99 percent the same as the neighborhood public school but without the religiously objectionable readings.
The second reason is because some charter schools that may appear to be faith-based from the outside are not viewed by their founders as faith-based but as cultural- or language-based. However, faith-based does not mean unconstitutional. A faith-based charter school is a charter school that is quite simply in some way based on faith.
The following charter schools are faith-based to varying degrees:
Catholic schools in Washington, DC, Rochester, NY, Marysville, CA, and Denver, CO are considering or are in the process of converting to charter status, as is the Ross County Christian Academy of Chillicothe, OH. Religious leaders operate charter schools all across the country. There is no way to track how many religious schools have closed their doors only to have a charter school open in the same building, with many of the same teachers and students. For example, in Brazoria County, Texas, the West Columbia Charter School opened in the same building where the Columbia Christian School operated. Minnesota has numerous schools based on cultures that may have religious elements, including Latino, Native American, East African, and Chinese communities.
The critical point for religious leaders considering opening a charter school is whether they will be able to fulfill their desired mission through a school that may accommodate religion but not endorse it. Each leader will have a different answer to this question. And while I have addressed in broad strokes some of the issues that religious leaders may have, these lessons could be applied in a number of ways at the school level and therefore come to rest on different sides of the constitutional line. However, the fact that a number of charter schools in operation today are connected to a faith demonstrates that chartering offers a promising and realistic opportunity for leaders of faith-based schools who are considering ways of maintaining the viability of their institution.