What about religion and charter schools?

A bit of history regarding religion and public schools

     Religion has long played a divisive role in American education.  Ever since the founding of the country, United States political leaders have been concerned as to if and how to create an American educational system not chained to sectarian rivalry and strife. In the US, the system of sectarian schools that existed at the beginning of the country was, by the mid-nineteenth century, supplanted with publicly funded “common schools.. These schools were described and designed to offer children a public secular education free from the pressures of religious conflicts. Yet as Benjamin Hillman notes in a 2008 article in the Yale Law Journal, from the start, common schools drew their ideology from the teachings of mainline Protestantism. The creation of the common school, according to Hillman, did not lead to the disappearance of religious schools nor did it erase the conflict over the role of religion in education.  During this time Catholics perceived a heavy-handed Protestant influence within the public schools and this prompted them to create their own school system in the late nineteenth century. In response, Protestants successfully advocated for “Blaine Amendments” to state constitutions that prevented any state funding of religious schools (Hillman 2008).   Hillman goes on to explicate that:

In the second half of the twentieth century, advocates of secular education and religious traditionalists alike turned to the courts to arbitrate their disputes over the proper role of religion in public education. Although a legacy of Protestant influence remains, these Supreme Court decisions have helped to secularize American public education. By the end of the twentieth century, a robust constitutional regime governing religious expression in public schools appeared to be in place.

Over the past several decades, however, school choice has significantly changed the structure of American schooling. In particular, publicly funded, privately managed charter schools have made the school offerings of many urban districts unprecedentedly diverse. No longer must those attending urban public schools go to a neighborhood school or choose only between undifferentiated generalist schools; today, a menu of specialized offerings exists, from Afro-centric schools to those with a focus on art or social change (ibid)

Contemporary Charter schools and the Establishment Clause

     By virtue of the fact that charter schools are part of the public educational system in the United States, charter schools are legally bound by the First Amendment of the Constitution of the United States. This means charter schools are subject to what is called the ‘Establishment Clause’ of the United States Constitution, also often referred to as the notion of the “separation of church and state.  When applying the Establishment Clause to public schools, the Courts have often emphasized the importance of maintaining ‘neutrality’ on behalf of public school officials toward religion What this means is that legally public schools may neither inculcate nor may they inhibit religion. They also may not prefer or privilege one religion over another – or even religion over non religious beliefs. This means that charter schools, since they are pubic schools, should not do anything that promotes a particular religion or faith.  But is this the case?  Are charter schools being utilized by religious communities to establish their own religious schools?  The ACLU thinks so. 

     In 2008, after concerns were leveled at the Tarek ibn Ziyad Academy charter school (TiZA) located in Minnesota and briefly mentioned early in this chapter, the Minnesota Department of Education proceeded to investigate the school and they eventually found the school was mostly in compliance with state and federal law. The school was told to take corrective actions regarding prayer services held each Friday at the school and the officials of the school were ordered to make bus rides home available right after school ends, instead of after a ‘voluntary’ after-school religious program that the school held.  Yet on January 20th, 2009 the ACLU filed charges against the Minnesota Department of Education alleging that the charter school, which caters to Muslim students, is using taxpayer money to illegally promote religion in violation of the First Amendment.  According to the lawsuit the TiZA has violated the First Amendment by preferring the Muslim religion over others. For example the ACLU cites the fact that the school allows prayer sessions during school hours.  They also allege that the charter school prefers Muslim dietary practices by serving certain foods and endorses Muslim clothing rules.  This they allege is a violation of the Establishment Clause.  The school said in a written statement that though officials haven’t yet seen the ACLU’s complaint, they believe the lawsuit is without merit; however the deputy education commissioner for the state said in a written statement that the department is reviewing the ACLU lawsuit and will continue to monitor operations at TiZA. He also said the department is drafting legislation to address some of the concerns. (Dunbar 2009).

     On the other hand, Lawrence Weinberg and Bruce Cooper, writing for Education Week, imply that the U.S. Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, which said that public vouchers could be used for students’ tuition at religious K-12 schools, opened the door for religiously based charter schools, or at least the authors and their supporters seem to believe this to be the case.  The issue of mandatory school attendance at a public school within a state was presented to the State Supreme Court of Oregon in 1925 for adjudication.  In the case of Pierce v. Society of Sisters, the Supreme Court noted that an earlier 1922 Oregon state law requiring that all school-aged children attend a public school in their community cannot outlaw attendance at private or religious schools; that to do so was unconstitutional and a violation of parents’ rights to direct the upbringing and education of their children.  However it is important to note that the court in no way allowed for the public financing of such schools.  It simply stated that a private religious education met the requirements of mandatory attendance in school for Oregon students.  As a result of the Oregon state court decision as well as federal decisions which have held the same, the issue of religious charter schools and public funding should be an open and shut issue, right? 

     Authors Weinberg and Cooper claim that TiZA offers an example to citizens as to how to tailor such ‘religious theme’ schools to meet the exigencies of the Establishment clause while still allowing for a religiously or ethnically based ‘theme charter schools.  Take their commentary published in Education Week in 2007 whereby they counsel those interested in opening such ‘theme’ schools could follow Ziyad Academy’s example. They offer the following tips, and others, for religious groups that may be interested: