Faith-Based Charter Schools: An Idea Whose Time is Unlikely to Come

Abstract

Simply stated, the efforts of their supporters notwithstanding,1 it is unlikely that faith-based charter schools,2 which are opening as the number of religiously affi liated nonpublic schools declines,3 can survive judicial scrutiny. Moreover, even if religious charter schools, whether Catholic,4 Christian,5 Jewish,6 or Muslim,7 can withstand challenges in federal courts,8 it is likely that they would be struck down in state courts due to signifi cant state constitutional restrictions9 forbidding aid to religious institutions. Further, overlapping statutory limits typically prevent religious entities from operating charter schools,10 require that they be nonsectarian in nature,11 and/or restrict them to operating in nonsectarian manners.12 As an initial matter, it is important to note that the charter school movement, which began in 1991 in Minnesota,13 has spread to 40 states plus the District of Columbia and Puerto Rico.14 Charter schools, which are public schools of choice, are typically operated as not-for-profi t organizations, essentially functioning as independent districts consisting of single schools, by private groups including parents either independently or occasionally in conjunction with public institutions such as universities. In return for being exempted from many state regulations, charter schools are accountable for the academic achievement of their students. While charters vary in duration, they typically range from 3 to 5 years in length.15 When contracts expire, depending on state law, charters can be renewed or terminated. Charter schools, although free from many state rules with regard to staff and curricular issues, remain subject to federal and state antidiscrimination laws such as those dealing with students with disabilities and employment. In addition, charter schools typically cannot be operated by religious groups.16