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a journal of analysis and comment advancing public understanding of religion and education
(more on the Journal)

Spring 2009
Vol. 36 No. 1

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

Charles J. Russo & Gerald M. Cattaro
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 affiliated non-public 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 due in state courts due to significant 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 non-sectarian 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 forty states plus the District of Columbia and Puerto Rico.14 Charter schools, which are public schools of choice, are typically operated as not-for-profit 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 three to five 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 anti-discrimination laws such as those dealing with students with disabilities and employment. In addition, charter schools typically cannot be operated by religious groups.16 Of course, significant questions remain over the extent to which faculty and staff in faith-based charter schools may actually teach about the religious beliefs and practices of their sponsors.

In light of the legal and educational issues surrounding the status of religious charter schools, this article is divided into two parts. The first section reviews key litigation addressing the parameters of public aid to religiously affiliated non-public school because these cases provide the necessary background should judicial challenges arise to faith-based charter schools.17 This first part of the paper also briefly reviews Supreme Court cases that forbid prayer and/ or religious activities in school, an essential part of daily activities in religiously affiliated non-public schools that cannot continue in faith-based charter schools. The second part reviews educational and policy considerations dealing with how publicly-funded financial assistance might impact the religious missions and identities of religiously affiliated non-public schools that seek to become faith based charter schools; this section also reviews the constitutionality of both state aid to religious charter schools and the acceptability, if any, of prayer and religious activities in these schools. The article rounds out with a brief conclusion.

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