"Outsourcing Discrimination"
New court arguments add to right-wing efforts to let churches run public charter schools. It's not just church-state separation that's at stake: it's access to public services for all kids.
There have been a been some new developments in the ongoing conservative push to establish religious public schools. I wrote about this effort in detail early in the Spring.
To recap: charter schools are public schools authorized and managed by third-party organizations, but state law varies when it comes to who those authorizers and management groups can be. Authorizers hold the charter and are responsible for the school’s ultimate results. Management groups often handle the day-to-day, including (usually) hiring staff and implementing a curriculum. Some organizations are school districts themselves operating a school outside of their normal governance structures. Others are universities, libraries, or other educational entities.
In some states, traditional school districts can and do still provide governance, regardless of whether they run the day-to-day operations of the school.
Most states allow independent, non-profit organizations to manage charter schools, while some states even allow these management organizations to include for-profit companies. What they cannot be, at least for now, are churches or faith-based institutions.
The simple reason is that charter schools are statutorily designated as public schools, and public schools must remain non-religious. At least officially.
A number of legal cases in multiple states seek to remove this barrier by forcing states to permit religious organizations to manage charter schools. The idea behind their claim is that because states allow groups such as a non-religious non-profit to run charter schools, prohibiting a church or a synagogue from doing so amounts to religious discrimination.
The problem is not just that religious charter schools might be coming. It’s that the courts may also permit religious exemptions to a variety of oversight provisions governing traditional public schools, including conflict-of-interest and due process protections, open-meetings laws, and common-sense accountability and transparency rules.
Case Updates
Last week, a federal court heard such an argument from lawyers representing a Jewish provider in Oklahoma. A year ago, a similar case from a Catholic provider reached a 4-4 tie at the U.S. Supreme Court, but only because Justice Amy Coney Barrett recused herself due to a personal connection to the plaintiff lawyers. So, at that time, Oklahoma’s existing ban on religious charters stood for the moment.
In the new case, a judge will consider whether the school can open while courts consider larger constitutional questions, and will also weigh whether specific attributes of school operations—including student information—can be collected as normal for public charters.
Similar cases are coming up in California and Tennessee across multiple federal court jurisdictions, and the Florida attorney general has issued a ruling that could encourage religious charters to try to open in that state. All of that—as with a number of other questions relating to public education and religious organizations—makes it a near-certainty that the U.S. Supreme Court will once again become involved.
The problem here is two-fold. It’s not just—or even mostly—that religious charter schools may exist, it’s that those of us who follow these developments closely expect the Court to also permit religious exemptions to a variety of oversight provisions governing public schools, including conflict-of-interest and anti-discrimination protections, open-meetings laws, and common-sense accountability and transparency rules.
Few of us expect SCOTUS to pass on such a case nor, when they do hear it, to rule in any direction but for the church-based charter providers.
So as with a number of other policy questions right now in education, the task ahead here on this one is: how do public schools maintain a core value—in this case, meaningful separation between church and state—while operating on shifting legal and policy grounds.
Creating Safe Harbor
My friends Carol Burris, Preston Green, and Kevin Welner have written a policy brief for the National Education Policy Center at the University of Colorado that proposes a compelling policy solution to the very real likelihood that SCOTUS will permit church-run charter schools.
Their idea: state legislatures should restrict charter authorization and management to public school districts or other government institutions:
The most effective path forward is to convert states’ “independent charter” laws into “district-governed charter” laws. That is, laws would shift from requiring independently governed, nonprofit-operated charter schools to requiring charter schools to be created, staffed, and governed by their authorizing school districts or another government entity.
Under this framework, in other words, states would simply change their laws so that independent non or for-profit providers may no longer manage charter schools in the first place. Four states—Alaska, Kansas, Maryland, and Virginia—have already gone in this direction, so that:
no independent nonprofit corporation interposes itself as an ultimate governance entity between the authorizer and the school. Additional states, including California, Texas, and Wisconsin, have both independent and district-governed charter schools. Because district-governed charter schools are, when properly created and managed, unambiguously governmental entities, they are fully subject to constitutional requirements and civil rights laws.
Many in the school choice advocacy community would doubtless attack that legislative shift as a restriction on “parent choice.” But such a move would do nothing to decrease the sheer number of choice options. It would just re-route those options more directly into a more transparent and accountable public sector where traditional safeguards on anti-discrimination—and religious freedom for all children!—actually apply.
It would also be more efficient:
While the independent-charter approach places private nonprofit companies between the authorizer and the school, district-governed charters minimize the role of the “middleman,” pursuing the benefits of charter schools without establishing a marketplace for private corporations.
Finally, this strategy would throw up a new barrier to one real, underlying goal behind all of these right-wing policy efforts: making it easier for taxpayer-supported organizations serving kids and families to pick which kids and families they are willing to serve—something brief author Kevin Welner has called “outsourcing discrimination.”
In theory, tucking charter schools clearly into the portfolio of entities not just funded by but managed by government agencies would at least slow that effort down in the public school space.
For those of you reading this in the policy and legislative staff communities, take a look at the appendix to the NEPC brief for the technical pieces.
What the American Right is trying to do here is whittle away not only at a bedrock separation of church and state, but by doing so create sweeping exemptions to basic anti-discrimination laws applying to public service providers.
The Bottom Line
If you’re a regular reader here, you know a big theme in The Forum is how to craft meaningful but flexible public policy that reflects a consistent set of values. Those values include strong protections for and investments in kids and families, a focus on equity as well as excellence in education, the use of evidence to make smart decisions that improve people’s lives, and access to all of those opportunities for everyone.
I’m a religious man myself, but I see the spread of church-run public schools as a core threat not only to public education but to bigger, longer-standing values built into the American promise.
Add to that the more general effort to require posting of the Ten Commandments, voluntary and even involuntary prayer in public schools, and the use of Bible-based content in curricular materials otherwise intended for core subjects like reading and math.
Many of those threats may unfortunately be realized until big, sweeping changes like a durable progressive majority in the White House and Congress and expanding the U.S. Supreme Court can occur. So that means getting clever, and getting aggressive, in standing up the sort of protections we’re looking to make.
What the American Right is trying to do here is whittle away not only at a bedrock separation of church and state, but by doing so create sweeping exemptions to basic anti-discrimination laws applying to public service providers.
I wrote earlier this summer about the case SCOTUS agreed to hear out of Colorado that would allow publicly funded Catholic pre-K schools to reject LGBTQ+ families on religious grounds. And I have also argued that, historically, we need to see opposition to school busing as just as critical in the rise of Movement Christianity and the Religious Right as opposition to bans on public school prayer.
The latest push to create religious charter schools is one more development in that long, ongoing history.