Charter schools were codified into law with the intent of defining them as public institutions, says UConn's Preston Green, therefore secular and unable to provide religious education, but over the years courts sometimes have disagreed
While it may seem like a stretch almost as long as the Amtrak route from Chicago to California, a 1995 U.S. Supreme Court case involving the National Railroad Passenger Corp. could influence the future of charter schools and help answer the latest hot-topic question of whether they can offer religious education.
With 7,800 charter schools serving 3.7 million students nationwide, the larger question of whether they must respect students' constitutional rights like their public counterparts is one that affects families almost as much as whether the morning bus was on time.
UConn's Preston Green, the John and Maria Neag Professor of Urban Education and a professor of educational leadership and law, explains that courts since the early 2000s have found that charter schools are at once government entities and not, depending on the situation.
The 9th Circuit Court of Appeals held in 2010 that an Arizona charter school was not considered public when a teacher sued over false statements made about him related to his job.
But the 4th Circuit Court of Appeals in 2022 found that a North Carolina charter school was a public entity and must adhere to the Equal Protection Clause when it comes to a dress code - it couldn't require female students to wear skirts simply because they are "fragile vessels."
"Charter schools were designed as a hybrid of public and private schools, where they would have the best of both worlds," Green says. "They're public in terms of how they're funded, that they cannot charge tuition, and that they must proctor state exams. But they also get a lot of flexibility in how and what they teach and freedom from many of the rules and regulations that apply to public schools."
In Green's latest law review, "All Aboard!: Making Charter School Boards All-Purpose State Actors Under the Supreme Court's Amtrak Case," published this winter in the Drake Law Review with Suzanne Eckes from the University of Wisconsin-Madison, the problem with the public-private ambiguity becomes even more apparent when Oklahoma in 2023 approved the country's first virtual religious charter school. The U.S. Supreme Court decided Jan. 24 to hear an appeal of the case.
Green explains that when charter schools started popping up in the 1990s, people raised concerns about separation of church and state and questioned whether charter schools - which often designate areas of focus, like in the arts or STEM, to draw students - could do the same with religion.
To mitigate this, charter schools were codified into law with the intent of defining them as public institutions, he says, therefore secular and unable to provide religious education, but over the years courts sometimes have disagreed.
"Religion is important, but we're also talking about search and seizure, due process, equal protections, freedom of speech," Green says of the constitutional rights determined by the public-private question. "People are paying attention now because of the conversation around religion, but it's not just religion."
He continues, "If a student is suspended or expelled, do they get due process in the same way a public-school student would? All these issues are in play when charter schools claim they operate as private schools, and I think states ought to be concerned about this and have been surprised to find that charter schools might be able to act in these ways."
The 1995 case Lebron v. National Railroad Passenger Corp. determined Amtrak was behaving as a governmental agency, in part because Amtrak serves certain governmental objectives, and its board comprises members appointed by the government.
As a governmental agency, the Supreme Court found, it must abide by the First Amendment and allow the plaintiff, Michael A. Lebron, to purchase advertising space on the side of buses to display political messages.
Green says courts have applied the Lebron case in other seemingly disparate situations, including one when the National Center for Missing and Exploited Children was found to be a governmental agency and therefore required to uphold the Fourth Amendment and its protection from search and seizure.
The plaintiff in this case claimed the Center had no business searching his email, despite a message being flagged as child pornography, because it was a governmental entity. The court agreed.
When applied to charter schools, Green says, the Lebron litmus test falls short. Sure, their governmental purpose is to educate children. But since most have independently appointed governing boards - bodies that don't include members appointed by a mayor, town manager, or board of education, for instance - he contends any court would be justified in calling them private schools.
That means religious education could conceivably begin to appear in publicly funded charter schools from sea to shining sea.
"States need to be thinking about this and find ways to make sure these schools remain public in the way they were intended," Green says.
This is more than just a red state-blue state issue, he adds, one that's only applicable in rural communities and not big cities. It's a conversation that needs to be had in the 45 states with charter school legislation on the books.
"Schools are about community, they're the glue that keeps communities together," Green says. "When you start losing schools as that glue, then it impacts the community. I'm not saying there can't be school choice, but we must be very thoughtful about how that choice exists to balance a system that has a lot of competing issues."
