A Solution To Charter School Religious First Amendment Problems

Charter school court cases of the past (and at least one of the future) turn on the wonky term “state actor.”

Is a charter school a state actor or not? If a charter school is a state actor, meaning that it is an arm of the government, then it must abide by the government’s rules, including First Amendment prohibition on religious instruction. If it is not a government actor, but a private business, then the charter school exists in a Constitution-free zone where it may set its own rules, including those that adhere to or promote a certain religion.

In a new article in the Drake Law Review, Preston Green (University of Connecticut) and Suzanne Eckes (University of Wisconsin-Madison) explain the nature of the problem and propose a solution.

Charter schools are ambiguous. They are privately owned and operated, but publicly funded and frequently claim to be “public” schools.

The ambiguity has been further fueled by court cases. Green and Eckes cite Caviness v. Horizon Community Learning Center, in which the Ninth Circuit U.S. Court held that the Arizona charter school’s operator was not a state actor. But that stands in contrast to Peltier v. Charter Day School, in which the Fourth Circuit U.S. Court found that the operator of the North Carolina charter school was a state actor, and therefore could not impose a discriminatory dress code. That case was appealed to the Supreme Court, but the court declined to hear it, thereby at least postponing the day when the Supreme Court would rule on whether a charter school is a state actor or not.

That day may come with the case of St. Isadore Catholic cyber charter school of Oklahoma. The Oklahoma Supreme Court ruled that the explicitly and deliberately religious charter school is a state actor, and therefore cannot skirt the state’s constitutional rules against spending public education money for religious purposes.

The Oklahoma Charter School Board has filed a petition with the Supreme Court to have the state supreme court decision overturned, asking the justices to decide two main points.

First, is the charter school a “state actor,” arguing that a charter school is not really a public school, and therefore doesn’t have to follow the same rules as a public school does (including rules against religious instruction and discrimination).

Second, the petition invokes the three decisions that have become the holy trinity of challenges to the wall between church and state. In Trinity Lutheran v. Comer, Espinoza v Montana Board of Revenue, and Carson v. Makin, the court has promoted the idea that the Free Exercise Clause takes precedent over the Establishment Clause.

The implications reach beyond the boundaries of states where political leaders are already pushing to send public taxpayer dollars to religious schools. Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education, noted that in light of these three decisions, “states will probably be forced to let churches and other religious institutions apply for charters and operate charter schools.”

Justice Sotomayor, when dissenting on Carson, noted that

in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

Green and Eckes suggest there is a path to clear up all this ambiguity, and to make it clear that charter schools are state actors. For the answer, they look to Lebron v. National Railroad Passenger Corp. Michael LeBron wanted to rent a billboard in an Amtrak station, was denied, and ended up suing Amtrak over First Amendment rights.

The 1995 decision hinged on whether or not Amtrak is a government actor, and in deciding the case, the court created the Lebron test, a three-pronged test of whether or not an entity is a state actor. It held that

Where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of that corporation’s directors, the corporation is part of the Government for purposes of the First Amendment.

That test has since been used in other cases, but not education.

Green and Eckes analysis is that current charter law probably does not pass the “special law” prong, which “can be satisfied either by the government’s creation of the corporation, or by the government’s authorizing of others to create a corporation.” Charter laws do satisfy the “governmental objectives” prong, but not the third one regarding the board of directors.

But Green and Eckes argue that a state could write its charter laws to meet all three prongs. The first prong would not be difficult; currently states have “extra” steps between state authority and the actual creation of the corporation that operates the charter. “[S]tates can satisfy the special law prong by authorizing applicants to form corporations pursuant to operating charter schools,” write the authors.

Meeting the third prong could, Green and Eckes suggest, be managed by giving the state final say over a list of initial members of the board.

The new process would have the incorporators submit a list of the initial board to the appointing authority for consideration in the application process. The final say over members of the board would lie with the appointing authority. The same process would apply to new members.

Following the guidelines and precedents that the authors lay out could, they argue “states can guarantee that charter school boards are all-purpose state actors,” thereby insuring that charter students have all the constitutional rights that public school students enjoy.

Of course, that is assuming that state legislatures want to establish charter schools as state actors that observe the same Constitutional restrictions as public schools. For those states where legislators want to establish charter schools as essentially private schools playing by their own rules, the Lebron test may serve as a guide for how to protect themselves in court and continue to maintain their Constitution-free zone.