Is there a place for religious charter schools?

Yale Law Journal

Volumn 118, Issue 3, 2008, Pages 554-599

  Hillman, Benjamin Siracusa ^a  

^a YALE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 62749127924     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/20454720     Document Type: Review

References (373)

1. See Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 212-16 (1948) (Frankfurter, J., concurring).
2. JOSEPH P. VITERITTI, CHOOSING EQUALITY: SCHOOL CHOICE, THE CONSTITUTION, AND CIVIL SOCIETY 146-48 (1999).
3. Common schools, under the "pretense that religion has no legitimate place in public education," in reality "promoted a religious orthodoxy of [their] own that was centered on the teachings of mainstream Protestantism and was intolerant of those who were non-believers." Joseph P. Viteritti, Blaine's Wake: School Choice, the First Amendment, and State Constitutional Law, 21 HARV. J.L. & PUB. POL'Y 657, 666 (1998).
4. Contemporaries also recognized this flaw; thus, a late nineteenth-century commentator not only spoke against the "notorious[]" efforts of the Catholic clergy to obtain taxpayer dollars for their schools, but also acknowledged Protestant monopolization of the public school system, contending that "[i]f the public schools are sectarian, sects unrepresented in their management have as good a right as those represented to a share of the public money." Fanatics and the Schools, N.Y. TIMES, NOV. 9, 1891, at 4.
5. See sources cited supra note 3.
6. See Viteritti, supra note 3, at 670-73. Many states retain these restriaions.
7. Id. at 674-75.
8. A majority of the Supreme Court cases interpreting the First Amendment's Religion Clauses have involved education.
9. See Elizabeth Reilly, Education and the Constitution: Shaping Each Other & the Next Century, 34 AKRON L. REV. 1, 13-14 (2000) ;
10. infra note 160.
11. See Stephen Macedo, Constituting Civil Society: School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values, 75 CHI.-KENT L. REV. 417, 430 (2000).
12. Caroline M. Hoxby, The Supply of Charter Schools, in CHARTER SCHOOLS AGAINST THE ODDS 15 (Paul T. Hill ed., 2006) (discussing trends in charter school growth);
13. see Aaron Jay Saiger, School Choice and States' Duty To Support "Public" Schools, 48 B.C. L. REV. 909, 961 (2007) (highlighting the diversity of options that choice schools create).
14. See, e.g., CHESTER E. FINN, JR., BRUNO V. MANNO & GREGG VANOUREK, CHARTER SCHOOLS IN ACTION: RENEWING PUBLIC EDUCATION 161 (2000) (discussing Sankofa Shule, an Afro-centric charter school in Michigan);
15. ArtSpace Charter School, http://www.artspacecharter.org/ (last visited Nov. 24, 2008);
16. The César Chávez Public Charter Schools for Public Policy, School History, http://www.cesarchavezhs.org/ homeoffice/history/ (last visited Nov. 24, 2008).
17. See Eric A Hanushek et al., Charter School Quality and Parental Decision Making with School Choice, 91 J. PUB. ECON. 823, 824 n.1 (2007);
18. Bruno V. Manno et al., Charter Schools: Accomplishments and Dilemmas, 99 TCHRS. C. REC. 537 (1998). Minnesota passed the nation's first charter school law in 1991.
19. See Hanushek et al., supra, at 824.
20. See, e.g., THE RES. DEP'T. OF THE MINN. HOUSE OF REPRESENTATIVES, MINNESOTA'S CHARTER SCHOOL LAW (2005), available at http://www.house.leg.state.mn.us/ hrd/issinfo/sschtsch.pdf. Blurring the line between public and private schooling is a general feature of charter school statutes. Julie F. Mead, Devilish Details: Exploring Features of Charter School Statutes that Blur the Public/Private Distinction, 40 HARV. J. ON LEGIS. 349 (2003);
21. see Jeffrey R. Henig & Stephen D. Sugarman, The Nature and Extent of School Choice, in SCHOOL CHOICE AND SOCIAL CONTROVERSY 13, 23-24 (Stephen D. Sugarman & Frank R. Kemerer eds., 1999).
22. FINNET AL., supra note 9.
23. See infra Part I;
24. infra Section U.C.
25. See infra Part I.
26. Cf. PRESTON C. GREEN III & JULIE F. MEAD, CHARTER SCHOOLS AND THE LAW: ESTABLISHING NEW LEGAL RELATIONSHIPS 208 (2004) ("[C]harter schools are a relatively new phenomenon in public education. As such, the legal issues associated with them have only begun to evolve.").
27. The United States has taken a different path from other Western democracies, which provide public funding to private religious schools. See Viteritti, supra note 3, at 665 & n.34 (listing eleven such countries).
28. CARL F. KAESTLE, PILLARS OF THE REPUBLIC: COMMON SCHOOLS AND AMERICAN SOCIETY 1780-1860, at 166-67 (1983).
29. See Nathaniel Popper, Chartering a New Course, WALL ST. J., Aug. 31, 2007, at W11;
30. cf. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 231 (1948) (Frankfurter, J., concurring) ("The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny.").
31. The idea that the Constitution requires strict "separation of church and state" has deep roots in the American psyche, though the reality has never quite accorded with the rhetoric James Madison, the original advocate of separation, articulated a twofold danger of excessive state involvement in religion. First, Madison claimed, state sponsorship of religion risks religion's "establishment" and the oppression of members of other religions. Second, state sponsorship risks the corruption of religion. James Madison, Memorial and Remonstrance Against Religious Assessments, in JAMES MADISON: WRITINGS 29, 31, 32 (Jack N. Rakove ed., 1999).
32. In Supreme Court jurisprudence, the heyday of strict separation came in the mid-twentieth century, see McCollum, 333 U.S. at 211;
33. Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947), but even at the time it had its critics, see McCollum, 333 U.S. at 247 (Reed, J., dissenting) ("A rule of law should not be drawn from a figure of speech.").
34. See infra Section III.A.
35. See, e.g., Hannah Sampson, Hebrew Charter Ruled Kosher, MIAMI HERALD, Sept. 12, 2007, at B1 (quoting a school board member who worried about Ben Gamla Hebrew Charter School "more so than any other [school] because there is that constitutional issue that exists").
36. Cf. Hoxby, supra note 8, at 32, 35 (explaining that charter schools are more difficult to run "in an area with dispersed population than one with a dense population," and that the greatest concentration of charter schools can be found in "densely populated central cities of urban areas," though many rural areas also have charter schools).
37. See Kevin D. Breault, New Evidence on Religious Pluralism, Urbanism, and Religious Participation, 54 AM. SOC. REV. 1048, 1050 (1989) (noting that in contrast to urban areas, nonurban areas disproportionately include areas where "religiously conservative or traditional religions are strongly represented [with] very high religious participation and low religious diversity"; some nonurban places, like the "unchurched West," are religiously pluralistic but have a low religious participation rate).
38. See ERIC ROFES, HOW ARE SCHOOL DISTRICTS RESPONDING TO CHARTER LAWS AND CHARTER SCHOOLS? 1-2 (1998) (noting that as compared with suburban or rural districts, urban districts suffer less of a negative impact on existing schools when charter schools are created).
39. In creating this definition, I draw upon the work of Lawrence Weinberg. See LAWRENCE D. WEINBERG, RELIGIOUS CHARTER SCHOOLS: LEGALITIES & PRACTICALITIES, at xix-xxi (2007). Scholars have only recently begun to treat religious charter schools distinctly. Complicating matters, the schools themselves, seeking to avoid the connotations of the "religious" label, do not necessarily identify themselves this way.
40. See Preston Green, III, Charter Schools and Religious Institutions: A Match Made in Heaven?, 158 EDUC. L. REP. 1, 4, 15-17 (2001);
41. Frank R. Kemerer, The Legal Status of Privatization and Vouchers in Education, in PRIVATIZING EDUCATION: CAN THE MARKETPLACE DELIVER CHOICE, EFFICIENCY, EQUITY, AND SOCIAL COHESION? 39, 43 (Henry M. Levin ed., 2001).
42. See 20 U.S.C § 7221i(i)(E) (Supp. 2005) ("The term 'charter school' means a public school that... is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution.");
43. U.S. DEP'T OF EDUC, CHARTER SCHOOLS PROGRAM: TITLE V, PART B: NON- REGULATORY GUIDANCE 6-7 (2004), available at http://www.ed.gov/policy/elsec/guid/cspguidance03.pdf (explaining that "the definition of a 'charter school' under State law is a matter of State policy" but to receive federal funds, the school must meet the criteria of 20 U.S.C. § 722i(1)).
44. See GREEN & MEAD, supra note 15, at 166-67;
45. Robert J. Martin, Charting the Court Challenges to Charter Schools, 109 PENN. ST. L. REV. 43, 89-90 (2004).
46. See Martin, supra note 28, at 54-55.
47. See Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000);
48. Porta v. Klagholz, 19 F. Supp. 2d 290 (D.N.J. 1998). States, however, vary in how they statutorily treat charter schools.
49. See GREEN &MEAD, supra note 15, at 31 ("[C]harter schools have been variously described as 'quasi-public,' 'other non-public,' and 'hybrid public schools.'" (citation omitted));
50. Henig & Sugarman, supra note 11, at 23-24.
51. See, e.g., WEINBERG, supra note 25, at 2.
52. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002);
53. Henig & Sugarman, supra note 11, at 23-24, 27-28.
54. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971);
55. see also infra Section II.B (discussing the application of the First Amendment to religious charter schools). Religious education providers could partner with religious charter schools to offer "released time" programming. To be constitutional, released time programming must be offered only to students that have parental permission and affirmatively choose to participate. Individuals not formally part of the school must run it, and it cannot receive public funding. It may also need to take place off-site.
56. See Zorach v. Clauson, 343 U.S. 306 (1952).
57. See WEINBERG, supra note 25, at xvii, xix;
58. Sarah M. Isgur, Note, "Play in the Joints": The Struggle To Define Permissive Accommodation Under the First Amendment, 31 HARV. J.L. &PUB. POL'Y 371, 373-79 (2008) (discussing the current state of the law on "permissive accommodation").
59. See Isgur, supra note 34, at 375.
60. Id. at 378.
61. See WEINBERG, supra note 25, at xix-xxi.
62. See id.
63. See, e.g., Charles C Haynes, Can Arabic, Hebrew Public Schools Turn Backs on God?, TUCSON CITIZEN, Sept. 17, 2007, http://www.tucsoncitizen.com/daily/opinion/63155.php.
64. See id.
65. Compare Bd. of Educ. of Kiryas Joel ViIl. Sch. Dist. v. Gramet, 512 U.S. 687, 705-10 (1994) (opinion of Souter, J.) (arguing that a specially drawn school district to accommodate Hasidic Jews constituted establishment),
66. with id. at 732-35, 738-41, 743-45 (Scalia, J., dissenting) (arguing that the district validly accommodated cultural distinctiveness).
67. In recent years, districts have also created noncharter public schools centered in cultures associated with religions, like the Khalil Gibran International Academy. Run by the New York City Department of Education, Khalil Gibran focuses on the study of Arabic language and Middle Eastern culture. The school has emphatically denied that religion or political ideology play any role, but critics have nevertheless associated it with "radical Muslim religious schools" and denounced it as a "terrorist training camp." Kim Ghattas, New York Arabic School Sparks Row, BBC NEWS, Sept. 6, 2007, http://news.bbc.co.uk/2/hi/americas/ 6980966.stm;
68. see Andrea Elliott, Her Dream, Branded as a Threat: How a Chorus of Critics Cost a Muslim Educator Her School, N.Y. TIMES, Apr. 28, 2008, at A1. Similarly, public schools that primarily serve members of a single religious group, like Carver Elementary School in San Diego, have caused controversy with their attempts to accommodate religious students.
69. See Isgur, supra note 34, at 379-84.
70. Tarek ibn Ziyad Academy, http://www.tizacademy.com/ (last visited Nov. 24, 2008).
71. Id.
72. Tarek ibn Ziyad Academy, Our School, http://www.tizacademy.com/Our- School.html (last visited Nov. 24, 2008).
73. Tarek ibn Ziyad Academy, supra note 43.
74. Tammy J. Oseid, A Place To Belong: At Tarek ibn Ziyad Academy, Students Can Study Arabic, Stay in Touch with Their Culture and "Just Be Themselves," ST. PAUL PIONEER PRESS, NOV. 7, 2004, at B1.
75. Id.
76. Id.
77. Liala Helal, Arabic Charter School Opens Second Campus, ST. PAUL PIONEER PRESS (local ed.), Aug. 24, 2007, at B1.
78. Popper, supra note 18.
79. Oseid, supra note 47.
80. Id.
81. Obstacles might include a schedule that makes it difficult to pray daily, a calendar that ignores Muslim holidays, the teasing of Muslim students for wearing religious garb, harassment of Muslim students as "terrorists," food that does not meet Muslims' dietary restrictions, and neglect of the history and culture of the Middle East. See Neil MacFarquhar, Resolute or Fearful, Many Muslims Turn to Home Schooling, N.Y. TIMES, Mar. 26, 2008, at A14. As TIZ's director contended, "Our kids were not being served at other schools."
82. Oseid, supra note 47.
83. See Katherine Kersten, Teacher Breaks Wall of Silence at State's Muslim Public School, STAR TRIB. (Minneapolis), Apr. 9, 2008, at B1.
84. See Wallace v. Jaffree, 472 U.S. 38, 67 (1985) (O'Connor, J., concurring in the judgment) ("Nothing in the United States Constitution ... prohibits public school students from voluntarily praying at any time before, during, or after the schoolday.");
85. Zorach v. Clauson, 343 U.S. 306 (1952) (approving off-site, separately provided "released time" religious education).
86. Editorial, Minnesota Madrassa, INVESTOR'S BUS. DAILY, Apr. 11, 2008, at A12.
87. Kersten, supra note 55.
88. See Oseid, supra note 47.
89. See Andy Birkey, Education Department Findings on Tarek ibn Ziyad Academy Contradict Published Reports, MINN. MONITOR, May 20, 2008, http://minnesotaindependent.com/ 3960/education-department- findings-on-tarek-ibnziyad-academy-contradict-published-reports.
90. A journalist has suggested that the teacher, a conservative education activist, may have fabricated her claims after having read a newspaper column in advance of her visit that detailed supposed violations. David Brauer, How Favoritism Fueled a TV News Fracas, MINNPOST.COM, May 29, 2008, http://www.minnpost.com/davidbrauer/2008/05/29/2016/ how-favoritism- fueled-a-tv-news-fracas;
91. David Brauer, Kersten's Arabic-School Source: Even More to the Story, MINNPOST.COM, Apr. 18, 2008, http://www.minnpost. com/ davidbrauer/2008/04/18/1564/kerstens-arabic-school-source-even-more-to-the- story.
92. See Birkey, supra note 60.
93. See, e.g., Katherine Kersten, Are Taxpayers Footing Bill for Islamic School in Minnesota?, STAR TRIB. (Minneapolis), Mar. 9, 2008, at B1.
94. See Sarah Lemagie, 2 Changes Ordered at Charter School, STAR TRIB. (Minneapolis), May 20, 2008, at B1.
95. See Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000);
96. infra notes 169-177 and accompanying text.
97. See supra note 45 and accompanying text.
98. See, e.g., Neil MacFarquhar, For Muslim Students, a Debate on Inclusion, N.Y. TIMES, Feb. 21, 2008, at A14 (noting that the appearance of "ranks of bearded young men and veiled women" in the Muslim Student Association chapters of certain American universities "might come across as 'way Muslim' or even extremist" to an outsider).
99. See infra Section U.C.
100. Ben Gamla Hebrew Charter School, School Administration & Philosophy, http://www.bengamlacharter.com/welcome/ (last visited Nov. 24, 2008).
101. See BABYLONIAN TALMUD BAVABASRA 21a (Mesorah Publ'ns 1989). Critics seeking to portray Ben Gamla Charter School as religious have noted that Joshua Ben Gamla's ancient schools provided a religious education. Arguably, the Talmud confirms the criticism, noting that the schools enabled people to remember the Torah's teachings.
102. See id. The criticism, however, is anachronistic, as Jewish sources of the time did not draw distinctions between secular and religious.
103. Abby Goodnough, Hebrew Charter School Spurs Florida Church-State Debate, N.Y. TIMES, Aug. 24, 2007, at A1.
104. Ben Gamla Hebrew Charter School, supra note 68.
105. Id.
106. Posted photographs reveal a few staff members and the occasional student to be wearing kippot, the skullcaps worn by observant Jews, but only a small minority is wearing the distinctive clothing of strictly observant Jews.
107. See Ben Gamla Hebrew Charter School, Our Photos, http://www.bengamlacharter.com/our-photos/ (last visited Nov. 24, 2008).
108. Larry Luxner, Hebrew at Florida Charter School Approved, Challenges Remain, JEWISH J. (L.A.), Sept. 21, 2007, at 27, available at http://www.jewishjournal.com/home/ preview.php?id=18228.
109. Weekend Edition Sunday (NPR radio broadcast Sept. 16, 2007) ("This is a public school. You know, the language-the second language is Hebrew. You can't teach a language outside of a cultural context. So clearly there is Jewish culture that goes along with teaching the Hebrew language."), available at http://www.npr.org/templates/story/ story.php?storyId= 14453541;
110. see also Haynes, supra note 39 (suggesting that teaching Arabic or Hebrew isolated from their religious context may be not only difficult, but absurd).
111. Telephone Interview with Peter Deutsch, Founder, Ben Gamla Charter School (Dec. 2, 2008).
112. Id.
113. Id.
114. See Goodnough, supra note 70 ;
115. Luxner, supra note 74.
116. Goodnough, supra note 70.
117. See Luxner, supra note 74.
118. Sampson, supra note 21;
119. see Luxner, supra note 74;
120. Mary Ann Sorrentino, Op-Ed., Adding More Hebrew Schools a Mistake, S. FLA. SUN-SENTINEL, Sept. 20, 2007, at 23A.
121. See Avi Frier, Speaking Out of School, FLA. JEWISH NEWS, July 27, 2007, http://www.floridajewishnews.eom/ site/a/Speaking-Out-of-School/;
122. Popper, supra note 18.
123. See Popper, supra note 18.
124. Mezuzot are small pieces of parchment containing biblical verses that many Jews and Jewish institutions mount on their doorframes, usually in a decorative case, to fulfill a Biblical commandment. See JewFAQ.Org, Judaism 101: Signs and Symbols, http://www.jewfaq.org/signs.htm (last visited Nov. 24, 2008).
125. See Luxner, supra note 74;
126. Telephone Interview with Peter Deutsch, supra note Error! Bookmark not defined.; Ben Gamla Hebrew Charter School, School Forms, School Calendar 2008-2009, http://www.bengamlacharter.com/school-forms/School%2oCalendar%202008- 09.pdf (last visited Nov. 24, 2008).
127. Telephone Interview with Peter Deutsch, supra note Error! Bookmark not defined..
128. Luxner, supra note 74;
129. Weekend Edition Sunday, supra note 75.
130. See Frier, supra note 83;
131. Sampson, supra note 21.
132. See Kersten, supra note 62.
133. Some Jewish leaders believe that a Jewish person's likelihood of perpetuating the Jewish religion through subsequent generations correlates with his level of Jewish observance, see, e.g., ALAN M. DERSHOWITZ, THE VANISHING AMERICAN JEW 24-46 (1997), and they fear that schools like Ben Gamla, which cannot promote Jewish observance, will draw students away from Jewish day schools. Of course, these fears may underestimate the extent to which Jewish students who would otherwise have attended public schools may develop their Jewish identity more strongly as a result of having attended culturally Jewish schools like Ben Gamla.
134. See PETER SCHUCK, DIVERSITY IN AMERICA 87-94, 264-71 (2003) (discussing expansion of ethnic and religious diversity wrought by recent immigration).
135. See Martha Minow, Partners, Not Rivals?: Redrawing the Lines Between Public and Private, Non-Profit and Profit, and Secular and Religious, 80 B.U. L. REV. 1061, 1063, 1075, 1077 (2000).
136. C.H. Edson, Detroit's Demise, 23 EDUC. RESEARCHER 34, 34 (1994).
137. Paul T. Hill, The Supply-Side of School Choice, in SCHOOL CHOICE AND SOCIAL CONTROVERSY, supra note 11, at 140, 143, 149-52.
138. See THOMAS M. SHAPIRO, THE HIDDEN COST OF BEING AFRICAN AMERICAN: HOW WEALTH PERPETUATES INEQUALITY 167 (2004) (discussing the economic stratification between families of public and private school attendees).
139. See Heritage Foundation, School Choice: Choices in Education, http://www.heritage.org/research/education/schoolchoice/ (last visited Nov. 24, 2008) (discussing the status of school choice in each state);
140. Heritage Foundation, School Choice: Types of School Choice, http://www.heritage.org/research/education/schoolchoice/ typesofschoolchoice.cfm (last visited Nov. 24, 2008) (detailing various forms of school choice).
141. See, e.g., Sam Dillon, 2 School Entrepreneurs Lead the Way on Change, N.Y. TIMES, June 19, 2008, at A16;
142. Jodi Wilgoren, Seeking To Clone Schools of Success for Poor, N.Y. TIMES, Aug. 16, 2000, at A1. The most prominent such network is the Knowledge is Power Program (KIPP), which has drawn attention for its ability to turn low-income students into high achievers.
143. See Jay Mathews, New Report from KIPP Charters, Wash. Post Class Struggle, Apr. 20, 2008, http://www.washingtonpost.com/wp-dyn/contenl/ article/2008/04/20/ AR2008042001762.html.
144. See Bruce Fuller, The Public Square, Big or Small? Charter Schools in Political Context, in INSIDE CHARTER SCHOOLS: THE PARADOX OF RADICAL DECENTRALIZATION 12, 14-15, 30 (Bruce Fuller ed., 2000) (discussing grassroots and specific nature of charter schools);
145. NAT'L CHARTER SCH. RESEARCH PROJECT, QUANTITY COUNTS: THE GROWTH OF CHARTER SCHOOL MANAGEMENT ORGANIZATIONS 9-13 (2007), http://education.tulane.edu/ documents/QuantityCounts.pdf (discussing the shift from locally run to management organization-run charter schools);
146. infra notes 178-185 and accompanying text.
147. Hill, supra note 95, at 140, 143, 149-52. Choice, however, has critics. The National School Boards Association, for example, has argued that vouchers will "lead to the balkanization of American education and culture" and that "the public interest in promoting an American culture and identity will be ignored or diminished."
148. See MICHAEL J. KAUFMAN, EDUCATION LAW, POLICY, AND PRACTICE: CASES AND MATERIALS 194 (2005) (discussing MICHAEL A RESNICK, NAT'L SCH. BDS. ASS'N, WHY VOUCHERS WON'T WORK (1998)).
149. Robert K. Vischer, The Sanctity of Conscience in an Age of School Choice: Grounds for Skepticism, 6 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 81, 83 (2006).
150. Minow, supra note 93, at 1077.
151. See Mark R. Warren, Communities and Schools: A New View of Urban Education Reform, 75 HARV. EDUC. REV. 133, 158-62 (2005);
152. Amelia E. Lester, Improving Instruction Through Community Organizing, HARV. GRADUATE SCH. OF EDUC. NEWS, May 1, 2004, http://www.gse.harvard.edu/news/features/ warren05012004.html.
153. Warren, supra note 103.
154. 521 U.S. 203, 222-23,232-33 (1997).
155. 530 U.S. 793, 807-08 (2000) (plurality opinion).
156. 403 U.S. 602, 612-13 (1971).
157. 521 U.S. at 222-23 (internal quotation marks omitted) ;
158. see Mitchell, 530 U.S. at 807-08.
159. Agostini, 521 U.S. at 234.
160. Id. at 234-35.
161. 530 U.S. 793.
162. Id.
163. Agostini, 521 U.S. at 225-26 (describing the rule of School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985), in which the Court held that a remedial education program similar to the one at issue in Agostini violated the Establishment Clause).
164. See, e.g., Aguilar v. Felton, 473 U.S. 402, 411-14 (1985) (holding unconstitutional a program that paid public school teachers to provide remedial education for disadvantaged children in parochial schools). Agostini overturned Aguilar.
165. See Agostini, 521 U.S. at 207, 237.
166. Examples include Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993), which rejected an Establishment Clause challenge to a federal program funding sign-language interpreters for deaf children, including those attending religious schools;
167. Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481 (1986), which rejected an Establishment Clause challenge to a scholarship program that included funding for a student studying to become a pastor;
168. and Mueller v. Allen, 463 U.S. 388 (1983), which rejected an Establishment Clause challenge to a state tax deduction for educational expenses including religious school tuition.
169. Although Mitchell commanded the support of only four Justices-with Justice O'Connor concurring in the judgment to emphasize that she continued to perceive a distinction between direct and indirect aid, see 530 U.S. at 842-43 (O'Connor, J., concurring in the judgment)-changes in the Court's composition since Mitchell suggest that its holding might today command the support of a majority.
170. 530 U.S. at 810, 830.
171. Id. at 813 (internal quotation marks omitted) (quoting Agostini, 521 U.S. at 231).
172. Id. at 814-16. The Supreme Court still refers to the test as the Lemon test, though the current formulation of the test comes from Agostini and Mitchell. See, e.g., Zelman v. SimmonsHarris, 536 U.S. 639,668-70 (2002) (O'Connor, J., concurring).
173. 536 U.S. 639.
174. Id. at 653, 655.
175. Cf. Bowen v. Kendrick, 487 U.S. 589, 602-03 (1988) (finding a "legitimate secular purpose" in a statute that provided funding to grantees, including religious organizations, to counsel adolescents about "premarital sexual relations, pregnancy, and parenthood");
176. Mueller v. Allen, 463 U.S. 388, 401 (1983) (upholding a state tax deduction for educational expenses under which ninety-six percent of the benefits went to parents of religious school attendees).
177. Zelman, 536 U.S. 655-56.
178. Id. at 658-59;
179. id. at 663-64 (O'Connor, J., concurring).
180. See id. at 647.
181. Id. at 652.
182. See Pearl Rock Kane & Charles J. Lauricella, Assessing the Growth and Potential of Charter Schools, in PRIVATIZING EDUCATION, supra note 26, at 203, 216.
183. Zelman, 536 U.S. at 649-54.
184. See id. at 653-54.
185. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
186. Madison, supra note 19, at 32.
187. See Bowen v. Kendrick, 487 U.S. 589, 616 (1988) ("[T]he 'entanglement' prong of the Lemon test has been much criticized over the years.").
188. Agostini v. Felton, 521 U.S. 203, 232-33 (1997);
189. see Lemon, 403 U.S. at 612-13. In Agostini, Justice O'Connor claimed that "[w]hether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis," 521 U.S. at 232, but her supporting citations came mostly from the 1970s-the short-lived heyday of entanglement analysis.
190. See Bowen, 487 U.S. at 615-16 (discussing the "Catch-22" of entanglement-based arguments that "the very supervision of the aid to assure that it does not further religion renders the statute invalid").
191. Aguilar v. Felton, 473 U.S. 402, 412-13 (1985);
192. see also Bowen, 487 U.S. at 615-17 (discussing Aguilar).
193. As Bowen noted, the Supreme Court has found the entanglement prong most relevant in cases involving aid to parochial schools. 487 U.S. at 616.
194. Agostini, 521 U.S. at 234 (citingBowen, 487 U.S. at 615-17).
195. 487 U.S. at 593-94;
196. see Michele Estrin Gilman, Fighting Poverty with Faith: Reflections on Ten Years of Charitable Choice, 10 J. GENDER RACE & JUST. 395, 405-09 (2007) (discussing Bowen, the schools cases, and charitable choice).
197. Bowen, 487 U.S. at 602-03, 606-08.
198. Id. at 609, 612.
199. Id. at 617.
200. See Agostini, 521 U.S. at 232-35;
201. Bowen, 487 U.S. at 615-17.
202. Some scholars would go even further, arguing that charter schools should be subject to few constitutional restraints. The underlying premise of this argument is that "[although . . . states treat charter schools as public schools . . . . the lack of regulation, private control, and management of the schools suggests charter schools may not be state actors." Jason Lance Wren, Note, Charter Schools: Public or Private? An Application of the Fourteenth Amendment's State Action Doctrine to These Innovative Schools 19 REV. LITIG. 135, 147 (2000). It remains unsettled if constitutional safeguards apply to charter schools, but many observers consider charter schools to be state actors (and hence subject to constitutional requirements) because they are usually designated as public schools, required to be nonsectarian, publicly financed, and tuition-free.
203. See Martin, supra note 28, at 54-55. Others have argued that excluding only religious organizations from receiving school funding might constitute impermissible viewpoint discrimination.
204. See, e.g., Joshua Edelstein, Note, Zelman, Davey, and the Case for Mandatory Government Funding for Religious Education, 46 ARIZ. L. REV. 151 (2004). Yet in Locke v. Davey, die Supreme Court held that a state's refusal to fund devotional theology instruction as part of an "otherwise inclusive" scholarship program did not violate the First Amendment. 540 U.S. 712, 715 (2004). The Court explained that there were certain "state actions permitted by the Establishment Clause but not required by the Free Exercise Clause," and that the state's refusal to fund devotional training fell within the "play in the joints" between the two clauses.
205. Id. at 718-19.
206. Without conclusively answering the question of whether a state could exclude only religious organizations from receiving charter school funding, Locke makes clear that the Supreme Court recognizes a distinction between Zelman's holding that states may fund religious education in certain circumstances, and the idea that they must do so. For now, it appears that the Federal Constitution neither requires nor prohibits states from funding religious charter schools. Several state courts have interpreted state constitutional provisions forbidding aid to religious institutions not to violate the First Amendment's Free Exercise Clause, and have used those provisions to strike down the inclusion of religious schools in voucher programs. E.g., Bush v. Holmes, 886 So. 2d 340, 344, 364-65 (Fla. Dist. Ct. App. 2004) (looking to Locke in construing state constitution's "no aid" provision to not violate Free Exercise Clause, and concluding that a school voucher program that included religious schools violated the "no aid" provision), aff'd in part, 919 So. 2d 392,412-13 (Fla. 2006) (declining to consider the "no aid" provision, but striking down the program on other grounds);
207. Chittenden Town Sch. Dist. v. Dep't of Educ., 738 A.2d 539, 541-42, 562-64 (Vt. 1999) (finding that state constitution's "compelled support clause" forbids a school district from reimbursing students for sectarian school tuition where the funds might support religious worship, and that the exclusion of sectarian schools from a reimbursement program "plainly does not" violate the Free Exercise Clause). State constitutions play an important role in this area: the skepticism of publicly funded religious schools articulated by the Florida courts in Bush may help account for the precautions Ben Gamla Charter School takes.
208. See sources cited supra note 27.
209. See, e.g., Editorial, supra note 57;
210. Popper, supra note 18;
211. Sorrentino, supra note 82. Some critics fear that religious fanatics will use public money to pursue an objectionable agenda.
212. See, e.g., Daniel Pipes, From Sea to Shining Sea, JERUSALEM POST, Sept. 6,2007, at 16.
213. See infra notes 149-159 and accompanying text.
214. See Saiger, supra note 8, at 948-51, 961, 969.
215. Richard A. Baer, Jr., "Strict Neutrality" and Our Monopoly System, in THE SCHOOL-CHOICE CONTROVERSY: WHAT IS CONSTITUTIONAL? 15, 15 (James W. Skillen ed., 1993);
216. see also Martin H. Redish & Kevin Finnerty, What Did You Learn in School Today? Free Speech, Values Inculcation, and the Democratic-Educational Paradox, 88 CORNELL L. REV. 62,69 (2002) ("It would be both practically and theoretically impossible to completely prevent the governmental values inculcation that occurs in the educational process . . . .").
217. See Viteritti, supra note 3, at 666-68.
218. See Joanne M. Marshall, Nothing New Under the Sun: A Historical Overview of Religion in U.S. Public Schools, 39 EQUITY & EXCELLENCE IN EDUC. 181, 183-85, 190 (2006).
219. A few do still try, at least until challenged. See, e.g., Press Release, Am. Civil Liberties Union, Texas School Board Agrees To Stop Teaching Unconstitutional Bible Class in Public Schools (Mar. 5, 2008), http://www.aclu.org/religion/schools/34356prs20080305.html.
220. See Marshall, supra note 150, at 183-85, 190.
221. See ANNE MARIE LOFASO, AM. CONSTITUTION SOC'Y, THE CONSTITUTIONAL DEBATE OVER TEACHING INTELLIGENT DESIGN AS SCIENCE IN PUBLIC SCHOOLS (2005), http://www.acslaw.org/pdf/Intelligent-Design-White Paper.pdf. But see Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 765 (M.D. Pa. 2005) (holding that the teaching of intelligent design violates die Establishment Clause). The Supreme Court has not considered intelligent design, but did strike down a law requiring the teaching of "creation science" alongside evolution because the law lacked a secular purpose and promoted religious belief. Edwards v. Aguillard, 482 U.S. 578 (1987).
222. See, e.g., News Release, Denver Pub. Sch., West High School To Hold 64th Annual Singing Christmas Tree Concert (Dec. 1, 2004), http://www.dpsk12.org/news/press/2004/12/ic.shtml. In fact, schools sometimes face criticism for secularizing their assemblies.
223. See Hannity & Colmes (Fox News television broadcast Dec. 11, 2003) (transcript available at http://www.foxnews.com/story/o,2933,105603,00. html).
224. See FRANKLYN S. HAIMAN, RELIGIOUS EXPRESSION AND THE AMERICAN CONSTITUTION 63-64 (2003) (explaining that at Christmas assemblies, non-Christians may consider "Jingle Bells" fine but "Silent Night" offensive, while Christians have trouble seeing the distinction as more than "picayune" ) ;
225. see, e.g., Charles Haynes, How To Handle Religious Holidays in Public Schools, FREEDOM F., Dec. 9, 2001, http://www.freedomforum. org/templates/document.asp?documentID=i5470 ("Generally, courts view Santa Claus and Christmas trees as secular in nature. But keep in mind that many people still view these symbols as coming from a religious tradition. So while it may be constitutional to put up trees and Santas everywhere in the school, it might not be the right or sensitive thing to do.");
226. Shira D. Kieval, Tree for Some, Thorn for Others, HARV. CRIMSON, Dec. 4, 2001, at 6, available at http://www.thecrimson. com/article.aspx?ref=160975 (articulating the author's objections to the placement of a Christmas tree in her college dining hall, and the disbelief of others that anyone could be offended by a "'simple Christmas tree'").
227. 406 U.S. 205 (1972).
228. See id. at 210-11 ("They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life . . . ."). The parents in Yoder sought to keep their children out of school; where religious minorities challenge a public school's secular values as a violation of their religious beliefs and seek to change the school's curriculum, they almost invariably lose.
229. See, e.g., Parker v. Hurley, 514 F.3d 87 (ist Cir. 2008) (rejecting claims that a school's use of books promoting tolerance of gay persons and couples violated parents' free exercise or due process rights).
230. See, e.g., James Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics, 54 UCLA L. REV. 547, 560 (2007) (discussing a broad "trend among evangelical Christians during the 1970s, 1980s, and 1990s" to exit public schools "because they objected to the values being taught there");
231. Charles J. Russo, Same-Sex Marriage and Public School Curricula: Preserving Parental Rights To Direct the Education of Their Children, 32 U. DAYTON L. REV. 361, 381 (2007) ("[M]ore than 1 million children . . . are home schooled, often due to parental concerns over the treatment of religion and issues associated with values formation in public schools.");
232. see also Mozert v. Hawkins County Bd. of Educ, 827 F.2d 1058, 1060 (6th Cir. 1987) (discussing plaintiffs who left their school system because of practices offensive to their religious beliefs).
233. MacFarquhar, supra note 54.
234. These conflicts have involved: whether schools may feature prayer or moments of silence, see Wallace v. Jaffree, 472 U.S. 38 (1985);
235. Engel v. Vitale, 370 U.S. 421 (1962);
236. whether students can be required to say the Pledge of Allegiance or salute the flag, see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004);
237. W. Va State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943);
238. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940);
239. whether a school may teach creationism, see Edwards v. Aguillard, 482 U.S. 578 (1987);
240. Epperson v. Arkansas, 393 U.S. 97 (1968);
241. whether a public university must fund a religious student periodical in the same manner as a secular periodical, see Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995);
242. whether a school may remove an "objectionable" book from the school library, see Bd. of Educ. v. Pico, 457 U.S. 853, 856 (1982);
243. whether religious groups must be allowed access to school facilities on equal terms, see Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), Widmar v. Vincent, 454 U.S. 263 (1981);
244. whether public entities can fund transportation, textbooks, teachers of secular subjects, or aides for disabled students in religious schools, see Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993);
245. Bd. of Educ. v. Allen, 392 U.S. 236 (1968); Everson v. Bd. of Educ, 330 U.S. 1 (1947);
246. Cochran v. La. State Bd. of Educ., 281 U.S. 370 (1930);
247. and whether schools can cooperate with religious organizations as part of a "released time" arrangement, see Zorach v. Clauson, 343 U.S. 306 (1952);
248. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203 (1948).
249. See Karen W. Powe, Values Education and the Local School Board, UPDATING SCH. BOARD POL'YS (Nat'l Sch. Bds. Ass'n, Alexandria, Va.), 1993, at 3. Local variation has decreased recently, although American public education still exhibits greater variation than education elsewhere.
250. See Thomas B. Timar, The Institutional Role of State Education Departments: A Historical Perspective, 105 AM. J. EDUC. 231, 231-35 (1997).
251. See, e.g., Kristi L. Bowman, An Empirical Study of Evolution, Creationism, and Intelligent Design Instruction in Public Schools, 36 J.L. & EDUC. 301, 358-59, 366-67, 375-76 (2007).
252. See Brenda Lee, Kitzmiller v. Dover Area School District; Teaching Intelligent Design in Public Schools, 41 HARV. C.R.-C.L. L. REV. 581, 584-88 (2006) (explaining that because courts cannot mend America's "huge cultural divide" "prophylactically, " only individually targeted lawsuits will curb the teaching of creationism, and even that might not succeed).
253. See Forman, supra note 158, at 561 ("By the end of the 1980s, the evangelical Christian critique of the public school system was fully articulated. Public schools had become so committed to secularism that they were necessarily hostile to religion . . . . For many, these changes together amounted to state establishment of the religion of secularism in the public schools.");
254. see, e.g., Parker v. Hurley, 514 F.3d 87 (ist Cir. 2008);
255. Mozert v. Hawkins County Bd. of Educ, 827 F.2d 1058, 1063 (6th Cir. 1987).
256. Redish & Finnerty, supra note 148, at 103.
257. Id. at 108-09.
258. See Marshall, supra note 150, at 190;
259. Viteritti, supra note 3, at 666-69 (explaining that in the nineteenth century, courts rejected challenges to schools' ubiquitous use of the King James Bible, as "[m]ost judges at the time refused to recognize the Bible as a sectarian book").
260. See supra note 155 and accompanying text.
261. 116 F. Supp. 2d 897 (W.D. Mich. 2000).
262. Id. at 903. Vanguard's founder, J.C Huizenga, claims that his "faith does not influence in any way what I do in public education," but he also describes himself as a Christian with a "deep and abiding faith."
263. Karen Oprea, National Heritage Academies: The Good Is the Enemy of the Great, COMPASSION & CULTURE, May 2003, at 1, 3, available at http://www.capitalresearch.org/pubs/pdf/x3773143532.pdf. He explained in an interview that he was persuaded to "imbu[e] students with morality" by his encounter with an "atheist" social scientist who told him that "the longest-lasting societies were those that adhered to absolutes," in particular "the Ten Commandments."
264. Id.
265. Dougherty, 116 F. Supp. 2d at 913 (internal quotation marks omitted).
266. Id. (internal quotation marks omitted).
267. The plaintiffs presented expert testimony that the school's allegedly secular virtues did not have a Greek foundation and had a Christian foundation, but the judge did not credit this testimony. Id. at 913;
268. see Affidavit of Sara Rappe, Ph.D., Dougherty, 116 F. Supp. 2d 897, available at http://www.seaverlink.com/nha/rappe.htm;
269. Declaration of H. Coleman McGehee Jr., Dougherty, 116 F. Supp. 2d 897, available at http://www.seaverlink.com/nha/mcgehee.htm.
270. Dougherty, 116 F. Supp. 2d at 913.
271. See supra Part I.
272. 512 U.S. 687, 735-41 (1994) (Scalia, J., dissenting).
273. Banning values from the educational process entirely would also take neutrality seriously, but that, of course, is impossible. See Redish & Finnerty, supra note 148, at 104 ("To prohibit schools from conveying values, then, would effectively preclude schools from teaching anything.").
274. See, e.g., Patty Yancey, We Hold on to Our Kids, We Hold on Tight: Tandem Charters in Michigan, in INSIDE CHARTER SCHOOLS, supra note 99, at 66. Charter schools also provide other educational benefits.
275. Freed from bureaucratic controls, they can experiment with reforms such as block scheduling and interdisciplinary teaching, see U.S. DEP'T OF EDUC., EVALUATION OF THE PUBLIC CHARTER SCHOOLS PROGRAM: FINAL REPORT 22 (2004), available at http://www.ed.gov/rschstat/eval/ choice/pcsp-final/finalreport.pdf, and serve as laboratories for innovative philosophies of education.
276. For examples of ideologies underlying charter schools, see Chester E. Finn Jr., Chartering and Innovating, in CHARTER SCHOOLS AGAINST THE ODDS, supra note 8, at 159, 162-68. Charter schools can target their efforts to needy students like those from low-income communities or dropouts; alternatively, they can target gifted students who would not otherwise have the opportunity to realize their talents.
277. See U.S. DEP'T OF EDUC., supra, at 84 app. C-3.
278. While aggregate data on charter school performance remains mixed, id. at 53-54, some charter schools have shown remarkable results.
279. See, e.g., Ellen R. Delisio, Who Are We Proud To Be? Amistad Academy, EDUC WORLD, Sept. 9, 2004, http://www.education- world.com/a-issues/schools/schoolso22.shtml (discussing accomplishments of Amistad Academy and the founding of a charter school network to replicate its model);
280. Mathews, supra note 98 (discussing impressive results achieved by the Knowledge Is Power Program schools, though acknowledging that challenges remain).
281. See Fuller, supra note 99, at 30 ("[C]harters usually invite just certain types of families to participate, whether they be classified by race, religious affiliation, or philosophical commitment to strict discipline or innovative pedagogy.").
282. VITERITTI, supra note 2, at 205.
283. Fuller, supra note 99, at 14.
284. Id. at 15.
285. Robert C Bulman & David L. Kirp, The Shifting Politics of School Choice, in SCHOOL CHOICE AND SOCIAL CONTROVERSY, supra note 11, at 36-40;
286. Minow, supra note 93, at 1075-79.
287. See NAT'L CHARTER SCH. RESEARCH PROJECT, supra note 99, at 12-13.
288. See Brace Fuller, Introduction: Growing Charter Schools, Decentering the State, in INSIDE CHARTER SCHOOLS, supra note 99, at 1, 6-10;
289. see, e.g., Elliott, supra note 42 (recounting how the founder of charter-like Khalil Gibran International Academy conceptualized the school as providing unique opportunities for children of Arab descent).
290. See Saiger, supra note 8, at 969 (arguing that by subsidizing public schools, the state inevitably shapes those schools' point of view, and that it is therefore "no less public" to have "vouchers or charters that subsidize individual parental preferences about schools while impartially aggregating them using a market mechanism").
291. See Kersten, supra note 62.
292. See Hubert Morken, Family Research Council, Witherspoon Lecture (Sept. 10, 1999) (transcript available at http://www.frcorg/get.cfm?i-WT99G1) ("Many religious families prefer public schools . . . .").
293. See VITERITTI, supra note 2, at 206.
294. Id. at 205.
295. Id. at 205-06.
296. See Macedo, supra note 7, at 442-45.
297. See, e.g., Children's Museum Charter School Among Highest in State API Scores, SAN DIEGO METROPOLITAN, May 2005, at 62, available at http://www.sandiegometro.com/2005/may/museum.php.
298. See Will Oremus, Univ. Takes Over EPA Charter School, STAN. DAILY, Apr. 11, 2005, at 1, available at http://ed.stanford.edu/suse/news-bureau/displayRecord.php?tablename= susenews&id=110.
299. University of Wisconsin-Madison, Center on Education and Work, Intermediate School Sponsorship of Charter Academies, http://www.cew.wisc.edu/ charterschools/TEC2practice.asp (last visited Nov. 24, 2008).
300. VITERITTI, supra note 2, at 206.
301. Churches in poor communities play a "unique and complex role . . . beyond the religious mission." Id.
302. The leader of Tarek ibn Ziyad Academy considers its potential to foster the political and cultural incorporation of its predominandy immigrant families as a primary benefit. As he told a reporter, "Tarek can be a steppingstone for some families to learn more about American culture in a safe environment . . . . 'What does it mean to be an American citizen? To us, citizenship means involvement. . . . [and part of the school's mission is to build] a diverse, virtuous, and moral America . . . .'" Oseid, supra note 47 (quoting Asad Zaman).
303. See Lawrence Bobo & Franklin D. Gilliam, Jr., Race, Sociopolitical Participation, and Black Empowerment, 84 AM. POL. SCI. REV. 377, 377-80 (1990).
304. Id. at 380, 381 tbl.1, 383-85 & tbl.3.
305. See STEVE P. JEFFERSON, CHARTER SCHOOLS: A DESCRIPTIVE STUDY OF EMPOWERMENT WITHIN THE OPERATION OF CHARTER SCHOOLS (2004) (describing how charter schools foster empowerment in minority and other communities by giving families a greater stake in their school);
306. see, e.g., Heather Kroger Devich, Education as a Tool for Social Change: Case Study of an Arizona Inner-City Charter School 86-90 (May 20, 2000) (unpublished Ed.D. dissertation, University of San Francisco) (on file with author) (discussing the development of "political consciousness" among poor families at an Arizona religious charter school).
307. See Elliott, supra note 42 (noting that creation of Khalil Gibran has been viewed as part of a wider effort by "Muslim citizens who are seeking an expanded role in American public life").
308. See ROBERT PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 18-19 (2000).
309. See VITERITTI, supra note 2, at 217 (conceptualizing schools as voluntary associations).
310. See PUTNAM, supra note 203, at 22. Admittedly, religious charter schools could reinforce boundaries between religious groups.
311. Cf. id. at 22-23 (noting that alongside its benefits, inward-looking "bonding social capital" can reinforce "exclusive identities and homogenous groups"). But any such harm comes as a byproduct of religious charter schools' potential to empower their members politically.
312. Muslim schools did not always receive funding and had to fight for inclusion against fears that they would promote fundamentalism. See Marie Parker-Jenkins, Equal Access to State Funding: The Case of Muslim Schools in Britain, 5 RACE ETHNICITY & EDUC 273, 276-80 (2002). In Canada, where the state also funds selected religious schools, Muslims have faced similar challenges.
313. See Faisal Bhabha, Don't Fear Religious Schools, Nat'l Post Full Comment Blog, Aug. 24, 2007, http://network.nationalpost.com/np/blogs/ fullcommeni/archive/2007/08/24/faisal-bhabha-don-t-fear-religious-schools.aspx.
314. Tariq Modood, Muslims and the Politics of Difference, 74 POL. Q. 100, 112 (2003).
315. Tariq Modood, Establishment, Multiculturalism and British Citizenship, 65 POL. Q;, 53, 62 (1994).
316. Katrin Bennhold, French Muslims Find Haven in Catholic Schools, N.Y. TIMES, Sept. 30, 2008, at A6.
317. See Luxner, supra note 74.
318. MacFarquhar, supra note 54.
319. Sam Dillon, Online Schooling Grows, Setting Off a Debate, N.Y. TIMES, Feb. 1, 2008, at Ai;
320. see abo LAUREN MORANDO RHIM & JULIE KOWAL, NAT'L ASS'N OF STATE DIRS. OF SPECIAL EDUC, DEMYSTIFYING SPECIAL EDUCATION IN VIRTUAL CHARTER SCHOOLS (2008), http://www.uscharterschools.org/specialedprimers/ download/speciaLreport-rhim.pdf (discussing characteristics of virtual charter schools).
321. See Luis A Huerta, Losing Public Accountability: A Home Schooling Charter, in INSIDE CHARTER SCHOOLS, supra note 99, at 177-180. A recent California court decision appeared to call the legal status of schools like VCS into question, holding that the California Education Code's requirement that minor children enroll in a public school unless they attend a private school, receive tutoring from a state-credentialed teacher, or meet another statutory exception does not permit uncredentialed parents to home school their children.
322. In re Rachel L., No. B192878, 2008 Cal. App. LEXIS 292, at *1-2, *16 n.5 (Ct. App. Feb. 28, 2008). However, under pressure, the court subsequently vacated its decision. It determined that while statutes appeared to prohibit home schooling by uncredentialed parents, it would conclude that home schools qualified as "private full-time day school [s]" because the legislature had consistently "acted as though home schooling is, in fact, permitted in California."
323. Jonathan L. v. Superior Ct., No. B192878, 2008 Cal. App. LEXIS 1219, at *28-29, *40 (Ct. App. Aug. 8, 2008).
324. See Huerta, supra note 213, at 182-83, 190-93.
325. Id. at 181-83, 188.
326. See Heritage Christian Center, Our Vision, http://www. heritagechristiancenter.com/newhere/vision.htm (last visited Nov. 24, 2008).
327. GREEN & MEAD, supra note 15, at 166.
328. Id. at 166-67.
329. California, however, has allowed the creation of Waldorf schools. See Mel Huff, Waldorf Educator Visits Orchard Valley, TIMES ARGUS (Barre-Montpelier, Vt.), Dec. 1, 2007, at Bi, available at http://www.timesargus.com/apps/pbcs.dH/article?AID=/20071201/NEWS02/712010385/ 1003/NEWS02.
330. See Richard Just, Why School Choice Could Demolish National Unity, in PUBLIC SCHOOL CHOICE VS. PRIVATE SCHOOL VOUCHERS 97 (Richard D. Kahlenberg ed., 2003).
331. See, e.g., id.;
332. Popper, supra note 18 (contending that religious charter schools may foster an "unhealthy atomization of American culture").
333. See Hill, supra note 95, at 143-44.
334. See supra notes 158159, 211-215 and accompanying text.
335. See supra Part I.
336. Cf. Stephen D. Sugarman & Emlei M. Kuboyama, Approving Charter Schools: The Gate-Keeper Function, 53 ADMIN. L. REV. 869 (2001) (discussing the charter school approval process).
337. See supra notes 137-141 and accompanying text.
338. See Suzanne E. Eckes, Jonathan A. Plucke & Sarah A. Benton, Charter School Accountability: Legal Considerations Concerning Nonrenewal and Revocation Procedures, 2006 BYU EDUC & L.J. 551;
339. supra notes 55-63.
340. See WEINBERG, supra note 25.
341. See 42 U.S.C. S 2000(e) (2000) (defining coverage). In the voucher context, scholars have debated whether states can constitutionally require observance of nondiscrimination requirements as a condition of participation. Compare Mark Tushnet, Vouchers After Zelman, 2002 SUP. CT. REV. 1, 22-29 (suggesting nondiscrimination requirements might violate groups' right of expressive association),
342. with Ira C. Lupu & Robert W. Tuttle, Zelman's Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 NOTRE DAME L. REV. 917, 977-78 (2003) (contending that applying antidiscrimination laws to voucher schools comports with long-held public policy and is constitutional),
343. and Michael Kavey, Note, Private Voucher Schools and the First Amendment Right To Discriminate, 113 YALE L.J. 743, 744, 764-72 (2003) (same). Given that arguments for the constitutionality of antidiscrimination requirements are even stronger for charter schools due to their quasi-public status, states should feel confident imposing these requirements.
344. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
345. See Oseid, supra note 47;
346. Telephone Interview with Peter Deutsch, supra note Errorl Bookmark not defined..
347. See U.S. DEP'T OF EDUC, supra note 27, at 11-15;
348. see, e.g., MASS. GEN. LAWS ANN. ch. 71, S89(n) (West Supp. 2008); DC Public Charter School Board, Enrollment/Lottery Guidelines, http://www.dcpubliccharter.com/pcschools/ enrollguidelines.html (last visited Nov. 24, 2008).
349. In fact, some urban Catholic schools are majority non-Catholic See Samuel G. Freedman, A Young Teacher Combines His Religion and Desire To Serve in the Classroom, N.Y. TIMES, Mar. 22, 2008, at A14; cf. Bennhold, supra note 209 (estimating that ten percent of Catholic school students in France are Muslim, a figure that rises to eighty percent in some urban Catholic schools).
350. See supra note 101 and accompanying text.
351. Rust v. Sullivan, 500 U.S. 173, 197 (1991) (discussing FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984)).
352. See Rust, 500 U.S. 173; Regan v. Taxation with Representation of Wash., 461 U.S. 540, 548 (!983) ("Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures.").
353. See Rust, 500 U.S. at 194-200 (upholding the constitutionality of a federal family planning program as government speech);
354. see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (discussing Rust).
355. See Rosenberger, 515 U.S. at 834-37 (striking down a public university's restrictions on funding of religiously oriented student newspapers).
356. See id. at 828-30.
357. The considerable freedom that states permit charter schools is a matter of legislative grace, and state law regulates the contours and extent of that freedom. See In re Grant of the Charter Sch. Application of Englewood on the Palisades Charter Sch., 753 A.2d 687, 689-91 (N.J. 2000) (noting that charter schools' freedom from many state and local regulations stems from legislative authorization, with the result that the schools remain accountable to "the charter schools' governmental approving authority, the individuals who organize the schools and the public that funds them").
358. See, e.g., Parker v. Hurley, 514 F.3d 87, 91-92 (ist Cir. 2008) (discussing the relationship between statewide standards and district autonomy);
359. cf. Powe, supra note 161, at 3;
360. Timar, supra note 161, at 231-35.
361. Zelman v. Simmons-Harris, 536 U.S. 639, 651-55 (2002).
362. Districts favor awarding charters to "[wealthier, more popular, and longer established religious communities" since they have "greater resources." Macedo, supra note 7, at 447. To avoid discrimination against less wealthy religious groups, districts should only establish religious charter schools if they can afford to charter schools ran by religious groups across the socioeconomic spectrum. Of course, a school ran by a religious group different than one's own might still offer a more suitable education than a secular public school.
363. See supra notes 206-210 and accompanying text.
364. See Zelman, 536 U.S. at 655-56.
365. See id.
366. See Eckes et al., supra note 226;
367. Sugarman & Kuboyama, supra note 224, at 917-28.
368. See Employment Div. v. Smith, 494 U.S. 872, 890 (1990);
369. Isgur, supra note 34.
370. See Parker v. Hurley, 514 F.3d 87, 103-07 (ist Cir. 2008) (declining to require a school district to accommodate parents who objected to books promoting tolerance of gay persons and couples); Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1063-70 (6th Cir. 1987) (declining to require a school district to exempt children from reading books that parents claimed taught values contrary to their religious beliefs).
371. Vischer, supra note 101, at 83, 86;
372. see also Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987) (noting the Court's vigilance over Establishment Clause compliance in "elementary and secondary schools" in part because students' "attendance is involuntary" and the State therefore "exerts great authority and coercive power").
373. Vischer, supra note 101, at 83.