Church, choice, and charters: A new wrinkle for public education?

Harvard Law Review

Volumn 122, Issue 6, 2009, Pages 1750-1771

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EID: 65949097269     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (194)

1. See Abby Goodnough, Hebrew Charter School Spurs Florida Church-State Dispute, N.Y. TIMES, Aug. 24, 2007, at A1.
2. Id.
3. Ben Gamla Charter School, School Administration & Philosophy (Aug. 10, 2007), http://www.bengamlacharter.org/admin.htm.
4. Hannah Sampson, Will School Cross Religion Line?, MIAMI HERALD, July 13, 2007, at 1A (Rabbi Siegel asserted: "This is not Jewish day school ⋯. If you're looking for a religious education, this is not the place for you").
5. See, e.g., Noah Feldman, Universal Faith, N.Y. TIMES, Aug. 26, 2007, § 6 (Magazine), at 13 ("Ben Gamla seem[s] poised to teach religion as a set of beliefs to be embraced rather than as a set of ideas susceptible to secular, critical examination.");
6. Hannah Sampson, Charter School's Hebrew Lessons Approved, MIAMI HERALD, Sept. 12, 2007, at 6B ("[Ben Gamla's critics] have argued that it crosses the line between church and state because it is impossible to separate religion from the Hebrew language.").
7. Sampson, supra note 5.
8. See id.
9. See, e.g., Nathaniel Popper, Op-Ed., Chartering a New Course, WALL ST. J., Aug. 31, 2007, at W11 (describing a surge in culturally based charter schools);
10. infra section I.B, pp. 1755-57.
11. See generally NOAH FELDMAN, DIVIDED BY GOD 57-99 (2005).
12. See PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE 219-29 (2002);
13. DIANE RAVITCH, THE GREAT SCHOOL WARS 33-76 (1974).
14. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (holding official prayers at public school unconstitutional).
15. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (permitting educational voucher use for parochial schools).
16. Bruce Fuller, Introduction to INSIDE CHARTER SCHOOLS: THE PARADOX OF RADICAL DECENTRALIZATION 1, 6-7 (Bruce Fuller ed., 2000) [hereinafter INSIDE CHARTER SCHOOLS];
17. see also JONATHAN SCHORR, HARD LESSONS: THE PROMISE OF AN INNER CITY CHARTER SCHOOL xvii-xxiii (2002) (tracing the origins of the charter school movement).
18. See, e.g., THOMAS L. GOOD & JENNIFER S. BRADEN, THE GREAT SCHOOL DEBATE: CHOICE, VOUCHERS, AND CHARTERS 177 (2000) ("[A]t present[,]⋯ the charter school movement remains a disorganized and wasteful experience ⋯.");
19. Bruce Fuller, The Public Square, Big or Small? Charter Schools in Political Context, in INSIDE CHARTER SCHOOLS, supra note 13, at 12, 65;
20. Amy Stuart Wells, Why Public Policy Fails To Live Up to the Potential of Charter School Reform, in WHERE CHARTER SCHOOL POLICY FAILS: THE PROBLEMS OF ACCOUNTABILITY AND EQUITY 1, 3 (Amy Stuart Wells ed., 2002) ("[I]t is the ambiguity, the lack of support, and the complete absence of equity provisions within the charter school laws in most states that have led to the beginning of the end of yet another school reform movement.").
21. By 2001, just ten years after Minnesota passed the first charter school legislation, see BRYAN C. HASSEL, THE CHARTER SCHOOL CHALLENGE 8 (1999), more than 2400 charter schools had been founded in thirty-four states, SCHORR, supra note 13, at xvii. Today, forty states and the District of Columbia are home to more than 4000 charter schools serving over one million students. NAT'L ALLIANCE FOR PUB. CHARTER SCH., NUMBER OF CHARTER SCHOOLS AND STUDENTS IN THE 2006-07 SCHOOL YEAR 1-2 (2007).
22. See, e.g., Lawrence D. Weinberg & Bruce S. Cooper, Commentary, What About Religious Charter Schools?, EDUC. WK., June 20, 2007, at 39, 39-40 ("Is the stage set for a range of government-financed religious/cultural charter schools?").
23. Similar arrangements have already been targeted for litigation. See, e.g., Stark v. Indep. Sch. Dist., No. 640, 123 F.3d 1068 (8th Cir. 1997) (holding that a public school's adoption of rules in compliance with the belief system of the religious denomination that owned its facility did not violate the Establishment Clause);
24. see also infra note 48 and accompanying text, (noting pending suit against Arabic charter school).
25. For a far-reaching, alternative effort to articulate and assess the varied legal issues facing religiously themed charter schools, see LAWRENCE D. WEINBERG, RELIGIOUS CHARTER SCHOOLS: LEGALITIES & PRACTICALITIES (2007). Although Weinberg concludes that expressly denominational religious charters are unconstitutional, he offers a detailed framework for constitutionally permissible accommodation of religion in charter schools.
26. Id. at 137-49;
27. see also Weinberg & Cooper, supra note 16 (observing that "religiously sensitive charter school[s]" - in line with Weinberg's framework - may be founded as faith communities recognize "an opportunity to open schools with a clear cultural and ethical mission, a general pedagogy, and attractiveness to members of their religious group").
28. THE WORDS OF JUSTICE BRANDEIS 46 (Solomon Goldman ed., 1953) (quoting Justice Louis Brandeis).
29. Among the many statutory issues and state constitutional issues beyond the scope of this Note are the implications of the so-called "Blaine Amendments," which have been adopted in more than thirty states and purport to restrict state governments' capacities to fund sectarian education. See generally Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 HARV. J.L. & PUB. POL'Y 551, 576-602 (2003). Narrow construction of these amendments has allowed many school choice programs - including voucher programs that provide money to parochial schools - to survive legal challenge.
30. See, e.g., Simmons-Harris v. Goff, 711 N.E.2d 203, 212 (Ohio 1999);
31. Jill Goldenziel, Blaine's Name in Vain?: State Constitutions, School Choice, and Charitable Choice, 83 DENV. U. L. REV. 57, 73-74 (2005). Moreover, the list of states that do not have Blaine Amendments includes the charter-heavy state of Louisiana.
32. See TODD ZIEBARTH, NAT'L ALLIANCE FOR PUB. CHARTER SCH., TOP 10 CHARTER COMMUNITIES BY MARKET SHARE (2008);
33. James A. Peyser, Op-Ed., The Schools that Katrina Built, BOSTON GLOBE, Oct. 14, 2007, at E1 (noting the prevalence of charter schools in post-Katrina New Orleans).
34. For instance, Mississippi, whose charter legislation has been ranked as the least permissive in the nation, allows a maximum of fifteen charters, which can only be formed by converting existing public schools. See CTR. FOR EDUC. REFORM, EDUCATION IN AMERICA: STATE-BY-STATE SCORECARD (2007);
35. Ctr. for Educ. Reform, Charter Law, http://www.edreform.com/index.cfm? fuseAction=claw (last visited Mar. 7, 2009). In contrast, Minnesota allows an unlimited number of charters, which can be converted public or private schools or new start-ups.
36. See CTR. FOR EDUC. REFORM, supra; Ctr. for Educ. Reform, supra.
37. See HASSEL, supra note 15, at 5.
38. See id.
39. See Fuller, supra note 13, at 6-7.
40. HASSEL, supra note 15, at 5.
41. See, e.g., CHARTER SCH. PROGRAM, U.S. DEP'T OF EDUC, TITLE V, PART B: NON-REGULATORY GUIDANCE 15 (2004) [hereinafter DOE GUIDANCE], available at http://www.ed.gov/policy/elsec/guid/ cspguidanceo3.doc ("As public schools, charter schools must be non-religious in their programs, admissions policies, governance, employment practices and all other operations, and the charter school's curriculum must be completely secular.").
42. See, e.g., Scott S. Greenberger, Charter Schools' Influence Surveyed, BOSTON GLOBE, July 8, 2001, at B9 (noting that charter schools are free from "bureaucratic shackles that may be holding back teachers and students" in traditional public schools);
43. James Traub, A School of Your Own, N.Y. TIMES, Apr. 4, 1999, § 4A, at 30 (quoting veteran Los Angeles schoolteacher - and charter school founder - Yvonne Chan's assertion that traditional public schools "handcuff your hands with so many policies, so many rules and regulations").
44. HASSEL, supra note 15, at 6.
45. Id. at 5.
46. See, e.g., id.;
47. Jay Mathews, School of Hard Choices: In the KIPP Academy Program, It's Motivation That's Fundamental, WASH. POST, Aug. 24, 2004, at C1 (detailing novel features of the resoundingly successful KIPP charter schools - including longer school days and student incentive programs - which have produced substantial learning gains as evidenced by dramatic improvements in standardized test scores).
48. But see SCHORR, supra note 13, at 305 ("Experience ⋯ teaches that closures over academic quality (rather than financial or legal problems) are quite rare."). As a practical matter, the apparent spottiness of charter oversight in some states may have negative implications for religious charters' capacity to comport with constitutional requirements.
49. See, e.g., Julie F. Mead, Devilish Details: Exploring Features of Charter School Statutes that Blur the Public/Private Distinction, 40 HARV. J. ON LEGIS. 349, 350 (2003) ("[C]ompetition, choice proponents argue, will encourage traditional public schools to be more responsive to parents in order to retain students and, therefore, will provide an impetus to school improvement.").
50. See, e.g., SCHORR, supra note 13, at 4 (describing the vastly overcrowded Jefferson Year-Round Elementary School, from which many new charter pupils were drawn). For a poignant discussion of one Oakland community's struggle to launch several charter schools,
51. see id.
52. See, e.g., GOOD & BRADEN, supra note 14, at 177 (noting charters' "uneven, and in some cases dismal, performance records");
53. see also Mathews, supra note 30 (citing a federal study indicating that "charter schools are no better and in some cases fare] worse than regular public schools").
54. See, e.g., SCHORR, supra note 13, at 308. But see Peyser, supra note 20 (arguing that the emergent decentralized school system in New Orleans, more than half of which is comprised of charter schools, may reflect the future of American education).
55. See, e.g., Fuller, supra note 14, at 65 ("If the thousand points of light represented by charter schools illuminate only the affluent suburbs and fail to shine a light on more opportune pathways for poor families, then charter schools will simply reproduce our society's deep ruts of inequality."). But see James Forman, Jr., Do Charter Schools Threaten Public Education? Emerging Evidence from Fifteen Years of a Quasi-Market for Schooling, 2007 U. ILL. L. REV. 839, 879 ("[T]he fear that charters would threaten traditional public schools by cream-skimming the privileged has not borne out.").
56. See, e.g., Martha Minow, Lecture, Reforming School Reform, 68 FORDHAM L. REV. 257, 269 (1999) ("Rather than generating a desirable pluralism of methods and values, vouchers and charters could instead produce self-segregation that exacerbates intergroup misunderstandings along the familiar fault-lines of race, class, gender, religion, disability, and national origin.").
57. See, e.g., DOE GUIDANCE, supra note 26, at 15.
58. The National Charter School Research Project, housed at the University of Washington, collects and disseminates a broader range of data on charter schools nationwide. See, e.g., NAT'L CHARTER SCH. RESEARCH PROJECT, HOPES, FEARS, AND REALITY: A BALANCED LOOK AT AMERICAN CHARTER SCHOOLS IN 2008 (Robin J. Lake ed., 2008).
59. See Rosalind Rossi, School Bd. Approves Plans for Final 2 Charter Schools, CHI. SUN-TIMES, Apr. 30, 1998, at 20.
60. Ed Finkel, African Ed, CHI. REP., May 2007, available at http://www.chicagoreporter.com/index.php/c/Cover-Stories/d/ African-Ed.
61. Id.
62. See id. ("Shabazz ranked first in composite test scores among io public schools in the Greater Grand Crossing neighborhood, where Shabazz is the only charter.");
63. Rosalind Rossi, Charters' Scores Don't Tell Whole Story, Activist Says, CHI. SUN-TIMES, Nov. 15, 2001, at N11 (counting BSICS as one of the schools posting "the biggest gains compared to the city or state among Illinois charter schools").
64. See, e.g., Maudlyne Ihejirika, Shabazz School a Hit with Glover, CHI. SUN-TIMES, NOV. 3, 2005, at 25;
65. Maudlyne Ihejirika, Students, Alicia Keys Delighted with Each Other, CHI. SUN-TIMES, Apr. 1, 2005, at 20.
66. See Popper, supra note 8.
67. Tarek ibn Ziyad Academy, Our School, http://www.tizacademy.com/Our- School.html (last visited Mar. 7, 2009).
68. Tammy J. Oseid, A Place To Belong, ST. PAUL PIONEER PRESS, Nov. 7, 2004, at 1B. The school's distinctive features include a calendar arranged around the cycle of Muslim holidays and breaks in instruction that coincide with noontime prayer.
69. Id.
70. See, e.g., Katherine Kersten, Op-Ed., Are Taxpayers Footing Bill for Islamic School in Minnesota?, STAR TRIB. (Minneapolis, Minn.), Mar. 9, 2008, at 1B. In January of 2009, the American Civil Liberties Union announced plans to file suit against the school, as well as the Minnesota Department of Education, for allegedly sponsoring "what is, in essence, a private religious school." Randy Furst & Sarah Lemagie, ACLU To Sue Twin Cities Charter School that Caters to Muslims, STAR TRIB. (Minneapolis, Minn.), Jan. 22, 2009, at 3B (quoting the executive director of the Minnesota ACLU).
71. Kersten, supra note 48.
72. "Valley Charter School" is the pseudonym used by Luis Huerta to describe an actual charter school in the essay that serves as the basis for this example. See Luis A. Huerta, Losing Public Accountability: A Home Schooling Charier, in INSIDE CHARTER SCHOOLS, supra note 13, at 177, 177
73. See id.
74. For a wider discussion of government oversight of home schooling, see Judith G. McMullen, Behind Closed Doors: Should States Regulate Homeschooling?, 54 S.C. L. REV. 75 (2002).
75. Huerta, supra note 50, at 187, 189.
76. Id. at 180. "Education coordinators" function as VCS's teachers.
77. Id. at 182-83.
78. Id. at 187-88.
79. See id.
80. Id. at 178.
81. For instance, many avowedly secular schools rely on church communities for facilities and enrollment. See, e.g., BRIAN GILL ET AL., RHETORIC VERSUS REALITY: WHAT WE KNOW AND WHAT WE NEED TO KNOW ABOUT VOUCHERS AND CHARTER SCHOOLS 49 n. 14 (2007);
82. SCHORR, supra note 13, at 104 ("To [one parent] it was a church school, no matter the public label. And indeed, the wide community of the church led the school to recruit many families in tough circumstances.").
83. See infra pp. 1759-62.
84. For a concise history of American public education's legal and ideological interplay with religion, see KENT GREENAWALT, DOES GOD BELONG IN PUBLIC SCHOOLS? 13-22 (2005).
85. See Zelman v. Simmons-Harris, 536 U.S. 639, 688-95 (2002) (Souter, J., dissenting) (dividing the Court's modern Establishment Clause jurisprudence into four distinct stages). For more on evolving understandings of church-state separation, see Steven D. Smith, Separation As a Tradition, 18 J.L. & POL. 215 (2002).
86. 330 U.S. 1 (1947).
87. Id. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)).
88. For a discussion of heated public responses to Everson, see ARLIN M. ADAMS & CHARLES J. EMMERICH, A NATION DEDICATED TO RELIGIOUS LIBERTY: THE CONSTITUTIONAL HERITAGE OF THE RELIGION CLAUSES 35-36 (1990).
89. Everson, 330 U.S. at 18. This decision is only one illustration of the occasional permeability of the "impregnable" church-state barrier, which can be understood as a function of the reality that "[w]alling out religion from public activities, political debate, and even participation in government programs could reflect the kind of hostility to religion that the First Amendment guards against." Martha Minow, Lecture, Partners, Not Rivals?: Redrawing the Lines Between Public and Private, Non-Profit and Profit, and Secular and Religious, 80 B.U. L. REV. 1061, 1086 (2000).
90. See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985) (holding that allowance for silent prayer in public schools violated the Establishment Clause);
91. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (holding religious exercises at public school unconstitutional). But see Bd. of Educ. v. Allen, 392 U.S. 236 (1968) (permitting the loan of district-owned textbooks to students enrolled in parochial schools). The Court evinced similar commitment to preserving a firm separation between church and state in non-education-related cases.
92. See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 675 (1970) ("The hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches.").
93. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
94. Id. at 613 (quoting Walz, 397 U.S. at 674) (internal quotation marks omitted).
95. Most of the Justices have indicated dissatisfaction with the Lemon test "as a comprehensive test for all establishment cases." GREENAWALT, supra note 59, at 152. However, the test has never been expressly discarded, and "a majority of [J]ustices continues to suppose that either a purpose to promote religion or a direct effect of advancing religion may render a program unconstitutional."
96. Id. at 153. Justice Scalia in his concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), penned a particularly colorful indictment of the sporadically invoked test: "The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will."
97. Id. at 399 (Scalia, J., concurring in the judgment).
98. 463 U.S. 388 (1983).
99. 536 U.S. 639 (2002).
100. Mueller, 463 U.S. at 390.
101. Id. at 392.
102. Id. at 398-99.
103. Id. at 399.
104. Id. at 401 ("We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.").
105. Id. at 404.
106. 474 U.S. 481 (1986).
107. Id. at 483.
108. See id. at 490 (Powell, J., concurring) (arguing that, despite the majority's failure to invoke it, "Mueller strongly supports the result we reach today").
109. Id. at 487 (majority opinion).
110. 509 U.S. 1 (1993).
111. Id. at 12-14 ("James' parents have chosen of their own free will to place him in a pervasively sectarian environment. The sign-language interpreter they have requested will neither add to nor subtract from that environment, and hence the provision of such assistance is not barred by the Establishment Clause.").
112. 521 U.S. 203 (1997) (overruling Aguilar v. Felton, 473 U.S. 402 (1985);
113. and Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)).
114. Id. at 240.
115. 530 U.S. 793 (2000).
116. Id. at 836;
117. see also id. at 810 ("[I]f numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment.").
118. See, e.g., Zobrest, 509 U.S. at 23-24 (Blackmun, J., dissenting) (concluding that the Court's ruling strayed "from the course set by nearly five decades of Establishment Clause jurisprudence,"
119. id. at 23, by inviting "exactly [the] sort of conflict" between individual liberty and religious autonomy that the clause was meant to avert,
120. id. at 24).
121. 536 U.S. 639 (2002).
122. See, e.g., Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 124 n. 417 (1997) ("In the wake of Agostini, the looming question of foremost practical importance involves the constitutionality of 'voucher' programs, through which school districts might help to fund the choices of parents and students who prefer religious to public, secular education.").
123. Compare, e.g., Editorial, A Matter of Church and State, N.Y. TIMES, Feb. 20, 2002, at A20 ("The Supreme Court cannot permit cities like Cleveland to violate the Establishment Clause in order to improve education any more than it could allow them to deprive citizens of their free-speech rights, if that were seen as a boon to public education."), with Rod Paige, Op-Ed., A Win for America's Children, WASH. POST, June 28, 2002, at A29 ("In Zelman, the court recognized ⋯ the importance of parents' being able to do something when their children's schools don't work. And the court correctly reasoned that sectarian institutions providing a nonsectarian education can be among the options made available to parents").
124. Zelman, 536 U.S. at 644-47.
125. Id. at 645, 647. The program also authorized enrollment in community charter schools, which, the Court noted, must "have no religious affiliation and are required to accept students by lottery."
126. Id. at 647.
127. Chief Justice Rehnquist wrote the majority opinion, which Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justices O'Connor and Thomas also filed separate concurring opinions, and Justices Stevens, Souter, and Breyer each authored dissents.
128. Zelman, 536 U.S. at 652.
129. Id. at 655.
130. See, e.g., id. at 686-87 (Souter, J., dissenting).
131. Id. at 717 (Breyer, J., dissenting).
132. Id. at 663 (majority opinion).
133. For an intriguing analysis of the Zelman dissents and their implications for the long-term constitutional health of school choice, see Charles Fried, The Supreme Court, 2001 Term - Comment: Five to Four: Reflections on the School Voucher Case, 116 HARV. L. REV. 163, 183-98 (2002).
134. See, e.g., Linda Greenhouse, Supreme Court, 5-4, Upholds Voucher System that Pays Religious Schools' Tuition, N.Y. TIMES, June 28, 2002, at Al (quoting voucher advocate's claim that " [Zelman] allows the school choice movement to shift from defense to offense");
135. Paige, supra note 89.
136. For an early, comprehensive evaluation of vouchers' status in Zelman's aftermath, see Mark Tushnet, Vouchers After Zelman, 2002 SUP. CT. REV. 1.
137. See Zelman, 536 U.S. at 726 (Breyer, J., dissenting) (citing an article from a California newspaper "describing increased government supervision of charter schools after complaints that students were 'studying Islam in class and praying with their teachers,' and Muslim educators complaining of'post-Sept. 11 anti-Muslim sentiment'").
138. For an extended analysis of the theoretical roots and empirical results of both modes of education reform, see GILL ET AL., supra note 57. The authors include the prohibition on religious charter schools in their classification of differences, but observe that "some charter school operators may bring religion in through the back door."
139. Id. at 49 n. 14.
140. See id. at 10.
141. Id. at 23.
142. See id. at 9.
143. See id. at 13-14;
144. HASSEL, supra note 15, at 6.
145. See, e.g., MICHAEL A. REBELL & JESSICA R. WOLFF, MOVING EVERY CHILD AHEAD: FROM NCLB HYPE TO MEANINGFUL EDUCATIONAL OPPORTUNITY 58-60 (2008) (detailing the stringent state standards imposed under No Child Left Behind).
146. See, e.g., Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (1925). It also merits noting that several states have begun amending voucher programs to require standardized testing. GILL ET AL., supra note 57, at 10.
147. Zelman v. Simmons-Harris, 536 U.S. 639, 645 (2002) (quoting OHIO REV. CODE ANN. § 3313-976(A)(6) (West 2005));
148. see also GILL ET AL., supra note 57, at 23-24.
149. Zelman, 536 U.S. at 646.
150. See, e.g., SCHORR, supra note 13, at 224-25;
151. cf. GILL ET AL., supra note 57, at 50 (observing that "charters are usually funded more generously" than voucher schools).
152. The Zelman Court noted this financial hurdle. Zelman, 536 U.S. at 654.
153. Cf. United States v. Playboy, 529 U.S. 803, 834 n. 3 (2000) (Scalia, J., dissenting) (explaining the difference between an as-applied challenge, "in which the issue is whether a particular course of conduct" is unconstitutional, and a facial challenge, "in which the issue is whether the terms of [the] statute are unconstitutional").
154. See, e.g., Richard H. Fallon, Jr., Commentary, As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1327-28 (2000) ("[W]hen holding that a statute cannot be enforced against a particular litigant, a court will typically apply a general norm or test and, in doing so, may engage in reasoning that marks the statute as unenforceable in its totality").
155. Although the following discussion integrates likely constitutional objections to such schools, consideration of these arguments will be, of necessity, limited in its scope. For a classic articulation of the strict-separationist perspective, see LEO PFEFFER, CHURCH, STATE, AND FREEDOM 727-28 (1967).
156. Zelman, 536 U.S. at 652.
157. But see Editorial, Preacher Paige, WASH. POST, Apr. 10, 2003, at A28 (asserting that remarks by Secretary of Education Rod Paige "seem[] to confirm the worst fears of voucher opponents - that 'school choice' is a cover for Christian school advocates who have given up on public education").
158. See Zelman, 536 U.S. at 645.
159. Cf. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972) (finding ministerial exception to equal opportunity employment provisions);
160. Martha Minow, Public and Private Partnerships: Accounting for the New Religion, 116 HARV. L. REV. 1229, 1261 (2003) (asserting the need to hold publicly subsidized providers of social services accountable to public values, and citing the fact that under current law "a school voucher plan ⋯ must not involve any school that excludes students on the basis of race, religion, national origin, or ethnicity" as an example of this approach in action). But see David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 HARV. L. REV. 1353, 1385-89 (2003) (challenging the feasibility of holding religious entities accountable without jeopardizing their "special place in our legal schema [and] threatening many of the protections [religion] currently receives").
161. Cf. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007) ("The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.").
162. See supra pp. 1755-56.
163. A variety of factors may account for the apparent acceptance of such schools, including the role of community and parental choice in their development and enrollment. The "opt-in" nature of cultural charters provides an evident point of contrast with the sort of district-made racial classifications that have failed to pass constitutional muster. Cf. Parents Involved, 127 S. Ct. 2738;
164. Gratz v. Bollinger, 539 U.S. 244 (2003). Should culture-oriented charters someday be targeted for constitutional challenge, this distinction may prove dispositive. For more on the apparent constitutional resilience of such racially themed charters, see Robert J. Martin, Charting the Court Challenges to Charter Schools, 109 PENN ST. L. REV. 43 (2004), which concludes that "charter school programs should probably be able to survive most Equal Protection challenges,"
165. id. at 56.
166. Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 CAL. L. REV. 673, 730-31 (2002). Feldman sets out a detailed critique of this approach and its "perverse" implications.
167. See id. at 678, 718-30. Although Feldman's assessment pre-dated Zel-man, that ruling's emphasis on the equal availability of voucher funding to both religious and secular programming indicates that it, too, is wholly consonant with the line of cases he discussed.
168. See Zelman, 536 U.S. at 653-54 (quoting Agostini v. Felton, 521 U.S. 203, 231 (1997)).
169. For further discussion of egalitarian principles as the foundation of constitutional religious freedom, see MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY (2008).
170. Feldman, supra note 122, at 724. An extreme (and problematic) version of this perspective might lead to the conclusion that the failure to fund religious alternatives to secular public education represents an unconstitutional violation of neutrality. Cf. Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 HARV. L. REV. 989, 1012-14 (1991).
171. Feldman, supra note 122, at 729.
172. Id. at 724 (quoting Mitchell v. Helms, 530 U.S. 793, 827 (2000)). Significantly, the Mitchell ruling dealt with an as-applied challenge to a government funding program. Mitchell, 530 U.S. at 801.
173. See Recent Case, 120 HARV. L. REV. 1097, 1101 (2007) ("A voucher program has yet to be confronted in an as-applied challenge ⋯.");
174. cf. id. at 1101-04 (asserting the merits of as-applied challenges as a superior means of assessing vouchers' impact on the adequacy of state-provided education).
175. See Forman, Jr., supra note 36, at 851-66.
176. But see SCHORR, supra note 13, at 162-63 (citing charter entrepreneur's sense that black ministers are uniquely positioned to advance the charter movement in their communities);
177. cf. JOHN L. JACKSON, JR., RACIAL PARANOIA: THE UNINTENDED CONSEQUENCES OF POLITICAL CORRECTNESS 61 (3008) ("Black churches have become central to any discussion of political activism in the black community.").
178. The lax oversight of some charter agencies may render effective administration of nondis-crimination policies difficult. Cf. SCHORR, supra note 13, at 304-05. Yet, this serious concern presents itself as a largely practical question - rather than a constitutional obstacle - one appropriately resolved on a case-by-case basis. Such case-by-case evaluations are common in other educational contexts. See, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003) (finding University of Michigan's use of racial preference in undergraduate admissions constitutionally invalid);
179. Wess-mann v. Gittens, 160 F.3d 790 (1st Cir. 1998) (striking down racially conscious admissions policy employed by Boston magnet school).
180. Zelman v. Simmons-Harris, 536 U.S. 639, 669 (2002) (O'Connor, J., concurring).
181. Mitchell v. Helms, 530 U.S. 793, 817 (2000) (plurality opinion).
182. Id. at 818.
183. See, e.g., Martha Minow, Op-Ed, Vouching for Equality, WASH. POST, Feb. 24, 2002, at B5 (observing that for poor, minority families "the chief route out of local public schools in urban areas is through parochial - usually Catholic - schools that are relatively affordable").
184. Cf. Zelman, 536 U.S. at 726 (Breyer, J., dissenting) ("School voucher programs differ, however, in both kind and degree from aid programs upheld in the past.").
185. See United States v. Virginia, 518 U.S. 515, 534 n. 7 (1996) (affirming states' "prerogative evenhandedly to support diverse educational opportunities," including single-sex education);
186. Elizabeth Weil, Teaching to the Testosterone, N.Y. TIMES, Mar. 2, 2008, § 6 (Magazine), at 38 (tracing developments in single-sex public education).
187. See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 152 (1994) (Kennedy, J., concurring in the judgment) (noting the application of intermediate scrutiny to gender-based classifications). Of course, since its adoption of this standard, the Court has consistently "pressed it closer to strict scrutiny." Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 75 (1996).
188. James Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics, 54 UCLA L. REV. 547, 588 (2007).
189. See, e.g., Michelle R. Davis, Religious Groups Jump at Chance To Offer NCLB Tutoring, EDUC. WK., June 22, 2005, available at http://www.edweek.org/ew/articles/2005/06/22/41faith.h24. html.
190. See, e.g., JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 336 (2007) (asserting that the confirmation of both Chief Justice Roberts and Justice Alito advanced the agenda of those who would "[w]elcome religion into the public sphere");
191. Steven G. Gey, Life After the Establishment Clause, 110 W. VA. L. REV. 1, 38 (2007) ("[W]ith the elevation of Chief Justice Roberts and Justice Alito, [church-state] integrationists now have an effective majority on the Court and can convert the older integrationist dissents and pluralities into majority opinions.");
192. Julie F. Mead et al., Re-examining the Constitutionality of Prayer in School in Light of the Resignation of Justice O'Connor, 36 J.L. & EDUC. 381, 398 (2007) (citing Justice Alito's lower court opinions in concluding that he "is likely to join the conservative faction of the Court and not assume Justice O'Connor's ideological centrist position" with regard to Establishment Clause jurisprudence). However, the precise dimensions of the Roberts Court's approach to the Establishment Clause remain uncertain, as the Justices have yet to take any cases that require substantive interpretation of the clause. Cf. Hein v. Freedom From Religion Found., 127 S. Ct. 2553 (2007) (concluding that taxpayers did not have standing to challenge the use of executive branch funds on faith-based initiatives).
193. Everson v. Bd. of Educ, 330 U.S. 1, 18 (1947).
194. See, e.g., Jay D. Wexler, Preparing for the Clothed Public