Bruce Baker: Charter Schooling in the Post-Espinoza & Fulton Era
Rutgers professor Bruce Baker is an expert in issues of school finance. In this post, he looks at what could happen to charter schools as the wall between church and state steadily crumbles in America.
The murkiness of the public-private distinction under state charter school laws creates a substantial vulnerability of the charter sector to become something it was originally argued to avoid – the public financing of religious education and indoctrination which dominated existing private school voucher programs at the time. Even prior to the Espinoza and Fulton decisions, religious operators had become significantly involved in the charter sector, in some cases adding to the opacity and of related party transactions over land and building deals between religious and secular private organizations.
These two issues – a) the intrusion of religion and all that comes with it (discriminatory practices in the name of free exercise, religious curriculum including teaching of creationism) and b) financial liability and transparency concerns – can be addressed by a unified overhaul of state charter school statutes and regulations.
First, Justice Breyer’s dissent in Espinoza acknowledges the variation in governing status of charter schools across states. We note that there are two layers to this which include entities that authorize the establishment of charter schools and citizen boards that govern those schools. Either or both may involve non-government entities and private citizens and governing bodies. The latter (private governance of schools themselves) being more common than the former (non-gov’t agencies authorizing charters). We argue first that both of these layers must be governed by state actors, involving elected or appointed boards, who, in this capacity are public officials (not private citizens or institutions).
Maryland provides one example which is sufficiently tight in this regard. Charter schools are authorized by, governed by and financed through their host county school districts. Further, while private management companies may be hired to “operate” the schools, employees of the schools are under county district contracts. That is, teachers and other certified staff in Maryland charter schools are public employees and themselves “state actors,” even when they work under the direction of a private management company.
This model provides for increased public transparency, and at the same time, minimizes potential for religious intrusion on the charter sector. A truly public governing board (like the district board of education, appointed or elected) would not be able to exclude from management contracts, firms with religious ties or origins on that basis alone. But, given that instruction is provided by public employees and the school governed by public officials, the school would be bound by constitutional requirements regarding discrimination and the provision of religious curriculum (here, the establishment clause prohibits advancement or promotion of religion).