A Solution To Charter School Religious First Amendment Problems

From Forbes.com

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

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

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

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

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

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

Read the full post here.