Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, August 16, 2017

Sugarman on the Constitution and Faith-Based Charter Schools

Here (Download Sugarman on Faith-Based Charter Schools), and forthcoming in the Journal of Law and Religion, is Prof. Stephen Sugarman -- a longtime education-law and education-reform expert -- on whether the Constitution permits the exclusion of faith-based schools from charter-school programs.  The abstract:

This article argues that it is unconstitutional for state charter school programs to preclude
faith-based schools from obtaining charters. The rst section describes the “school choice”
movement of the past fty years, situating charter schools in that movement. The current
state of play of school choice is documented and the roles of charter schools, private schools
(primarily faith-based schools), and public school choice options are elaborated. The second
section argues that based on the current state of the law it should not be unconstitutional,
under the First Amendment’s Establishment Clause, for states to elect to make faith-based
schools eligible for charters, and, therefore, the current practice of formal discrimination on
the basis of religion against families and school founders who want faith-based charter
schools should be deemed unconstitutional by the US Supreme Court. Put differently, this
is not the sort of issue in which the “play in the joints” between the Free Exercise and
Establishment Clauses should apply so as to give states the option of restricting charter
schools to secular schools.


Garnett, Rick | Permalink