Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 31, 2015

Sugarman on religious charter schools

Steve Sugarman has posted a new article, "Is It Unconstitutional To Prohibit Faith Based Schools from Becoming Charter Schools?", on SSRN:

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, 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. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. 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.

It does seem to me that what most people presume to be the rule that, in order to be a "charter school," a school must not be a religious (or even "pervasively sectarian") school, is anomalous.  After all, charter schools aren't really government schools; they are just a new kind of delivery mechanism of a particular good -- i.e., education -- that the public authority wants to fund and bring about.  If a Catholic school can deliver that good (and, of course, Catholic schools can and do), then why not allow Catholic schools to employ that mechanism?


Garnett, Rick | Permalink