Reverend Michael Faulkner wanted to start a charter school through his church in Harlem. But there was a problem: New York law bars religious denominations from running charters, even if, as Faulkner promised, the school would teach a secular curriculum.
So Faulkner — a one-time NFL player who ran for Congress in 2010 — and his church sued.
“The New York Charter Schools Act is nothing more than an attempt by the State to erect a barrier for those who express their religious beliefs from access to public resources that are generally available to all others,” read the 2007 complaint.
The suit was voluntarily dismissed in 2009, and Faulkner, now running for city comptroller, described it as “dormant.” But a recent Supreme Court decision might mean that suits like that one have a better chance of prevailing.
Trinity Lutheran Church v. Comer invalidated a Missouri rule banning a religious school from participating in a public program, and experts immediately noted it could be used to eliminate legal barriers to private school voucher programs. The implications for charter schools drew less attention.
But two legal scholars tell Chalkbeat that the ruling might also pave the way for more charter schools operated by religious groups, including churches.
“Trinity Lutheran opens the door because it states simply that if a religious entity is otherwise qualified to take part in a public benefit program, then it cannot be prohibited solely on the basis of its religious affiliation,” said University of Connecticut professor Preston Green.
Aaron Saiger, a law professor at Fordham University, agreed.
“I have no doubt that this case makes the door more open than it was a month ago,” said Saiger, who wrote a 2013 law review article on religious charters.
If it became easier for religious institutions to run charter schools, it would mark a significant change in several states. According to Green, who raised the idea of charters run by churches in a 2001 law review article, 10 states and Washington D.C. explicitly bar charters from being run by or affiliated with a religious entity.
Green and Saiger say those prohibitions might be threatened by the Supreme Court’s latest ruling. The decision could also affect rules on whether religious entities can authorize charter schools; in Indiana, a lawsuit was recently filed to stop a Christian college and seminary from overseeing charters.
If states or the court were to apply the Trinity Lutheran logic to charter schools, it would not necessarily mean that the schools could teach religion or offer religious services, only that they could be operated by a religious institution. All states with charter laws mandate that they maintain secular rules and a secular curriculum.
The Trinity Lutheran case focused on whether Missouri could bar a church-run preschool from participating in a program for resurfacing playgrounds. Missouri denied the school’s application, consistent with the state’s Blaine Amendment, which prohibits public money from going to religious institutions — a rule most states, including New York, have adopted.
The Supreme Court ruled that this amounted to religious discrimination and was thus unconstitutional. In a footnote, though, the decision was explicitly limited to the situation at hand. (Two conservative justices, who were part of the majority, disavowed that aspect of the opinion.)
The narrow ruling means the impact of Trinity Lutheran won’t be immediately felt, and that it will turn on further interpretation from lower courts, state legislators, and perhaps ultimately another Supreme Court case.
“While the court limited the decision in a footnote to the facts of that case … the court does go on to talk about a number of cases where it lays out the general proposition that religious entities cannot be discriminated against,” Green said.
Not everyone agrees that the recent opinion might affect charters. Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, which advocates for a strict separation of church and state, said Trinity Lutheran “shouldn’t open the door to those sorts of claims.”
“The Supreme Court has repeatedly recognized that there are heightened concerns with protecting public school students from government-sponsored religion,” he said.
Green does note one reason the Trinity Lutheran logic might not apply to charter schools: They are usually defined in statute as public schools. That means having an affiliation with a religious institution could raise greater church-and-state issues than the Trinity Lutheran case, where a private school was simply seeking to receive a public benefit.
Saiger, though, suggests that the implications of Trinity Lutheran might be even further-reaching than who gets to run a charter school. In his view, the case also raises the possibility of charters that are explicitly religious and teach a sectarian curriculum.
“I think the Trinity case makes it much easier to argue that such schools should be eligible for government support for the secular side of their mission,” he said.
There does not appear to be any data on how many existing charters have a religious association, but the line between church and charter school can be blurry in some cases.
Chalkbeat previously reported on a network of Michigan charter schools run by an organization that used to oversee private Christian schools, some of which converted into charters. The schools continue to emphasize character traits taken from the Bible, including faithfulness, though the schools no longer explicitly connect them to biblical passages.
A 2008 Yale Law Review article points to other examples, like Tarek ibn Ziyad Academy, a charter school in Minnesota:
“Children fast during Ramadan, and the cafeteria serves halal food throughout the year. Vacations take place on Muslim holidays. Students avoid stepping on the carpeted prayer area at the school’s center as they walk to class. Most significantly, classes break for early afternoon prayers; almost all students participate, although the school does not officially conduct them.”
Minnesota, like Michigan, prohibits religious entities from running charters. Tarek ibn Ziyad’s leaders contended that their school was nonsectarian, but it was nevertheless sued by the ACLU in Minnesota for acting as a publicly funded religious school. The school was eventually forced to shut down in 2011 after a state law prohibited out-of-state charter authorizers; it had been overseen by an Islamic humanitarian group based in Washington D.C.
Faulkner, for his part, said that charters should be required to maintain non-religious rules and a secular curriculum. He believes that religious institutions can do that.
“Just because it’s religiously affiliated doesn’t mean it’s going to … teach a particular religion,” he said.