What Charter Schools Need to Know About Using Religious Facilities

Aug 19, 2015 10:16 AM | by Robert Reed

The growth of public charter schools and the need for access to facilities are often inextricably linked. However, charter school leaders face increasing impediments when seeking to access suitable public school buildings or the public funding required to build new school facilities. Worse yet, some charter school opponents have resorted to blocking access to facilities as another method of stifling or undermining charter school expansion. Lack of access to the facilities necessary to accommodate the rising parental demand for charters inevitably places charter school leaders in the precarious position of exploring other facilities options. And one such alternative option is opening a public charter school in a facility owned or operated by a religious institution.

In a new publication released by the National Alliance for Public Charter Schools, Separation of Church and School: Guidance for Public Charter Schools Using Religious Facilities, we analyze legal considerations and offer useful guidance to help charter school leaders avoid potential risks as they seek to locate their schools in religious facilities.

Download the report here.

Litigants have been challenging public school decisions that result in an affiliation with a religious organization, and recent legal decisions, including the Seventh Circuit’s Doe ex rel. Doe v. Elmbrook School Dist. decision, have changed the legal backdrop. Further complicating matters is that, to date, the U.S. Supreme Court has yet to offer conclusive guidance on exactly which activities result in a permissible public school affiliation with a religious organization and which will be deemed unconstitutional. As such, there continues to be uncertainty concerning the rules applicable to public charter schools desiring to locate in a religious institution.

Additionally, the developing state of the law also creates questions regarding whether a public charter school’s decision to lease from, or locate within, a religious institution contravenes the Establishment Clause set forth in the First Amendment to the U.S. Constitution. It is within this context that the National Alliance’s publication provides critical guidance to help charter school leaders navigate the ever-evolving legal terrain surrounding this issue and overcome any hurdles they may confront. Useful to charter school leaders, advocates, attorneys, and operators, alike, this publication combines policy background, legal analysis, and practical recommendations (including an appendix with sample lease provisions) that will allow various stakeholders and readers to understand and assess the various considerations inherent to a public charter school’s affiliation with a religious organization or facility. The National Alliance remains committed to working with the charter school community to develop, increase, and sustain charter school growth, and we believe this publication will help with that endeavor.

Robert Reed is the Senior Director for Legal Affairs at the National Alliance for Public Charter Schools.