religious charters?

Churches running charter schools? The latest Supreme Court decision could open the door in some states

PHOTO: Grace Tatter

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.

For instance, some private Catholic schools have converted into charters; a 2014 report examined 18 schools across three states that had undergone this conversion.

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.

Spread the wealth

A few Colorado charter schools won ‘the lottery’ in this year’s round of school construction grants

Samantha Belmontes, 7, tries to keep a foam ball rolling in the center of her tennis racket for as long as she can in a class at Ricardo Flores Magón Academy in 2011. (Photo By Helen H. Richardson/The Denver Post via Getty Images)

Five Colorado charter schools are among the nearly three dozen schools getting new roofs, HVAC systems, or even entire new buildings courtesy of state land proceeds, lottery funds, and marijuana tax revenue.

The State Board of Education this month approved $275 million in grants through the Building Excellent Schools Today or BEST program, with schools and districts contributing an additional $172 million for $447 million in total construction projects.

This is the largest award the state has ever given, a 60 percent increase from the nearly $172 million given out last year. It’s also likely to be the largest award for some time to come. With this grant cycle, the board that oversees the BEST program used up its existing ability to issue debt, similar to the limit on a credit card, and next year’s grants will be limited to cash awards of roughly $85 million.

Charter schools traditionally have not done well in the competition for BEST grant money – a sore point for advocates because the schools can’t bond off property tax revenue like school districts can –  but this year, with more to spend overall, the committee that distributes the money also gave more of it to charter schools.

In a typical year, the grant program funds about half of the requests that come in, after prioritizing them based on a number of criteria, including health and safety concerns. This year, almost 70 percent of requests were funded.

Jeremy Meyer, a spokesperson for Colorado Department of Education, said officials in the capital construction program also made a deliberate effort to reach out to charter schools and explain the requirements of the grant program. Some of the successful applicants had applied before and were able to make refinements to this year’s applications. Representatives of charter schools, meanwhile, said this iteration of the BEST board seems more receptive to their needs.

“A lot of it was a function of them having more resources to distribute,” said Dan Schaller of the Colorado League of Charter Schools. “It’s a very positive development, but it’s important to keep it in context that over the last five years, charter schools have received in aggregate less than 1 percent of the funding.”

About 13 percent of Colorado students attend charter schools, which are publicly funded but independently run and exempt from some rules.

Legislation passed in the 2018 session increases the amount of marijuana tax money going to the grant program to 90 percent of all recreational marijuana excise tax revenue. Before, it had been capped at $40 million a year, even as the state took in far more pot tax money than was originally projected. Of this money, 12.5 percent will be set aside for charter school facilities needs.

However, state lawmakers balked at allowing the BEST program to borrow off of marijuana revenue, given the uncertain regulatory future under President Donald Trump and Attorney General Jeff Sessions, who is hostile to legal marijuana.

Without the ability to issue new debt, future awards are more likely to go to roof replacements and new heating and cooling systems than to new buildings, like the new elementary school approved in Adams 14 or the new buildings for Ricardo Flores Magón Academy in northwest Denver and Swallows Charter Academy in Pueblo.

Having the state fund a new building for a charter school is “like winning the lottery,” said Jane Ellis, who works with charters to find low-cost financing for their facilities.

This was Flores Magón Academy’s third attempt at getting a BEST grant. The state-authorized charter school serves roughly 300 students from kindergarten through eighth grade, most of them from low-income families. The school sits in a pocket of unincorporated Adams County at West 53rd Avenue and Lowell Boulevard, near Regis University, and most of the school’s families live in Denver.

In 2011, the school bought the Berkeley Gardens Elementary building, which had been shuttered for a decade. The school was built in 1906 and has several additions.

“Each add-on is very unique and reflective of its decade and comes with its own delightful challenges,” said Kaye Taavialma, a former executive director of the school who is working as a consultant on the building project. “We have to be very cognizant and aware of any precipitation.”

The roof leaks, the pipes leak, there aren’t enough bathrooms, and there’s asbestos in the walls and in the glue that holds down multiple layers of carpet. Portions of the school have been blocked off due to mold problems. The office is in the center of the building, without a clear line of sight on the entrances, creating security concerns. During one storm, a window blew out in a classroom. Fortunately, no students were injured, Taavialma said.

The school got $15.5 million from the BEST program and through a waiver only has to contribute $818,000 to the total project cost, rather than the $3.3 million that would normally be required under a state matching formula. The new building will be built on the site of the play fields and should open to students during the 2020-21 school year.

“For our school, this is tremendous because coming up with $3 million would have been darn near impossible,” Taavialma said. “As we see charters continue to proliferate and they’re being asked to move into buildings that either weren’t constructed to be school buildings, or like we experienced, a school building that has been sitting vacant for a long time, I hope this is a trend that continues.”

You can see the full list of grant winners here.

Cut off

Michigan’s third-grade reading law could penalize bilingual programs

PHOTO: Koby Levin
Elementary schoolers in an English class at Academy of the Americas in Southwest Detroit. More than 70 percent of third-graders at the school could be held back starting in 2020.

The grocery store down the street from Academy of Americas blasts Mexican pop music over the radio. A few blocks away, a taco truck takes orders in English and Spanish. On the Academy’s playground, third-graders go about the business of play using whichever language happens to land on their tongues.

Back in the classroom, kindergartners learn to add, subtract, and find the United States on a map using Spanish. Third-graders sit through English class, then walk across the hall for science class with a teacher who addresses them only in Spanish.  The school, like the Southwest Detroit neighborhood that surrounds it, is truly bilingual, and it has the support of parents and experts who argue that “language immersion” at an early age helps English- and Spanish-speakers effectively learn two languages for the price of one.

But dual-language immersion programs like this one are about to run smack into a controversial state law. Beginning in 2020, third-graders at Academy of the Americas won’t be able to move on to the fourth grade until they pass a state reading exam — in English.

Critics have raised a wide range of questions about the 2016 law, which would have caused nearly half of Michigan students to be held back a grade if the law took effect last year.

But perhaps most puzzling is that a law designed to improve literacy in Michigan could penalize the small handful of programs with a track record of teaching students  — especially English learners — to read in not one, but two languages.

When 89 third-graders at the Academy took the test in 2016, only a single student met state standards. If the law had been in effect, almost every one would have repeated the third grade.

While the school is among the most highly sought programs in the district, the low reading scores were not terribly surprising. Kindergarten classes at the academy are conducted in Spanish for 90 percent of the school day. By the third grade, students hear  Spanish for 60 percent of the day. Experts in bilingual education say students in such programs typically fall behind their English-only peers in reading, then catch up around middle school.

But under state law, third-graders in Michigan’s roughly 10 bilingual programs could be held back anyway.

“I can’t wrap my head around it,” said Norma Hernandez, the district’s former director of the Office of Bilingual Education. “Our kids are going to be left behind.”

Academy of the Americas was founded by Hispanic parents determined to help their children hold on to their native language. Learning English, they knew, was both inevitable and necessary in the United States. But why couldn’t a school also help children master the language spoken at the family dinner table?

As it turns out, dual-immersion schools like the Academy are backed by solid research showing that students who learn more than one language from an early age tend to catch up to their monolingual peers in English reading. This holds true even for students who speak Spanish at home, and it also helps them maintain their native language. More than 1,000 similar programs are in place across the country.

“They’re learning to read and write in both languages,” said Cecilia Jungo, a parent at the school, speaking in Spanish. “They’re totally bilingual,” she added.

Earlier this month, folders were propped up on every desk in a third-grade social studies classroom at the Academy, forming a barrier in case students felt tempted to scan their neighbors’ tests. As some began to fidget, the teacher slipped in a vocabulary lesson.

“If you are already finished with the test,” she said, speaking in Spanish, “just put your head on the — what?”

“The table!” the students shouted — also in Spanish.

In the hallway outside, Principal Nicholas Brown said that this minilesson will eventually improve the students’ performance on language tests, in English as well as Spanish.

“We’re teaching kids to read and write,” he said. “When they learn to read in Spanish, they are able to transfer those skills to English, so that when English is introduced they’re able to attack it.”

He admits that this approach won’t pay dividends on English reading tests right away, but says they will catch up by middle school.

But this model of reading is “not the same theory that the lawmakers were adhering to when they developed the law,” said Paula Winke, a professor at Michigan State who studies bilingual education. Legislators pointed to a different body of research — studies showing that students who don’t learn to read English well by the third grade are less likely to graduate high school.

Both models may hold some truth, Winke said, but the law only makes room for one. The learning patterns of bilingual students, well-established by researchers, were apparently “not considered,” she added.  

Researchers at Michigan State are studying how the law will affect all students in immersion programs, including native English speakers. But they have already concluded that third-graders who speak English as a second language could be held back at disproportionate rates. According to Winke’s analysis of previous years’ test data, some 70 percent could be flunked.

Those projections are forcing dual-language programs to make tough decisions, especially when most of their students arrive in kindergarten speaking a language other than English.

Escuela Avancemos!, a charter school that stands only a few blocks from the Academy, offers some of its students a similar dual-language program. Kindergartners – most of whom speak Spanish at home — hear and speak Spanish for 90 percent of the school day. The proportion of English rises in each subsequent year.

But thanks to the reading law, that could change. “We’ve had to play around with those percentages,” Principal Sean Townsin told Chalkbeat during a school visit last month. “We’ve had to tweak it a little bit, especially in anticipation of the third-grade reading law.”

Townsin acknowledges that an extra hour or two of English instruction per day might not be enough to save his students from repeating the third grade. Last year, 39 of the 47 students tested in reading would have flunked. He also plans to assemble samples of students’ work, taking advantage of a section of the law that allows students to prove their reading ability to the state by submitting a portfolio instead of taking a test.

Brown, principal at the Academy, also plans to send portfolios to the state, but he won’t reduce the amount of Spanish students hear in class. He thinks the bilingual program is largely responsible for the school’s enrollment growth of 50 percent in the last two decades, no small accomplishment in a city where schools compete fiercely for students.

What’s more, he says parents would revolt if  he watered down the immersion program.

“At the end of the day, our parents are very clear” in their support for the program,” he explained. “The school was created as a direct response to a community need.”

The Academy was founded in 1992 by a group of Hispanic parents who wanted a school that wouldn’t alienate the children of Southwest Detroit from the language of their grandparents. They believed that hearing teachers and classmates speak Spanish would help students stay connected to their culture and make them more employable.

Brown, the son of a Venezuelan and a Louisianan, knew first-hand that in traditional schools, English can replace a student’s native language rather than complement it. He says he rejected Spanish as a teenager and refused to speak it for seven years, relenting only after a visit to Venezuela made clear that the language was a link to his family.

These days, when students say “hello” in the halls, he responds in Spanish.

But he knows that these students could soon pay a price for their bilingualism. Flunking a grade can have severe emotional consequences, and there is little evidence that repeating a grade is beneficial to a child’s learning in the long-run.

“If students are retained because they didn’t pass a reading test, that’s going to hinder their education,” said Diane Rodriguez, a professor at Fordham University who specializes in bilingual education. “If those legislators went to another country, and they were given three years to pass an exam in a second language, I’m wondering if they’d be able to pass it.”

Brown, for his part, is waiting for clarification about the law before it goes into effect in the 2019-2020 school year.

“I have more questions than answers,” he said, adding that he would like to see the law changed: “I hope the program will speak for  itself.”

Barring a change in course from the Legislature, his hopes rest with parents and with Superintendent Nikolai Vitti. Under the law, parents can request an exemption if their child fails the third-grade reading test, but the request must be approved by the superintendent for the child to move on to the next grade.

deysi martinez
PHOTO: Koby Levin
Deysi Martinez, president of the PTA at Academy of the Americas, says the state should test third-graders there in Spanish.

Parents at the Academy, however, argue that the state shouldn’t use its resources to grade student portfolios and process exemptions to the law.

Deysi Martinez, PTA president, noted that some states, like California and Colorado, allow students in immersion programs to prove their reading skills by taking additional reading tests in Spanish.

“In third grade, they’re reading mostly in Spanish,” she said of students at the Academy. “It doesn’t make sense for the test to be in English.”