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Religious Charter Schools: Legally Possible and Politically Advisable?

Chester E. Finn, Jr. Distinguished Senior Fellow and President Emeritus, Thomas B. Fordham Institute
Nicole Stelle Garnett John P. Murphy Foundation Professor of Law, Notre Dame Law School, and Senior Policy Advisor, Alliance for Catholic Education
M. Karega Rausch Interim President & CEO, National Association of Charter School Authorizers
Andy Smarick Senior Fellow, Manhattan Institute
Tue, Aug 4, 2020

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Religious Charter Schools: Legally Possible and Politically Advisable?

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Tuesday August 4
Tuesday August 4 2020
PAST EVENT Tuesday August 4 2020

In Espinoza v. Montana Department of Revenue, the Supreme Court ruled that barring faith-based schools from participating in a private school choice program solely on the basis of religion is unconstitutional. With this decision, “no-aid” clauses (known as Blaine Amendments) may have been all but nullified in 37 state constitutions. States now have the freedom to create school choice programs that include provisions for religious schools.

But the logic of Espinoza might not stop there. If religious schools can’t be barred from a private school choice program, can religion disqualify groups from taking part in public charter schooling?

The effects of Espinoza could be profound. Are state-level rules banning religious organizations from running charters now unconstitutional? If so, could a religious organization run a public charter school that uses religion in its curriculum and instruction?

On August 4, the Manhattan Institute hosted a discussion with education policy expert Chester E. Finn, Jr., law professor Nicole Stelle Garnett, and charter school expert M. Karega Rausch, on the legal and policy consequences (and possibilities) of charter schooling following Espinoza.

Event Transcript

Andy Smarick:

Good morning, everyone. Thanks so much for joining us for the religious charter schools' event. This is about whether or not religious charter schools are legally possible, and politically advisable. I'm Andy Smarick, I'm a senior fellow here at the Manhattan Institute. And we're going to talk about what I think is going to be among the most interesting and important education issues conceptually, legally policy wise over the next several years. And this issue has implications for other domains of domestic policy, fundamental questions of constitutional law, the government's relationship with civil society and much more.

Andy Smarick:

Now, we have an all star panel. Really, the best of the best on this subject. And they're going to help us understand questions related to law, and policy, and politics, and practical application, even prudential questions whether this is wise. And I'm going to introduce them in just a couple of minutes. But what I wanted to do first is just set the context, so we all understand how we got to where we are today, and what is likely on the horizon.

Andy Smarick:

In a nutshell, the question that we're dealing with is, can a religious group today run on a charter school? Under state charter school laws, can there now be a Catholic charter school, Jewish, and Islamic, and evangelical Christian charter school? Is this now permissible?

Andy Smarick:

Now, this had been percolating as a matter of just a question for many, many years. But it went from a flight of fancy, to really a possibility just a couple weeks ago with the US Supreme Court's decision in Espinoza. That case revolved around new education tax credit program at the state level. And the idea was the state would provide scholarships to students who wanted to go to private schools, but Montana has what's called a Blaine Amendment, which bans public dollars from supporting faith-based activities. And because of that, religious schools were determined to be ineligible to participate. So the major constitutional and legal question at this point was whether it's okay to have a state program that's available to the vast array of non-governmental bodies but then, exclusively prohibit the participation of religious groups.

Andy Smarick:

In Espinoza, the court ruled that, that's actually a violation of the First Amendment's Free Exercise Clause, to discriminate against religious groups in that way. The key lines from the decision, and this is going to keep coming up in our conversation. The key lines were the following, "A state need not to subsidize private education. But once the state decides to do so it cannot disqualify some private schools solely because they are religious." So the upshot of this is, a government program that supports a wide variety of private schools must include religious private schools. Just put that in your back pocket for a moment because we now have to think about charter schools, and why this could be relevant.

Andy Smarick:

For about 150 years in America, public schools in America were run only by local government monopolies. In each geographic area, there was just one provider of public education, the local school district. And during the 20th century, the US Supreme Court made it clear that these schools had to be completely secular. The court banned teacher-led prayer, and readings from the Bible and much more. The idea here was that since we required students to go to school, and since public schools were run by the government, if a public school started to teach religious instruction, that gets awfully close to state sponsorship of religion, and that runs afoul of the first Amendment's Establishment Clause.

Andy Smarick:

But then in 1991, states started creating charter school laws, which allow a wide variety of nonprofits, in addition that the government to run public schools. Now the state and federal laws said from the beginning that these schools had to be secular, there could be no religious charter schools. Or said in another way, and this will invoke the Espinoza language, States created a public education program called charter schooling that was open to the wide universe of nonprofits, except for religious groups.

Andy Smarick:

But wait, you might be saying, given that chartering allows different types of groups or on many different types of schools, would it really be a violation? Would it really be the establishment of religion to have a couple of those schools to be affiliated with different faith traditions? But even the more important question now is given that key line from Espinoza, maybe it's now unconstitutional for a state to prevent religious groups from running charter schools. That is, couldn't we imagine the court writing in a decision sometime soon something along the lines of a state need not create a charter school law. But once it does, it cannot prohibit some charter schools solely because they are religious.

Andy Smarick:

What I just gave you was a super simplified version of the issue that we're going to be talking about. But I wanted to get us started, and we're going to get into so many interesting complexities like what's called the status use distinction, other precedents like Zelman and Locke, and Blaine Amendments and how this fits into international norms on public, private religious schools. What this means for the elected branches, and courts and authorizers and so on. So, we're going to dive in now.

Andy Smarick:

I'm going to introduce our wonderful panelists. Each will have about five minutes to open, and then we're going to have some back and forth, and I'll ask some questions. Any of you who are watching on video, you can submit questions in the chat function on the right, and I'm going to be picking those up and interjecting them into the conversation along the way. We're going to finish up by 12:15, so you can go about your day. But let me introduce our great panelists in the order that they will speak.

Andy Smarick:

First is Nicole Stelle Garnet, Professor. She is the John P. Murphy Foundation Professor of Law at the University of Notre Dame, and she also serves as a senior policy advisor for the Alliance for Catholic education. She's the author of one of the best books, in my view of the past decade on education, Lost Classroom Lost Community. And as a junior attorney, she participated in the defense of, including religious schools in the first voucher program in Milwaukee. And she also filed an Espinoza like challenge to Maine's town tuition program that was excluding religious schools.

Andy Smarick:

Next up will be Chester Ethan, Jr, known to one and all as Checker. He is President Emeritus and distinguished senior fellow at the Thomas B. Fordham Institute, and a senior fellow at Stanford's Hoover Institution. He's done just about everything in policy; a former US Assistant Secretary of Education, a member of the State Board of Education. He has written or authored like 20 books. And he's been involved in chartering from the beginning, including as an authorizer. He's a veteran advocate of school choice, and he is a longtime proponent, as he says, of allowing religious schools to shelter under the charter tent.

Andy Smarick:

And last but certainly not least is Karega Rausch. He's the interim President and CEO of the National Association of Charter School Authorizers. Karega was in leadership positions for two different Indianapolis mayors, and they were of different parties, interestingly enough. While leading and authorizing for the city of Indianapolis, he actually shepherded the approval process for two different public charter schools that were going to be managed by the local Catholic Archdiocese, an arrangement that we think was the first of its kind at that time, which is a great segue to this discussion of whether or not these religious groups can run secular charter schools, or religious ones, or something else.

Andy Smarick:

Again, I invite all those watching. If you have questions, submit them to the right. And now, let me put Nicole on the spot. There are lots of constitutional legal matters involved here. What do people who are interested in this subject need to know where things stand right now?

Nicole Garnett:

I'd like to start out by just saying when I say, are religious charter schools legally permissible? What I'm talking about and what I think is the interesting, the most interesting question is, can charter schools be authentically religious? That is, could they teach the religion as the truth of the matters as my kids' School St. Joe grade school does?

Nicole Garnett:

They've been workarounds for years, including the one that Karega authorized in Indianapolis, where there were sort of religious light charter schools. They were secular during the day and there may be after school, religious programming. There's really nothing... There's no constitutional questions about that. There are questions about whether religious institutions can run, or should be able to, or require to be able to run secular schools. I'm not that interested in that question. I would prefer religious schools to be religious. I think it's unjust to require them to secularize in order to get charter money.

Nicole Garnett:

But I want to talk about this sort of, can a school like St. Joseph Grade School on Hill Street in South Bend, Indiana, where there's Jesus all over the place be a charter school? And I think there are sort of three important legal questions that we have to ask. The first is, are religious charter schools, authentic religious charter schools constitutionally permissible? And that's an establishment clause question, does the Establishment Clause prohibit religious charter schools? The second is, if they're not prohibited, are they constitutionally required? And the third is, how do we get there?

Nicole Garnett:

So Establishment Clause; as you said, Andy, there's a long standing doctrine in the United States that says public schools must be secular. But really, what those cases stand for is that the government may not run religious schools. Now, historically, and the conventional wisdom has been since charter schools are public schools, they must be secular, and that all states call them charter, or charter schools are public. But the real question isn't whether the state calls them public, but whether they're government schools. And that turns on a different doctrine called the state action doctrine. And that doctrine is a doctrine that is the way that federal courts determine whether the constitution applies to an entity.

Nicole Garnett:

So Congress designated Amtrak, a private entity, and the spring court said you're wrong. It's actually public. It's a government entity. In the same way, a state could designate a charter school to be a public school, and a federal court might say actually, it's a private school for constitution, Federal Constitutional purposes. So the questions, are these schools government entities? And I think the answer in most states is no. And some federal courts have actually begun to say in constitutional terms that charter schools are not state actors for purposes of federal constitutional law. If that's true, if they're private actors and they are schools of choice, then I think they can be authentically religious. So that means they don't violate the Establishment Clause, in most states. And it's really a complicated doctrine that we could talk about question and answer.

Nicole Garnett:

So let's assume we get past this Establishment Clause burden, so we find out supreme court or somebody says, you know what? They're not. It's not... It's perfectly permissible as a matter of constitutional law to let them be religious. The next question is the Espinoza question, well, then can you prohibit them from being religious? And I think that's actually an easier question. Because if they can be religious, then it's a violation of the Free Exercise Clause to say they can't. I think if they can be religious, then Espinoza is quite clear, if they're private schools of choice, the government cannot exclude them from funding those charter schools. That's the easy question. Establishment Clause questions, it's much more complex. And I'm happy to talk more about that, but I know my time is limited.

Nicole Garnett:

The final thing is that... And also, look, on the Espinoza point, even if, if they can be religious and they must be religious, the Blaine Amendments after Espinoza are by and large no impediment to them being religious. The Blaine Amendments are the state constitutional provisions that prohibit the funding of religious schools. And the Supreme Court effectively said in Espinoza, the states can't use its own... Their own constitutions to block... To legitimize religious discrimination.

Nicole Garnett:

The third question before I turn it over, and I think other people have... Probably have a lot to say about this is, well, let's assume they can be religious. And in fact, if they can be, they must be permitted. How do we get there? I have long been a proponent of just advancing private school choice for private schools because I thought, although I believe both of these things to be true for a while, but it would be a distraction, it would get tied up in litigation forever and it would be a mess. After Espinoza, I'm open to experimentation. The question is, how do we get to experimentation?

Nicole Garnett:

I think the best thing, the best way to do it would be for a state legislature to just amend a charter law and say, you know what? We've read Espinoza, we've read the state action cases. We think part charter schools can be religious, we think they must be religious, and so we're going to allow them. And then let the authorizers, we'll figure out a way to authorize them, and other really complicated questions, so that's the best way. And then, what happens to the Establishment Clause challenge? We can defend that.

Nicole Garnett:

Second thing is someone that can and someone will I think, by the end of the year by file a Free Exercise challenge and say, we read Espinoza too, and these charter laws are unconstitutional. That would be, would involve both the Establishment and the Free Exercise clauses. And that I kind of anticipate some advocacy group will do that soon, and I think that's a really interesting question. And the final way would be an executive, a Attorney General or governor might say, you know what? We've read Espinoza, and we think these laws are unconstitutional, so we're not going to enforce them. And those are three paths, I think, to religious charter schools. Each would prompt its own set of litigation, and it's not going to be a fast process to get there. I expect this would be tied up in litigation for a long time, but those are sort of the three legal paths to allow it.

Andy Smarick:

Great. Let me just follow up on one point, so the audience is clear about, actually so I'm clear about this too. A state may very well say, straightforwardly, we have defined under state law, and the federal government has decided under federal law for decades now that public education is secular. What you're saying is that, actually public education being secular is a function of the government running the schools. So once there are non-governmental bodies that are running schools, just because you call them public doesn't necessarily mean that's the case, and that starts to invoke Espinoza and some other kinds of decisions. So how do you respond to people who say, no, our state and the federal government has decided these schools, all public schools are secular, regardless of who runs them? How do we respond to that?

Nicole Garnett:

Well, the first question is, does the designation of them as public make them governmental? And I think the answer is no, so that... So the law doesn't say that public... I mean, we equate public schools with government schools, because that was the way it was until 1991. But that the law, the government... The state action doctrine asks, it says, the constitution only applies to non-governmental actors. That's what the state action doctrine says. So this is comes up, these charter... These cases have come up in other contexts. So I'm a teacher at a charter school and I get fired, and I claim it's because the school was punishing me for my speech. And I file a free speech claim. And the state with federal courts have said the Free Speech Clause doesn't apply to the charter schools because charter school's private. I don't care what the state says it is.

Nicole Garnett:

So that's a really complicated issue. It's not... The question isn't, are they public? It's, are they government actors? That's, that is the state action question, so that's sort of what I would say. Now some courts might say, and I think if we litigated the question and probably [inaudible 00:15:26] divided, some courts might say, we're going to call them government because the state says they're public. And I think that is a... Then, there could be a lot... This is why it would take a long time, I think a lot of litigation around this. Even is more complicated, because it might vary by state; the more the government controls the school, the more it looks like a government school.

Andy Smarick:

Got it. Okay, so I thought I was really ahead of the curve. I wrote this small thing about religious charter schools like nine or 10 years ago, and I thought it was really fancy. And then I found out that Checker Finn wrote something about religious charter schools like 18 years ago. So Checker, you've been thinking about this for eons. So, the floor is yours. What do you think the politics, the policy of this, what do we do?

Chester Finn:

Well, I don't... Thanks very much, Andy. It's nice to be with you. I don't usually get in ahead of you, but I am old enough to be your father. So I have had a head start on this... Sorry... For quite a while. Indeed, in the late 1970s, I found myself standing on the floor of the United States Senate, and beside of the late Senator Daniel Patrick Moynihan, as he argued for federal tuition tax credits to go to students attending religious schools. At the time, there was great anxiety about Catholic schools closing, and the need to do something to help them stay open. And Moynihan and the late Bob Packwood, Republican from Oregon were teamed up in an effort, ultimately unsuccessful, partly because of anxieties about the Establishment Clause in getting this in the law.

Chester Finn:

So I've been at this for a long time, and so is the United States. I mean, keep in mind that until the late 19th century, we really barely distinguished between religious schools and in public schools. And religious schools barely existed until the Catholic Church decided in the 1890s to start one in every parish because the public school, so that they were regarded as Protestants. And therefore, I believe the praise was a threat to the faith and morals of Catholic kids to attend government schools, because they were spouting a Protestant doctrine.

Chester Finn:

So most countries in the world, most civilized advanced, modern countries routinely allow religiously operated schools to receive government funding, and indeed to be incorporated within the system that they would think of as public education. Now, there's some costs to that because usually, the government curriculum is involved with religion sort of added on top by the organization operating the school. So they're not entirely autonomous in countries like England and Australia, and most of Western Europe, actually. But they are able to both receive government funding, and to teach religion and to be operated by religious organizations as religious schools. And they do.

Chester Finn:

And the US is anomalous in this regard, and has been written about an anomaly for it for ages now, because of Establishment Clause anxieties, and very, very complicated Supreme Court litigation over the decades; very inconsistent, very uneven, very conflicting, in some ways. And at some points, actually quite bizarre as to what is and isn't permitted under the Establishment Clause. What Espinoza did, I think was bringing the Free Exercise Clause in, in a big way. And that's created an opportunity as Nicole was describing for things to change. And as we look at the world of charter schools, and I've been involved with that, as you said, pretty much from the beginning of charter schools, and indeed the Fordham Foundation, where I work is an authorizer in Ohio of 11 charter schools today.

Chester Finn:

And it strikes me as we look across the universe of about 7000 charter schools in the country today, that every other sort of school is allowed, encouraged and subsidized to operate in the charter space. Every imaginable philosophy of education, every imaginable grouping of kids, and parents and communities, charter schools are being used today across the country to meet a wide variety of educational, and personal, and social, and community, and communal needs and interests. And incidentally, religious organizations, as Nicole said, have been able to operate secular private schools in one of the many workarounds that already exists, so that people that want their kids to have a religious education but want them to have the government pay for it have been able to do things like go to a secular charter school by day and get religious instruction, often in the same building starting at three o'clock in the afternoon. And not paid for by the state at that point, but nevertheless, offered to the same kids voluntarily, of course, in often in the same building, sometimes by the same people after school closes. We have work arounds of every kind.

Chester Finn:

We also have a different kind of work around in the world of vouchers and tax credits, of course, with religious schools explicitly educating kids at government expense in that realm. So it seems to me that the banning of religious, explicitly religious charter schools that include religion in their curriculum is itself an anomaly within the charter world. And I've been saying that for a long time but I didn't see what the outlet was, what the alternative was going to be until these last few weeks, and the door may now indeed be open.

Chester Finn:

Now I agree with Nicole that by far the best way to go at this would be for a state that wants this to happen, where the lawmakers of that state would like to see this allowed, maybe even tried to amend the charter school law of the state to explicitly permit non-profit organizations, which are religious organizations to operate schools that are not just secular schools. And I hope that some state, I don't think there'll be a whole bunch of states rushing to do this. But it'd be fantastic if a state that wants to maximize choices for kids and that wants to allow people who are religious to send their kids to schools that are religious, I think it would be a great thing if this could happen in the near future in one or another state across the country.

Chester Finn:

And I believe it will, I don't know where. I don't think it'll be Ohio, sadly. But I think it could and it should happen somewhere across America today. Otherwise, we will do as Nicole said, see somebody start such a school, get an authorizer to agree to such a school and then deal with the consequences in a different kind of litigation. So let's go for it, let's try it, let's remove this anomaly. Let's open up the opportunities to other kinds of schools to do what they've been banned from doing for no good reason, in my opinion, other than bizarre court doctrine, and Blaine Amendments that arose in response to people who didn't like Catholics in 1890. Thank you.

Andy Smarick:

That's terrific. And there are two things that you brought up that I want to just put in the parking lot for the time being that we can come back to. One is that there are just so many different types of charter schools that can use whatever kind of philosophy to inform their hiring, and their practices and their instruction, social justice charter schools, and outward bound charter schools and Montessori charter schools. And authorizers always say yes, you can have those kinds of philosophies inform what you do, but it appears that at this point, the one category where we say yeah, that's off limits. It's communities of faith doing that. And I think the courts going to have to deal with that.

Andy Smarick:

The second issue will definitely come back to is, is it prudent to just keep pushing this through the courts? Or is this a complicated enough issue that we really ought to have state legislators talking with their State Department's of education, talking to their authorizers, talking to their governors, and figuring out how best to do this rather than having a court say yeah, do it and then pick up the pieces on the backside? And that is a good segue to Karega, who actually has lived this in a couple of different ways in Indianapolis, and now overseeing the National Association of authorizers.

Andy Smarick:

And interestingly, I want to point out when you were in Indiana, they not only have a charter school law. They also have a series of school choice programs that allow support for private schools to get some government money, so there is some difference there that's worth talking about. So from the point of view of an authorizer and your members, how do you guys see this?

M. Karega Rausch:

Yeah, so really appreciate Andy and Manhattan Institute for having me in for engaging in this some really interesting, and not void of controversy conversation today. But I'm glad to be a part of it.

M. Karega Rausch:

I am a proud product of Regis Jesuit High School in Aurora, Colorado, just outside of Denver. And I'm also a proud father of two school-aged girls. One of which is entering high school this year, and will be following in her daddy's footsteps, also getting a good Jesuit education. And I can't tell you just how meaningful Regis Jesuit was in my life, and I'm just so excited that my daughter is also going to experience the power of that particular faith tradition and faith walk. I also know of too many students, especially black and brown kids in urban locales, that have benefited from an incredibly strong values, faith-based education. And indeed many of those schools have truly been lifesavers for a whole lot of students, some and in kids in communities. So, sign me up as somebody who believes that we need to explore all viable options for those vital community institutions to thrive. They are a really important part of community life in many, many cities doing tremendous work in this space.

M. Karega Rausch:

Now, I'm also thinking on this panel that's going to be a little contrarians and a little skeptical on the advisability of religious charter schools. If you're going to put it clearly, I think that pursuing expanded scholarships and tax credits and importantly, increasing the amount provided to families, some to pick a school that meets their needs is the most viable and best policy option. Not necessarily religious charter schools.

M. Karega Rausch:

Now the degree to which that does happen or does come to an authorizer, there are a number of key considerations that I've been thinking about, and kind of exploring this topic over the last year, or kind of months and years, informed by experiences that we had, I mean in Indianapolis, as was previewed before, as well as kind of work and thinking different places across the country around kind of the work that authorizers do. So, a few practical considerations.

M. Karega Rausch:

So one, the charter bargain is about increased autonomy for increased accountability. I think there'd be a lot of questions that both a faith-based institution and an authorizer would have to think about in terms of, what is an excellent school? And what would be the kinds of ways in which an authorizer would hold a religious charter school accountable for results? What are those kind of results? Certainly, that starts to bleed into questions of curriculum in state standards. Currently, charter schools as defined as public schools in by most folks kind of in the work indicate that they need to take state tests in order to demonstrate how they are meeting state standards. Starts getting the questions of curriculum, and what kinds of things kids should learn and what kinds of things that they would be accountable for.

M. Karega Rausch:

It's nothing to say that there couldn't be more than state standards, thought and deed, Montessori instruction and classical-based schools, and much of other areas that have a pretty, wide holistic curriculum. But the degree to which meeting state standards becomes a part, and a really important part of accountability provisions raises some interesting questions, both for the authorizer and for the religious charter school. Then there are certainly a lot of questions of access that an authorizer and a school would have to think through, is the school going to be open to all families? Is there... The conversations around giving preferential treatment to some kids versus others in a lot of places that is prohibited for charter schools to do.

M. Karega Rausch:

Then you have the thorny question of employment, are staff considered teachers or are they still considered ministers? In that instance, that is going to be a big thorny question that folks would have to kind of work through and think through. Then there are questions of oversight as the school comes into being, especially over finances and educational programs. So, authorizers have a responsibility to uphold student and community interests. How does an authorizer go about evaluating teaching and instruction and its fidelity to the school's mission? To what degree should an authorizer kind of examine religious classes to make sure that those are being taught in such a way that is consistent with what the school is trying to accomplish, and being fidelity... And having a level of fidelity to what the school is trying to do? That would be, I think a tricky kind of conversation to have.

M. Karega Rausch:

Then you've got lots of federal requirements that come into being. Now certainly, the federal government provides a small fraction of resources for schools, but there are interesting kind of federal civil rights questions that would come up. The last one, and there are a bunch of others we can get into in the conversation. The last one that I'll talk about, I would say is the charter community itself, and this is more in the political considerations bucket in that, it's been fascinating how bipartisan charter schools have been for a very long time now. And I think that's because everybody can see their own perspective embedded into what the charter model is trying to accomplish.

M. Karega Rausch:

There are many, dare I say most folks in the charter space right now that are there because of their belief in reinventing public education, trying to what's possible in public education, and for lack of a better term, or really public school people. And so I think there would be a lot of pushback amongst a lot of folks in the charter space around this idea of religious charter schools. A lot of other considerations that we'll get into, but those are some that I've been thinking a lot about and will kind of stop there.

Andy Smarick:

Yeah, so that is absolutely perfect. And I think our audience can see why it was absolutely essential that you be part of this panel, because these questions about how an authorizer has to think about its job in overseeing schools is extraordinarily complicated on the best day. But once you add a new set of schools with a whole new set of constitutional protections around them like religious schools have, this become, the complexities are not something that are intuitive, but you just did a great list of them.

Andy Smarick:

Let's get into some questions. I had a list that I had in mind, but the questions we're getting from the audience are way better than what I came up with, so let me encourage if anyone's watching at home, keep sending in questions. I'll get them in as much as possible. And the first one that I'd like to ask gets to this question of what the court lingered on a bit, especially in Breyer's dissent. And it seems a little bit in the weeds, but bear with me, it's what's called the status you use distinction.

Andy Smarick:

The difference between discriminating against a religious group based on its simply being religious, and then saying, okay, we'll allow you in to the program, but we're going to restrict how you use these funds. So what one of our questioners was asking us is, okay, well, if we allowed this to happen, does that mean that we're going to allow religious charters to use public money to make decisions about discriminating against certain teachers, or about after school programs, or buying textbooks like the Bible? Is there any limit to what the government can actually do in saying yeah, that goes too far on spending money for religious items? Even if we agree that the status question is solved, religious groups, can participate, can states limit how those religious groups actually run a religious charter school and the use of money or other kinds of practices? Nicole, you probably are best positioned to answer that.

Nicole Garnett:

To the status use distinction, which I think I agree with Justice Gorsuch, that it falls apart very quickly. What the majority said in Espinoza as well as in previous case called Trinity Lutheran was that it's unconstitutional to exclude a religious provider from a generally applicable government benefit. So you can't say to the Trinity Lutheran Preschool, you are religious, so therefore you don't get recycled tires for your playground. Or you can't say to whatever the school was, it was an evangelical school, I think in Espinoza, you're religious, so therefore, you can't participate in our tax credit program.

Nicole Garnett:

Justice... So, the Chief Justice says that's discrimination on the basis of religious status. And he says we leave to one side, whether it's constitutional to discriminate against someone because of religious use. So the reason I think it falls apart very quickly is if you say, you can participate as long as you don't take your religion seriously enough to be really religious, that seems to me to be status. So, I don't... But it's a good question. So that's the next question. Can you say, here's some money, so it's unconstitutional to say the Lutherans, you can't run a charter school? But it's not to say the Lutherans, that you can have the money as long as the charter school is not too religious. Now, I don't think that really fall... It's hard to really see how that status use works.

Nicole Garnett:

Now that one thing to keep in mind about this is one comment about whether or not it's unconstitutional to allow government funds to go to religious instruction, and another about the ministerial exception. So the first is in Zelman, and this was a voucher program, not a charter school program. But there was a voucher, a modest voucher in Cleveland that gave much to religious schools, that there was no limit whatsoever on what they did with the money. 96% of the kids went to religious school, and the Supreme Court said that, that doesn't make the law unconstitutional. The fact that there are restrictions on the... There's no restriction on spending the money on religious instruction doesn't make the law unconstitutional.

Nicole Garnett:

In fact, if you add Espinoza together with Zelman, one might make the argument that restrictions on spending the money on religious stuff is itself makes the law unconstitutional. But so let's just say it's not unconstitutional to spend government money on religious instruction as long as the deciding party is the parent and not the government. That's clear after Zelman. So that's where I would say like this is where the status use thing is sort of really hard to get your head around. But I don't think it may actually be unconstitutional to say here's some money, you can have it even if you're a religious entity, as long as you don't spend it on religious stuff. So that's the first thing, my first answer.

Nicole Garnett:

The second is about the hiring and firing of teachers. There's a second case that came out this term, it's called Our Lady of Guadalupe school. It's a case that involved two schools in California. They were Catholic, they fired teachers. They claimed for incompetence. The school.. The teacher said one was age discrimination, one was disability discrimination. This goes up to the Supreme Court, and the Supreme Court says that the First Amendment protects the power of religious schools to hire and fire the ministers without any scrutiny from the government. And these teachers that were teaching religion, so therefore they're constitutionally ministers.

Nicole Garnett:

So I guess the question, which I think is a really interesting one is, let's say there's a religious charter school, and they're really religious. They're St. Joe charter school, and they're authorized by some one of, by Checker, the Fordham Institute, which happens to be a private entity. And so do they... Are they entitled to the ministerial exception? And so I think that goes back to the state action doctrine, if they're a religious school and they're a private school, yeah. If they're not, then maybe they can't be religious. So, I think all of these issues kind of bleed together. I will say, as a person who is a big fan of the ministerial exception, if giving up on the ministerial exception is something that we have to do in order to get to religious charter schools, I'm not really sure I'm for it. Although, I guess I believe enough in freedom that I would let churches sort of make those decisions as long as they were able to know upfront what the bargain was.

Nicole Garnett:

To go to Karega's point, as long as they know upfront what the bargain is what they're entering into, then that's okay. But I think it needs to be made clear up front. And if they're private, do they get the ministerials?

Andy Smarick:

Yeah. Along those lines, I'd love to hear everybody's view on this is we're getting a couple of questions about, so religious charter schools, let's imagine that they are allowed to come into being. So does that mean that just about every regulation related to charter schools then can be applied to them as well on testing, on hiring practices, on the full slate of things? Or does it actually mean to some of Nicole's points, that because there are protections like the ministerial exception over hiring, that state legislators are going to have to go back and reexamine all aspects of their charter laws, or courts are going to have to sort this out? Any thoughts on that?

Chester Finn:

Well, there's going to be a lot of...

Andy Smarick:

Yeah, Checker [crosstalk 00:38:25].

Chester Finn:

[crosstalk 00:38:25] there's going to be a lot of sticky issues to work through here. My own hunch is that we're not just talking about taking a religious school, and suddenly calling it a charter school, and they get money and leaving it alone to be what it was before it became a charter school. I'd rather suspect that I that it will be more like England, where the religious school teaches the state curriculum takes the state exams, but adds religion on top just as a existing charter school that belongs to some idiosyncratic group adds on top of the state standards, and the state assessments, whatever additional thing it specializes in.

Chester Finn:

I don't think we're talking about just taking existing private religious schools and saying, you now get public funding as a charter school. I think that religion will be added on top of what amounts to a public school curriculum. I don't know about all the other rules that apply to charter schools today. I do believe that great and many religious schools won't want to do this. They will opt to stay entirely private, and wrestle with the financial consequences of that, which for some of them are pretty dire. And, or hope for vouchers and tax credits, as Karega was saying in their state. I think a lot of private schools or religious schools won't want to do this, but I think some will want to try it. And will be satisfied to add religion on top of the other things that the charter law would expect them to be and do.

Andy Smarick:

Great. Well, in this next question, Karega, maybe you can take the first swing at it. It's hypothetical, but I think it's going to start to help us reveal what we think the ultimate goal is here. Imagine someone said to us, okay, you guys can have in all 50 states, a private school choice program, where private schools can participate in these programs, including religious schools. And they'll get a solid amount of money, but they're not going to be really touched by very much regulation. So this could be education savings accounts and vouchers, tax credits, whatever it could be. Or we could have religious charter schools in all 50 states instead, where if private... If religious schools want to get public money, they have to go through the charter process and have a more amount of accountability.

Andy Smarick:

So part of this is a political question, which is like the best way to go about this. But also part of it is a prudential question, what is in the best interest of kids in the schools? So is there a reason why people would want to do this the charter route as opposed to say, we got 60 some private school choice programs across the nation, why not just keep having private schools getting public money through the non-charter sector? Karega, any thoughts about that?

M. Karega Rausch:

Yeah. It's the great question why. Again, I may be a little bit of the contrarian on the panel when I started off by saying, I think the best policy option to expanding access for kids and families that really need it is by expanding scholarship and tax credit programs. And importantly, increasing the amount that folks can get from those programs. I actually don't think we're having this kind of a conversation, if scholarship and tax credit programs were funding students at a level that they need to be funded out to get a great education.

M. Karega Rausch:

Now, I actually think that... And so, that's what I think that's the better policy option to pursue. Now, for if religious was were to come into being, I actually think and we have talked about them as kind of a really thorny issues to work through. But I think in the public mind, there are going to be enormous challenges. And those are access questions, who's allowed to come to school? Who gets preferential or not access? Who's allowed to teach? Who's allowed to get hired and fired, and importantly, for what reasons?

M. Karega Rausch:

We've seen this in different places across the country here in my home state of Indiana. There was a big to do in the media not too long ago, around the two institutions that were scholarship receiving institutions that made different decisions on staffing and LGBTQ issues. And boy, did it become a hot button issue right in our community. And that's one that, I'm the one that doesn't think that, that's a thorny issue to work through. I think it is going to be a central issue or question to the viability of this happening in the public mind.

M. Karega Rausch:

I think the other, I think important point to your question, Andy is, I started off by saying that the charter bargain is about autonomy for increased accountability. Those of us who have been in the charter space for a long period of time and know that that autonomy question is one that has to be protected all the time. There are sometimes big shifts in state policy, sometimes little nicks, but that continue to erode the autonomy that schools have. If I were a religious charter school, I would be concerned greatly about the continued eroding of that autonomy. And when does a legislation stop? Because if now they are part of charter schools, then theoretically, additional autonomy infringements will start to impact them as well. And then you start having some really tough questions around how much.

M. Karega Rausch:

And again, someone who's in the charter space, we have to fight this every year in a lot of places, to push back and protect the important operational autonomy that charter schools have. That will be another issue that would certainly come to the fore in this part of the conversation.

Nicole Garnett:

Andy, can I follow up really quick? I think it's a great point. I just want to...

Andy Smarick:

Yes.

Nicole Garnett:

... Start out by saying, you started out by saying what we [inaudible 00:44:31] or either religious charter schools or private school choice. I think there's always the and, or. So I think Checker is completely right, that, depending on the nature of the bargain that the authorizer and the charter school law offers to religious schools, many religious providers will say no. And that's fine. And I think in those, that I've always been a proponent of just private school choice that protects the autonomy and religious liberty of religious schools. I said, I think though that occasionally, and, or is probably maybe constitutionally required. But it's also, there's nothing stopping us from experimenting in some places with a religious charter school with...

Nicole Garnett:

And the only concern... The biggest concern I would have, I do have religious liberty concerns, but I would have a concern, it might take the wind out of the sails of the private school choice [inaudible 00:45:25] we have it as a prudential matter. Because I think for most religious schools, even if the money is less, private schools would prefer private school choice than the more pervasive regulation and accountability that would come with becoming a charter school. But let's just give one final example.

Nicole Garnett:

I mean, I was talking to Tim Ewell, who's the superintendent of Montana Catholic Schools, and he was asking about this possibility. They have schools on reservations. Their kids are not... They really need, desperately educational opportunities. If we could offer a religious charter school option on the Sioux Reservation, or I don't know what tribes are in Montana. The Sioux, that's South Dakota. But maybe we could have a new school that would serve these kids and serve them well. And that school might say, we're willing to accept the accountability requirements. And as long as they're clear, we'll do this in order to serve these kids as long as you let us be authentically religious. I think that's an experiment worth doing. And most, maybe most Catholic schools, I suspect would say it's not, we're not going to go down that road.

Chester Finn:

Let's keep in mind that, I think and Nicole's right, this will be a niche thing and an experimental thing in a lot of places to the extent that it happens. In a perfect world, if we had the choice, the 50 states doing private school choice, the 50 states doing religious charter schools that you posed, Andy, I guess I'd favor the former, the 50 states with private school choice. But the current array of private school choice programs is really skimpy. I mean, the number of states with wide open voucher programs is just a few. The funding of the voucher programs even in those states is very meager. The tax credit depends on voluntary contributions from individuals and corporations into, essentially charitable arrangements for which they then get a tax credit.

Chester Finn:

Those amounts are not large. Either the amount is going in, or the amount is coming out for students. I mean, we don't have a whole lot of private school choice, at least not at a sustainable level going on in America today. And there's huge pushback against more of it, political pushback. So, I don't think the choice you posed is anything but hypothetical.

Andy Smarick:

Agreed. Okay. Let's talk about some more of the practical matters of testing these limits to see actually what pops out of it, and what's good and what's bad. I have to admit, I had this issue come up probably 10, 12 years ago. The younger version of me would have said, let's sue right now. Let's get this into the courts. Let's have the supreme court or some Federal Circuit say, yeah because of Espinoza, this is allowed, use states, you figure this out.

Andy Smarick:

At this point having worked for all these government bodies, I recognize that, that's probably not the best way to do it. That this should have some democratic deliberation, and the practitioners involved in it. My question is about, if you guys were leading a state's effort on this, do you encourage a applicant to go to court immediately? Do you try to get an attorney general in a state to issue some sort of new guidance to authorizers? Do you have the state legislature begin the process of rewriting the law, so they can work out everything in advance? Or do you just say, man, that all would take too long, the only way we're going to get progress on this is for the court to say this is allowable states figure it out? What's the best way to proceed?

Nicole Garnett:

Who's my client?

Andy Smarick:

Hmm.

Nicole Garnett:

Right. So...

Andy Smarick:

Yeah. Okay. Yeah, a charter school applicant.

Nicole Garnett:

Okay, so Karega is correct in my view, that the [inaudible 00:49:06] Checker, the best, the cleanest way to address all of these issues, and then there'll be some that we haven't thought of is for a legislature to think through them carefully. But if my client is a charter school that wants to open up on a reservation in South Dakota, then I don't want to wait around for the South Dakota legislature to act, and so I sue.

Nicole Garnett:

I think, so I as a lawyer, as an advocate for [inaudible 00:49:36] choice for a long time, my nervousness about the litigation path, the Free Exercise litigation path, which is an Espinoza-like challenge, is that it, it would... The court would say, okay, it's unconstitutional to exclude religious schools. And then throw them into an existing charter regime where they don't really worked well, where no one's really thought through all of the issues that are really important that Karega raised. But if my client is a charter school or I am a religious liberty nonprofit, then I see this differently. I see this is [inaudible 00:50:09] just discrimination, and it needs to end. And so I think that we're going to, and hopefully see both in it.

Chester Finn:

As a good attorney, you would counsel your client, however, to be aware of what they're asking for, which is to say, if you prevail in the Free Exercise case and get them allowed into the charter program, you will forewarn them what that may carry with it.

Nicole Garnett:

Yeah. I start out by saying they'll be in litigation for the next five years, but right.

Chester Finn:

And also the regulatory issues, the authorizer issues that they will then have to work their way through and probably litigate one after another.

M. Karega Rausch:

And I would add, we need to think about what increase level of transparency is your client ready to have right in this space? As an authorizer, especially around financial arrangements, and accountability and a bunch of other kinds of things, those most authorizers think about those. And that's public dollars that there needs to be public transparency associated with. I think also important to point out that this conversation may also need a different infrastructure, or different kinds of entities to be authorizers. Being important to remember right now, the vast, vast, more than 95% of authorizers are either school districts. They are connected to public higher education institutions, or they are in state governments. And so those are all entities that think about themselves as public entities, and take things like anti discrimination, civil rights, kind of things to not just like the letter of the law, but it's a part of how they think about public education. And I would be deeply concerned about folks that have that kind of an orientation, how can they effectively oversee?

M. Karega Rausch:

There's possible to learn those skills, but I have some questions around, what would the developmental process need to be in order to authentically oversee and hold a religious charter school accountable for shared results?

Nicole Garnett:

Right.

Chester Finn:

I just want to add, that most countries...

Andy Smarick:

[crosstalk 00:52:31].

Chester Finn:

... Most countries in the world have got that figured out. It is not an obstacle in most of the world to having schools that are operated on religious under religious auspices, and the teach religion be part of the state education system publicly financed.

Nicole Garnett:

Checker, I think I pushed back a little bit on the figured out part. It is true. So I think, I've never been... I've actually thought private school choice, perhaps should require more transparency and more autonomy. I've always thought that, perhaps there's too much. It's not bad to make schools tell the rest of the world what their results are. But on the international front, these battles that these questions that Karega is raising are raised all the time among the recipients by the recipients of funds on the international front. It's not that they figured it out. It's just a constant kind of that.

Nicole Garnett:

I think, the autonomy questions that he raised are too. And if you look at the world, there are constant skirmishes about autonomy in funded schools as the government tries to impose more conditions on receipt of the funding. So they do fund, but I don't think that [inaudible 00:53:40] that doesn't mean these autonomy issues aren't constantly sources of tension.

Chester Finn:

Well, fair enough. But the autonomy issues arise with or without religion also. I mean, Andy and I served together on the Maryland State Board of Education, and discovered to our dismay at her that Maryland charter schools have almost no autonomy on any fret today. This is a bad situation in Maryland, but it is the source of endless arguments too about whether they should have more autonomy. And there all sorts of forces that don't want them to.

Andy Smarick:

If I can just do a 30 seconds worth of self promotion here, when I wrote this book, The Urban School System of the Future, almost a decade ago, I contemplated at the end, if something like this were to happen, what we would probably need is a new form of authorizer. I just called them private school management authorizers. The idea being maybe it's the case that all of the habits, practices, beliefs of secular charter schools, that then inform the work of authorizers wouldn't necessarily translate all that well into private schools being authorized, especially religious ones.

Andy Smarick:

I never knew how that would actually work out in practice. But now based on what some of you were saying, could you imagine a state creating essentially what Minnesota did in 1991, calling is a just a test case, a pilot program; we're going to create a new authorizer, and give that authorizer the ability to authorize six or eight religious schools and figure out how to make this thing work as opposed to build a national, big Supreme Court precedent being uniform? One state does something very small, test it out for a while and then see how it works out and then go back to the drawing board. Does that sound about right?

Nicole Garnett:

Well, some states already have nonprofits who profit, universities nonprofits. Checker is an authorizers.

Andy Smarick:

Checker.

Nicole Garnett:

So I think in a state like Ohio or Minnesota, I'm sure that Karega could tell me if there any other states that have private authorizers. There's just two. I mean, that seems to be the easiest a, it makes constitutional law super easy, b. Then you could imagine, and I think there are many... There are Catholic institutions that are... Religious institutions that are charter school authorizers; Catholic universities, St. Aloysius Orphanage in Ohio, so that already exists. I would actually prefer that route, than another government entity that is authorizing just religious charter schools, or just... I don't know. I think that would be more problematic. But there are only two states where that exists, so.

Chester Finn:

There could be more, of course. That's a state choice as to who is allowed to authorize in the state. But yeah, Ohio has dozens of nonprofit authorizers right now, including some religious organizations and could easily have... I mean, the University of Dayton Catholic College could easily apply to become an authorizer, and qualify to be an authorizer, and specialize in authorizing a handful of religious charter schools.

M. Karega Rausch:

Yeah, I'd say the only part that I would add is, and not saying that either of you are implying this at all. It takes tremendous skill to authorize really well. And one of the things that my organization thinks a lot about is how to do that work well, how to make sure that it's appropriately resourced to do really well. So I'd want to anytime there is on the table in any state kind of currently, kind of expanding the type of authorizers that are available, our question isn't, is that good matter otherwise? It is more, does the institution have the commitment to do that work really well, appropriately resourced, and appropriate? Because otherwise, we run into these issues of, either way too much or too little oversight engagement in some places that results in charter schools feeling like they have zero autonomy, or they are not as accountable as they need to be in some places. So, I think that'd be important.

Chester Finn:

[crosstalk 00:57:53] so important. Absolutely important point, both Minnesota and Ohio struggled with kind of runaway or incompetent authorizers too. And they've had to take action to deal with that issue, so it's a fair point. But having a single authorizer is also a problem...

M. Karega Rausch:

Agreed.

Chester Finn:

... As we've seen in place after place, after place.

M. Karega Rausch:

Totally agree.

Andy Smarick:

Karega, if I'm allowed to give you an assignment of because I think it would be a huge of value to the field is, both what you just said there and then your opening statement laying out very practically why this is so complicated for today's authorizers. I think a lot of people who view this as a theoretical or ideological issue probably don't recognize the practical complications. How many authorizers are there right now in America? Thousands if you include all the school districts? They may face some of these problems.

M. Karega Rausch:

Just under 1000. Just under 1000.

Andy Smarick:

Yeah. So, a lot of policymakers or lawyers who are excited about this may not realize just how difficult this could be. I mean, authorizing like Checker just said, we've been doing this for almost 30 years, and we don't have this perfect yet. This is tough stuff in the best of circumstances. Along those lines, let me just ask a practical question. Checker, imagine tomorrow you're authorizing a shop Ohio, gets an application from St. Mary's, whatever community base group, and they want to start a charter school. Or Karega, say you get in the next week, 10 emails from your member saying, hey, all of a sudden these religious groups want to start charters. Checker as an authorizer itself, what do you tell them? And Karega, what kind of advice do you give your authorizer members on what to do if that hits their desks?

Chester Finn:

I suspect that in the Ohio case, two things would happen immediately. One is that our authorizing team in Ohio would send the proposed operator a very elaborate application form that we send to every proposed operator. I mean, it goes on and on, and on, and on. And also requires all manner of supplemental documentation that the state requires et cetera, et cetera, et cetera. So, the first thing would be an elaborate application form that the group would have to fill out if they want to be serious about this. And the second thing is I'm quite sure that our authorizing team would speak to our attorneys immediately about whether this is something they are allowed to do, if assuming that they the application came back in good shape. And I hope the attorneys would turn out to be Nicole, but at the moment, I'm not sure they'd agree with her. I would encourage them to agree with her, but they are lawyers and there are lawyers.

Nicole Garnett:

I wouldn't...

M. Karega Rausch:

Yeah. No, I think this I can answer your question in literally one sentence, Andy, and it builds on what Checker said, talk to your lawyer, get an opinion from your state's attorney general. That's to do with the advice would be to start with.

Andy Smarick:

That's great. Nicole.

Nicole Garnett:

Well, I mean, look, I think unless the authorizer wants to get involved in litigation, the authorizer would say, I read the law, and it says religious institutions can't run charter schools. Or it says if they do, they must be secular. Now as the authorizer wants to get involved in litigation, that's a different question. But I think within if I am Karega I said, I've looked, read your charter school law and it says, right now, this is prohibited under Ohio law. So I don't... I mean, that seems the authorizer [inaudible 01:01:23] not be the point in which I would start the legal battle. But I understand that this is going... This is going to happen. I had never thought about it until y'all were just talking that somebody might sue an authorizer for not allowing it. I mean, it's sort of a whole new area of litigation. Lawyers, Law... Lawyers are full of mischief.

Andy Smarick:

For sure, at that point. So let's talk about this kind of in the weeds legal issue. And if I... When I was reading the whatever was seven, nine opinions in the Espinoza case, one thing really came out, which is that the court did not overturn Blaine Amendments. In fact, two of the dissenters made very like passing reference to, it seems like you, the majority want to overturn blame that you didn't. And at the same time, Justice Breyer was invoking this case called Locke, which actually made use of the status use distinction, and the court didn't overturn that either.

Andy Smarick:

So if I'm being skeptical of all this, I would say the court didn't overturn Blaine, didn't overturn Lock. It looks like the US Supreme Court is trying to find a way to still allow states in some way to preserve the status thing, which is not discriminating against religious groups based on their religious status, but still allowing Blaine and Locke to stand which is saying, states you are allowed in some way to respect our tradition of separation of church and state, and find ways not to give money or give certain types of privileges to religious organizations.

Andy Smarick:

As a matter of fact, I think Justice Sotomayor even said that it's appropriate for there to be some level of discrimination, or putting religious groups in a different category given our history. I mean, the short question is, why didn't they overturn Blaine? Like, what's underlying all of that?

Nicole Garnett:

Well, Justice Sotomayor was in dissent, so just keep in mind, whatever she said isn't the law. I would say really important, as a matter of federalism, the Supreme Court has no power to overturn state constitutional provisions. What they can say is they can limit their application, so they could say, and what they did say is that, you can't rely on this provision of state constitutional law in order to discriminate against religious institutions.

Nicole Garnett:

The Supreme Court has absolutely no say over what state law means. That's federalism. So they couldn't overturn Blaine, that state law. They could just say some applications of these amendments which have different... There are different provisions that have different reaches. So they could just say, you can't use them for this particular discriminatory purpose. Some Blaine Amendments prohibit funding of all private schools. That does not raise an Espinoza claim. The Montana one was just religious schools, which is why this religious discrimination came up.

Nicole Garnett:

Most Blaine amendments to target religious schools, sometimes they use the term sectarian, which as you pointed out was meant anti Catholic in the 19th century. Someone described sectarian is a dirty word for someone else's religion. But so they couldn't overturn Blaine Amendments. They can only limit their application. As for the status use distinction, I actually don't think that's what's going on. I think Justice Roberts is just trying to get votes, and it was nicer to have seven votes than five. He says explicitly in his opinion, which is, it's, he says, we're not saying that there's really a distinction here, and we're not saying discrimination on the basis of religious Use wouldn't be unconstitutional. We just don't have to reach it in this case. We're leaving that for another day.

Nicole Garnett:

Now, I'm a little more radical than Justice Roberts. So I like to get things nice and clean, but I think that incrementalism is kind of a hallmark for him. And I'm not surprised by it.

Andy Smarick:

Any other thoughts on this matter? No? So, one question that we're getting from some of the people writing in is the international comparison. So I think it's an epiphany to a lot of people that in other Western nations, the distinction between public schools and religious schools just isn't there. So one person actually asked to draw that out a little bit, is there a difference that there's like a state religion in the United Kingdom as opposed to here? O they're just different traditions, they don't have a First Amendment in the same way? So, does anyone just want to talk a little bit more about the international comparisons?

Nicole Garnett:

I would just say that it's not just Western nations. It's most other countries. I've been doing a lot of research in the global south, where it's also quite common.

Chester Finn:

And it's not just the state [crosstalk 01:06:07].

Andy Smarick:

For religious schools to be able to [inaudible 01:06:07].

Nicole Garnett:

Let's just say that sort of like my idyllic funding system is Australia, where every private school religious or not, it's the same funding as every public school. And the funding is actually geared to give schools serving more disadvantaged kids more money. And there are accountability requirements, but religious liberty is protected. That's sort of like the most universal, I think of this kind of funding. But many other countries provide funding for religious schools as, although there are or tend to be regulatory bargains. So you have to abide by the state curriculum, you have to take the state test, you have other things.

Nicole Garnett:

I think that it's most, and we are an outlier in the world for not providing funding for religious private schools generally. Greece doesn't, Mexico doesn't. There's more... There's a few other places where it's not available. But certainly if you added up all the countries in the world, you would find that the norm is funding of private and [inaudible 01:07:08] schools rather than the other way around.

Chester Finn:

Just to add, that it's multiple religions. In England, it's not just Anglican schools. There are Jewish schools, and Muslim schools and so on, in addition to the purely secular schools that are a very large number of them, of course. But they... But it's many different religions operate this way. But the regulatory trade offs are not trivial. I mean, the state curriculum, the state has sometimes state certification of teachers. We will run into all of those things in the US, as we have done within charter schools. I mean, do charter schools have to have state certified teachers? That's a big issue all by itself.

Nicole Garnett:

I would say on this one point, and I think Karega pointed this out, given this particular political moment with respect to charter schools, it might not be the best moment for religious institutions to jump onto the charter school bandwagon because in the charter movement, these autonomy issues are now front and center. And so, and it's not that their charter schools are no longer the darling of everybody in the education reform movement. And they are under a lot of pressure. So if I were advising somebody who said I want to run a religious charter school, I would advise them that you need to be aware that the politics are complicated.

Chester Finn:

Nicole, obviously is both a radical and a very cautious advocate.

Nicole Garnett:

I'm a lawyer.

M. Karega Rausch:

If any [crosstalk 01:08:36].

Andy Smarick:

Let me just...

M. Karega Rausch:

Go ahead, Andy. Go ahead.

Andy Smarick:

Yeah. No, please.

M. Karega Rausch:

No, just one other area for folks that are serious about kind of trying to think about this to consider because we experienced this in my home state of Indiana. And that is even for state policymakers that would be receptive to this idea, you better have an answer for where's the money going to come from? This is in by and large, probably not revenue neutral to the state. You're probably going to have students the state was not paying for their education now coming into the system, maybe. But what the experience we had in Indiana, that's a corollary here was, Indiana's charter school law didn't have an age limit in terms of the age of students that could achieve, or that could attend a charter school.

M. Karega Rausch:

And so we had a number of school that started coming on board that were designed to serve over age and accredited students, and so we're doing a really good job. All of a sudden, we had even some charter friendly policymakers that started saying, if this gets too big, our state budget isn't able to handle this. And so again, I have no idea the scope of the market that of various charter schools, but it is something that proponents of this will want to consider even amongst friendly lawmakers.

Andy Smarick:

Great. Well, we only have a couple of minutes left actually, and this is perfect. I want to give each of you a minute or two just to either say something that you haven't had a chance to say yet to underline something, or to give us a prediction because people who don't follow this too closely may not be able to think about all the different possibilities. So if you want to give some idea of where you think this lands in a year, three years, five years on the general question of, can there be authentically religious charter schools up and running in America somewhere? Nicole, do you want to start?

Nicole Garnett:

Right. So, I would say two things. I'm still on the fence about policy wise, whether the best path forward is just expanding parental choice or charter schools, allowing religious charter schools. I would like to see... I think that we should do both, that would be my first thing. The second thing is, where is this going? We're going to see litigation one way or the other, and it's going to be protracted. And there's a lot of constitutional law questions lurking in this here that I find fascinating, and I don't know 100% the answer. But I suspect lawsuits will arise in multiple places, and over time, the Supreme Court will eventually have to resolve this.

Chester Finn:

One of the things that were...

Andy Smarick:

Great. Thank you. Checker.

Chester Finn:

We are already surrounded partly because of the coronavirus epidemic. We are already surrounded by all manner of educational innovation taking place in America. I mean, parents are podding into something that isn't quite clear whether it's a private school or a public school. They are creating new relationships with existing charter schools, so that they can educate their kids at home in configurations that didn't exist before. We're seeing hybrid forms of choice where kids are going to be in school part time, not in school part time. Schools operating two different kinds of program. We're seeing a huge amount of innovation and creativity, and entrepreneurialism taking place in American education right at this moment.

Chester Finn:

I believe that the religious charter school idea is going to be one of those that gets explored, whether it's through litigation. I suspect Nicole is right, the litigation will come first because somebody is going to go to court in order to do this. And you can't stop them from trying. I hope that we also have a state that's willing to try to do it through the legislative process. I don't know whether we will. But in time, I suspect we will. It'll probably be some sort of red state that wants to maximize all sorts of forms of school choice, and they'll probably put limits on it as to how many there can be, and which kinds of kids have to be served, and things like that.

Chester Finn:

I'd like to see this tried. I think it will be tried. I think we are however, on the... In the case of religious charter schools, we are at the beginning of something. And kind of like when Minnesota enacted the first charter law, and we had no idea what was going to happen there or anywhere else in the country at that moment. We've gotten a lot of experience with that. I think we're at another sort of a starting point right now.

Andy Smarick:

Great point. Karega, take us home.

M. Karega Rausch:

My last minute, I stopped making predictions, especially when the worldwide pandemic hit. And everybody thought that it was not going to be well, not everybody. But a lot of people thought school folks, this is going to be a week or two or three. And we're still talking about remote learning now. So I stopped making predictions around what's going to happen in the future, completely.

M. Karega Rausch:

What I will say is, sign me up as one who believes that we have an urgent need to make sure that we expand access to great schools for kids. And that includes urban schools that serve, especially lower income kids that need something better. And schools have been doing this for a long period of time, so sign me up for that. Sign me up for one that wants to figure out viable ways towards that. And I will end by where I started, I'm skeptical that really charter schools are the right pathway at this point in time for that.

Andy Smarick:

Terrific. Well, I want to thank each of you. I feel a whole lot smarter now, after having listened to all of you on the politics, on the constitutional, on the practical issues of all of this. I think it's going to be fascinating over the next couple of years to see how this ends up rolling out. And Checker, to your point, maybe the best way to end is yeah, the first charter law got enacted in 9192. But heavens, for ever since then, they've been evolving this, trying to figure out financing, and figure out facilities and so much more. So it's not like this is going to be solved in total in six months or a year, but I like the idea. And we're at the beginning of a longer process. It's going to be legal, and political and otherwise.

Andy Smarick:

So sincere thanks to all of you, and for all of our guests who were watching today. Take care. Hope to see you soon.

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