A U.S. Supreme Court decision is introducing a new type of charter school that’s likely to cheer conservatives but alarm many progressives: the religiously-affiliated charter. Those of us in the charter movement need to figure out how to keep them from splitting the charter coalition.
Ever since the first charter schools emerged almost thirty years ago, the sector has shown a remarkable ability to address the concerns of its sharpest critics, especially progressives. Many on the left detested charters run by for-profit companies—and the proportion of such schools has dropped precipitously. Critics argued that charters were facilitating racial segregation, whereupon “diverse by design” charters popped up nationwide. Others worried that too few charter schools were led by educators of color; initiatives to address that concern started making real inroads.
Now, however, a recent U.S. Supreme Court decision is introducing a new type of charter school to the movement that’s likely to cheer conservatives but alarm many progressives: the religiously-affiliated charter. Regardless of who wins the nation’s tightly contested election, such charter schools are likely coming to a neighborhood near you. So those of us in the charter movement need to figure out how to keep them from splitting the charter coalition.
What’s essential to understand is the distinction between religiously-affiliated charter schools and charter schools that can actually offer religious instruction. The first is probably now required in states that allow charter schools under the U.S. Constitution, as interpreted by the current Supreme Court. The latter might be—but that’s still an open question. That’s why Secretary of Education Betsy DeVos recently said that religious organizations would no longer be prohibited from applying for federal Charter School Program grants—but didn’t go so far as to say that such entities could actually provide religious instruction in their schools.
At issue is the Free Exercise Clause under the First Amendment. In the 2017 decision in Trinity Lutheran Church of Columbia v. Comer, the Court ruled 7-2 that it was unconstitutional for a state to discriminate against religious organizations when making grants to non-profit organizations for non-sectarian purposes. (At issue in that case was a program to pay for safety improvements for pre-school playgrounds.) Then, in June 2020, a 5-4 majority ruled in Espinoza v. Montana Department of Revenue that this reasoning applied to tax-credit scholarship programs as well; if states want to fund private school scholarships they cannot exclude religious schools from their programs, as that violates the Free Exercise Clause.
What does that mean for charter schools? Especially given that federal law allows grants under the Charter Schools Program to flow only to non-sectarian schools, and that states also prohibit charters from being run by religious organizations or teaching religion? (Churches and other religious organizations have housed legally distinct charters in their buildings from almost the beginning. And some religious schools—especially Catholic ones—have converted to charter status.) As education law expert Joshua Dunn explained in Education Next, it comes down to a distinction between religious “status” and religious “use”:
In Trinity and Espinoza, the states had discriminated solely on the basis of the religious status of the institutions. The court left the door open a crack to possible state-funding restrictions if those constraints were based on religious use. That is, the courts might distinguish between funding for a playground and funding for religious education.
However, it seems the majority has little appetite for such limitations. In Justice Neil Gorsuch’s concurrence in Espinoza, he asserted that the status-versus-use distinction does not work under the Free Exercise Clause. He noted that the clause guarantees exercise of religion, not just the right to believe or hold a religious “status.” Believers must be able to act on their beliefs.
But Justice Breyer, writing in dissent, did not agree. Dunn again:
Breyer, who joined the majority in Trinity Lutheran, said Espinoza was different because Montana’s scholarship program clearly subsidized religious instruction, as opposed to the funding of playground resurfacing, which he views as categorically different….“What about charter schools? States vary widely in how they permit charter schools to be structured, funded, and controlled. How would the majority’s rule distinguish between those States in which support for charter schools is akin to public school funding and those in which it triggers a constitutional obligation to fund private religious schools?”
The “status” versus “use” debate also featured prominently in an unanimous ruling by a federal court last week, which found that Maine’s “tuitioning” program does not violate the U.S. Constitution even though it excludes religious schools. For over a century, some sparsely populated towns in Maine and elsewhere in northern New England have paid the tuition for students in their catchment zones to attend private high schools, rather take on the cost of building and running their own public schools. But parents are not allowed to choose religious private schools. As Education Week’s Mark Walsh explained:
The appeals court said it was significant that the Supreme Court rulings were based on the religious status of the institutions denied participation in the funding programs at issue. Maine's program imposes a prohibition based on religious "use" of the state aid, the court concluded.
"From this vantage, we find it significant that Maine provides tuition assistance only to those who cannot get the benefits of a free public school education directly from" one of the state's 260 school administrative units, or SAUs, the court said.
This likely won’t be the last word. The Institute for Justice has already announced that it will appeal the decision to the Supreme Court, which it hopes will clarify that religious “use” is no reason to exclude religious schools from programs like these.
Back to charter schools: DeVos is probably right that it’s unconstitutional to prohibit religious organizations from applying to create charter schools, even if it’s not yet clear whether the Constitution would protect their ability to run those schools as religious entities. To see the consequences, it’s helpful to examine how state laws currently handle the issue. Let’s look at Ohio, where the Thomas B. Fordham Institute’s sister organization, the Fordham Foundation, is a charter authorizer.
Sections 3314.029 and 3314.03 of the Ohio Revised Code state that a proposal for a charter school must include a statement promising that the proposed school will be “nonsectarian in its programs, admission policies, employment practices, and all other operations, and will not be operated by a sectarian school or religious institution.” Thus, as an approved authorizer operating under contract with the Ohio Department of Education, we at Fordham reject any application that proposes to be sectarian or to be operated by a sectarian school or religious organization—even if the application would otherwise lead to a fine school that would warrant our serious consideration.
Most likely, the State of Ohio, and authorizers like Fordham, are now violating the U.S. Constitution by enforcing the prohibition on schools “operated by a sectarian school or religious organization.” But it’s not yet clear whether we may continue to reject a school just because it is sectarian “in its programs, admission policies, employment practices, and all other operations.”
Time will tell what this will mean for the charter school movement and the politics surrounding it. It seems likely that the creation of religiously-affiliated charter schools will broaden the racial divide on the left when it comes to support or opposition for charter schools. Black and Hispanic churches may see chartering as a great opportunity to serve the children in their communities in new ways. White liberals—a group that increasingly identifies as non-religious—will likely find this to be yet another reason to oppose charters. Especially, if some day, the U.S. Supreme Court rules that churches that run charter schools may also provide religious instruction.
Are schools essential or aren’t they? Are teachers essential workers or aren’t they? How would Americans respond if large numbers of doctors, nurses, policemen, firemen, and postal workers simply opted to stay home—and their unions defended them? If you’re essential, you go to work. Some of your work you can maybe do from home, but all your work needs to be done and done well because society is counting on you.
My wife and son operate a non-profit medical research lab that’s deemed essential under the state’s rules and that’s stayed open throughout the pandemic (including some Covid-related work). While making allowances for staffers with health issues and childcare difficulties, they’ve been able to count on almost everyone showing up regularly, with some coming in on the days when they cannot effectively do their work remotely.
But the public schools of Montgomery County, Maryland, where we live and where the lab is located, remain completely closed, not because the superintendent and board don’t want them open or haven’t made elaborate plans for getting them open safely, at least for students in greatest need, but because their employee unions are obdurate. This despite strong pushes from the State Superintendent for Montgomery County to join most of Maryland’s other districts in getting kids back to school.
Across the line in D.C., schools chancellor Lewis Ferebee has just been forced by the obduracy of his teachers union to cancel carefully-made plans to bring needy elementary students back to school next week.
And some kids I know well (names redacted to protect the innocent) who go to expensive private schools that were planning to get them back in class at least a couple of days each week have just been advised that only a handful of teachers will actually be present in person, leading the schools to suggest that families may wish to change their plans and stick with virtual education from home.
This is insane and irresponsible. We know from a thousand sources that almost all kids are better off in school, both for purposes of academic learning and for all manner of social, socialization, and SEL benefits. We know that poor and minority students are harmed the most by not going to school. We know that millions of parents’ lives have been dealt extremely damaging blows by having to forego their jobs and other obligations in order to care for their out-of-school children. We know that there’s ample guidance about how to reopen schools in ways that minimize the risks to the health and safety of both children and adults
We also know that hundreds of schools and school systems are actually doing this. When the Washington Post surveyed the country’s fifty biggest districts a couple of weeks back, it found that “twenty-four have resumed in-person classes for large groups of students, and eleven others plan to in the coming weeks.... Four more have opened, or plan to open, for small groups of students who need extra attention.” Many private schools are managing this, too, including both day schools and fancy boarding schools. So are lots of charter schools.
Nobody should be cavalier about this. Covid-19 is real and on the rise. A number of teachers and other school staff are elderly or have preexisting medical conditions. Social distancing and ventilation are challenges for many schools, and most that have reopened are on split-shifts for kids, with some instruction online, with some instructors working from home, and usually with full online options for families that prefer it and kids who can’t risk entering the building.
Given the choice, lots of families are opting for the online version. But at least they have a choice!
The pandemic situation is obviously in flux, and many schools and districts have had to change plans, most often shifting from in-person or hybrid to fully online, sometimes because of the medical situation in their communities—but, sadly, sometimes because of teacher resistance to coming back to work, no matter the schools’ careful planning to bring them back safely. That has happened in the charter sector, too, showing that unions aren’t always the reason for teachers’ resistance to returning to their classrooms.
Nor is it entirely partisan. Though some people doubtless concluded that if Donald Trump and Betsy DeVos want schools open, it must be a bad idea, in a number of cities—e.g., Washington, San Francisco, even New York—Democratic mayors have pushed their schools to reopen.
But it’s not nonpartisan, either. While Trump has pressed schools to open, Joe Biden has excused them for staying closed on grounds that Uncle Sam hasn’t ponied up enough money to cover the costs of opening, the suggestion being that obdurate Republicans are the problem. (If more stimulus dollars get appropriated post-election, will all schools swiftly reopen?)
I understand that getting schools reopened is complicated and carries real risks. The big-picture question is whether those risks are greater for our kids and our society than keeping schools closed and kids at home.
Complicated, yes, and when done intelligently and safely it’s not cheap. But it’s not impossible! That’s true of labs and hospitals, too, of fire departments and police stations and post offices. But to my knowledge, they’re all open. Because they’re essential. And so are the people who work in them.
Are schools essential or aren’t they? If they are, weren’t they also essential in September? Now it’s November, for Pete’s sake. How many schools and school systems wasted the past two months negotiating or dithering or hoping instead of taking decisive action—action that’s arguably tougher to take today because of the virus resurgence.
In the final analysis, do schools exist for the benefit of kids and parents and taxpayers and American society or for the benefit of their employees? If some are open, more could be. If many are open, most could be. When most are open, almost all could be. Why wasn’t that happening yesterday? Why is that not happening now?
Spend a few minutes on education Twitter or listening to the loudest special-interest voices, and you’d think the future of public education hinges on whether Mitch McConnell, Nancy Pelosi, and the president can agree to another stimulus deal. That’s just a short-term Washington game—that will likely soon have a new roster of players. It’s the long game on fiscal policy that should be most worrying school leaders.
It’s obvious that American schools need more funding right now. Live instruction costs more during a pandemic, and while so far the economic impact of Covid-19 on schools is not as dire as predicted, we’re not out of the woods yet—by a long shot. And unless you’ve been sleeping since March, you’ve probably noticed how the coronavirus has laid bare various inequities that pervade our education system.
Still, it’s easy to forget we’re living in what’s been a golden era of education spending. Since World War II, the demographic emphasis of public expenditures has been on the young. Whether it’s the GI Bill, many Great Society programs, or school funding propelled by well-organized teachers unions, the K–12 spending curve has been consistently, as the Rolling Stones might say, going up up up up up.
There is a durable myth in the education world that we haven’t gotten much for that spending. That’s wrong. While reasonable people can disagree about specific impacts, overall, we’ve built a more inclusive school system that doesn’t simply overlook a lot of kids. But that debate misses the point—the nation’s demographic focus is changing.
The Census Bureau projects that by 2034, Americans sixty-five and over will outnumber those under eighteen. That’s unprecedented. As my colleague Jennifer O’Neal Schiess explains, state tax dollars pay for a range of services, with the largest proportion in most states going to K–12 public education. As the older population grows, we’ll see more states going the way of Pennsylvania, Massachusetts, Connecticut, and Illinois, all of which spent more on Medicaid than K–12 education in 2018. Most states have a balanced budget requirement, so as health care costs take up a larger share, school budgets will have to shrink unless taxes increase.
The challenge will be especially stark in the Northeast and Midwest. In Pennsylvania, the senior population is growing twenty times faster than the overall population. According to its Independent Fiscal Office, the annual cost of providing senior programs is increasing twice as quickly as the revenue sources that fund them. This will create downward pressure on other categories of spending.
As the population grows older, there will also be considerable challenges with managing retirements costs and pensions, both of which could impact state budgets. In 2018, half of all states experienced growing pension debt, meaning future obligations they have promised but not yet paid for. These higher costs typically mean that states will have less money to fund other public services, including education.
The common assumption around the education world is that there is always more money. And there are some measures to raise funding for schools via various tax schemes on the ballot in states like Arizona and California. How they fare with the electorate will be an important signal about the public appetite for raising taxes to pay for new education spending.
Regardless of what happens at the ballot box, schools will also have to focus on productivity and efficiency in ways that have been uncomfortable in the past. We’ve focused on teacher quantity over teacher quality—in other words, more teachers rather than better paid-ones. The education system also resists differentiation in order to get better results—for instance, increasing the size of math classes while making English classes smaller to accommodate more focus on writing. Constrained resources will force hard conversations about these and other choices.
Those conversations are happening. My Bellwether colleagues, for instance, recently published an entire series about the looming fiscal crisis for education. They’re right to sound the alarm on what’s happening today. But we can’t just focus on the here and now and miss education’s fiscal forest for its most visible trees. As dire as things seem today, it’s just a skirmish in the coming war for resources.
Editor’s note: This was first published by The 74.
When the coronavirus pandemic forced schools nationwide to close their doors abruptly last spring, it imposed similar difficulties onto schools of all types across the country. But responses to those difficulties—restarting academics, maintaining student engagement, conducting academic testing, providing support services, issuing grades, keeping extracurriculars going, etc.—were rarely similar. In short, some schools responded more effectively to the crisis than others.
Several reports,, have already sought to shine a spotlight on schools that made smoother transitions. An excellent new publication from Bellwether Education Partners and Teach For America adds to this growing literature. Analysts compiled case studies of twelve charter and district schools from across the United States that, by their reckoning, produced a high level of success during a difficult time. They find that the particular circumstances in each school and community led to unique needs, varied responses, and numerous versions of success.
Bellwether and TFA examine schools’ and districts’ successes and struggles in eight areas: providing human capital support and adjustments, innovating instructional content and approaches, serving special student populations, big-picture planning and establishing core principles, designing data-intensive approaches, focusing on social-emotional learning, creating supportive school-student connections, and building relationships with families and community.
By and large, the distance learning model that emerged in each of the profiled schools bore a strong resemblance to the model each building was already implementing prior to the pandemic. For example,, Ohio, (which the Fordham Foundation is proud to oversee as its authorizer) already had a strong technology foundation—providing Wi-Fi enabled devices to each student and having an established routine of doing work and submitting it via those devices. Thus the switch to accessing materials and turning in assignments from home required minimal adaptation. in suburban Boise already employed a rigorous and multi-pronged model for teaching its English language (EL) learners. The remote version played out similarly during synchronous learning in large groups, live meetings in smaller groups with an EL specialist, and asynchronous “homework” delivered via teacher-created videos. The major innovation was additional outreach by EL teachers to students’ families to support them not only in language work, but also in other academic areas and in the area of personal well-being. This was felt to be possible only because the existing EL teaching framework had been strong and adaptable before being tested by Covid-19.
Universally, the schools and districts profiled prioritized personal support of students and their families over academics in the initial weeks of closure. While they weren’t able to directly provide all that families needed during the crisis, meeting basic needs loomed large for families, so those efforts took precedence. The examples enumerated are heartening and often ingenious, drawing on pre-existing relationships between schools and community service providers. The return to teaching and learning took many paths, often requiring intensive planning over a couple of weeks. The less “digital” the school had been beforehand, the more new training and software were required for both teachers and students., a charter network in Cleveland, Ohio, spent three weeks sequentially building their plan—and their capacity—for a remote learning model combining synchronous and asynchronous learning in varying percentages based on grade level. The Breakthrough process was goal-oriented, with each goal met leading to the next step. They were required to overcome a among their students to even reach the intended starting line. And even when their remote model was operational, they continued to refine it based on parent and student feedback, which was actively sought by staff members.
Despite all of the positives, Bellwether and TFA are clear in pointing out that not everything worked, and that those things that did work at one school might not do so at others. There is no one answer. In particular, all schools struggled to develop effective strategies for serving students with disabilities, a challenge that predates the pandemic in many schools. With much in the way of grading, testing, and accountability curtailed or suspended across the country, the academic impacts of various remote learning models may not ever be fully knowable.
The education treadmill is endless, it seems, even when the system itself is brought to a crashing halt. These “promising practices,” as the report’s authors term them, are worth exploring in this level of detail, especially as remote and hybrid models of education are likely to remain widely used for the foreseeable future. “The ‘right’ approach to distance learning may well be embedded in these case studies,” they conclude, “but we don’t yet have the data or distance to determine what that approach is.” Instead, they offer this surfeit of information and detail “in the absence of knowing what schools should do.” That sounds about as right a mindset as any as we navigate these times.
SOURCE: Ashley LiBetti, Lynne Graziano, and Jennifer O’Neal Schiess, “,” Bellwether Education Partners (October 2020).
As we conclude a particularly fraught and divisive presidential election, most Americans (and even those of us who live in D.C.) welcome a reprieve from the constant onslaught of negative political ads, contentious debates, and around-the-clock election coverage. Sadly, a new working paper suggests partisan politics may be influencing key decisions about our nation’s schools, too.
In the paper, researchers Michael Hartney and Leslie Finger examined over 10,000 school districts’ responses to Covid-19 to see what major factors are driving school reopening plans this fall, drawing upon a national database provided by MCH Strategic Data. In addition to local Coronavirus levels, measured by “average daily cases rates” per 10,000 residents, researchers compared reopening data with factors such as county-level support for President Trump in 2016, local teachers union strength, and the presence of private school competition.
Appallingly, if unsurprisingly, the analysis finds “little consistent relationship between the acuity of the pandemic and district responses,” and “evidence that politics, far more than science, shaped school district decision-making.” Rather, the two strongest predictors of reopening decisions were 2016 Trump vote share and teachers union strength. Local school boards in Republican-leaning districts were more likely than boards in heavily Democratic districts to reopen schools at the start of the school year, and researchers found that districts with stronger teachers unions were less likely to reopen. To a lesser degree, the study also found increased private school competition increased the likelihood of a return to in-person instruction. And this trend appears to also hold true for higher education: One recent analysis of college reopening plans similarly found politics, and not coronavirus levels, were correlated with reopening decisions.
Thankfully, thus far, Covid-19 cases remain fairly low in elementary schools, and early international studies also have found little relationship between an uptick in cases and a return to classrooms. But cases are rising among children and nationally, and more and more districts are beginning to open their doors, making it increasingly critical that we separate public health decisions from partisanship and politics. Local case rates must factor heavily into reopening decisions, so we can both avoid reopening schools in virus hot spots, and return students to classrooms where local rates remain low.
The stakes are sobering and high. While schools remain closed, millions of children across the nation will continue suffering-academically, physically, and mentally, with disadvantaged students and students of color suffering most.
There’s much our nation can’t seem to agree upon these days, but surely we should all be on board with reopening our schools safely and sensibly.
SOURCE: Michael T. Hartney and Leslie K. Finger, “Politics, Markets, and Pandemics: Public Education’s Response to COVID-19,” Annenberg Institute at Brown University (October 2020).
On this week’s podcast, Charles Barone, VP of K-12 Policy at Democrats for Education Reform, joins Mike Petrilli and David Griffith to discuss what the election means for charter schools, accountability, and other reform issues. On the Research Minute, Amber Northern examines whether students with disabilities are relegated to classrooms with lower-quality teachers.
Amber's Research Minute
Ijun Lai, W. Jesse Wood, Scott A. Imberman, Nathan D. Jones, & Katharine O. Strunk, “Teacher Quality Gaps by Disability and Socioeconomic Status: Evidence From Los Angeles,” Educational Researcher (2020).
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