Daily Development for Tuesday, March 9, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

DD 3/9 Charter Schools in Churches? OK!!

CONSTITUTIONAL LAW; FREEDOM OF RELIGION; ESTABLISHMENT CLAUSE: Where the relationship between a publicly funded school and a church is no different from the normal interface between a landlord and its tenant, the mere operation of a public charter school within a church is not a per se violation of the Establishment Clause.

Porta v. Klagholz, 19 F. Supp.2d 290 (D. N.J. 1998).

The question presented by this case was whether state and local public educational authorities violated the Establishment Clause of the First Amendment of the U.S. Constitution by providing funds for a private charter school in leased church space. The named defendants included the Commissioner of the New Jersey Department of Education, a school district, and the school at issue. A local resident sought a declaratory judgment that "operating a public charter school inside a church is a violation of the First Amendment." In particular, the resident sought a permanent injunction "restraining the defendants from operating or funding, as the case may be, a public charter school including, but not limited to the school[s] in question, inside a church in the future."

The Court made the following findings of fact as to the school: (a) it leased its space for what appeared to be fair market rental value; (b) the church where it operated is a two story rectangular brick building of fairly modern construction; (c) there were no religious symbols such as crosses, stained glass windows or church steeples on the exterior of the building; (d) while there is a sign that contains a prayer at one of the church entrances, this entrance was not used by the school; (e) there were no visible church signs or religious symbols, artwork, or literature within any classroom; (f) the school's charter contained the provision "[A]ll vestiges of religion will be removed to ensure adherence to the First Amendment"; (g) no church functions took place while the school was in session; (h) when it held assemblies in the auditorium, the school covered the religious symbols and sayings there; (i) the curriculum was completely secular; (j) there were no restrictions on the school except that pictures depicting ghosts, devils, vampires, and other creatures relating to the occult must be removed after school hours; and (k) the school could teach subjects relating to the occult and the children could draw such pictures (Halloween was the concern here), but they had to be removed at the end of the school day.

In the Court's opinion, the mere operation of a public school within a church is not a per se violation of the Establishment Clause. The leasing of such space neither advances nor inhibits religion when the school is exclusively secular. The public payment of lease money in an arm's length lease with a church neither finances religious indoctrination nor gives rise to excessive government entanglement with religion. For purposes of the "entanglement" test, the relationship between this school and this church was no different from the normal interface between a landlord and tenant in leased space; money is paid for services received subject to conditions of use articulated in the lease and the course of conduct. The Court then applied the required test to the facts in this particular case and found that the charter school had not violated it.

Comment: The decision appears consistent with Agostini v. Felton, 521 U.S. 203, 138 L.Ed.2d 391, 65 USLW 4524, 119 Ed. Law Rep. 29 (1997), in which the U.S. Supreme Court dissolved an injunction issued pursuant to an earlier Court decision, and permitted the State of New York to fund a program by which publicly funded special education teachers made visits to client children in parochial schools. In light of the new interest nationwide in charter schools, the issue undoubtedly will arise again and again, and this specific precedent, albeit only in a lower federal court, is likely to be of some use.

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