Understanding Charter Schools and the Constitution

When the Michigan legislature enacted Public Act 362 of 1993-
-the law which sets up the guidelines for new "public school academies" or "charter schools"-it sent a powerful message to both the education establishment and parents desperate for new options. No longer would public schools be shielded from competition, insulated from accountability, and immunized against the choices of their customers.

The legislature clearly intended charter schools to introduce new incentives for improvement within a rigid, bureaucratic, and sometimes unresponsive public school system. In the few months since PA 362 was enacted, these incentives appear to be working: as interest in creating charter schools soars, so has interest on the part of existing public schools to keep students by finding ways to serve them better. That offers hope especially to those who need it most- poor children trapped in failing inner-city schools.

A charter school must obtain recognition from a local school board, an intermediate school district board, a community college board, or one of the boards of Michigan's 15 state universities. Because of their independence from school district bureaucracies and exemption from the Michigan Teacher Tenure Act, charter schools enjoy substantial freedom to design their own innovative educational programs but must employ certified teachers and meet the state's requirements for hours and days of instruction. They must also comply with federal constitutional provisions against the establishment of religion and state constitutional provisions against direct or indirect public aid to nonpublic schools.

Those constitutional provisions are at the center of a controversy involving the Noah Webster Academy. Headquartered in Ionia County and serving nearly 2,000 students in its first year, this "charter school without walls" is a unique, high-tech, distance learning center that connects home-schoolers around Michigan with a dozen teachers by way of multimedia computers and satellite transmissions. Parents in each home, however, direct their children's education with Noah Webster's help and since many home schooling parents have religious motives, the constitutional questions are not without merit.

Clearly, the Noah Webster Academy pushes the charter school law to its very limits. The Academy cannot use public dollars for the propagation of religion. Its organizers are recommending (but not requiring) strictly secular curricula that do indeed have state sanction in Nebraska and Maryland, and have never proposed reimbursing parents for religious materials. Within its clientele are families representing nonreligious as well as religious beliefs-from Muslim to Jewish to Christian-suggesting that the school is not seeking to advance religion in general or any faith in particular.

There are obvious accountability and monitoring problems with Noah Webster which may be difficult but not impossible to resolve. In any event, observers should regard the Academy for the atypical example that it is. Noah Webster is a very interesting but also very special case that does not invalidate charter schools in general.

Nothing in PA 362 violates the First Amendment's prohibition against a government "establishment" of religion. The act designates charter schools as governmental agencies and acknowledges that such schools perform an essential public purpose and governmental function. The act neither advances nor inhibits religion and indeed, it fully anticipates that no school which does so could qualify for state funding under the Michigan Constitution.

Charter schools are public schools-authorized by and accountable to governmental bodies, possessing governmental immunity, and governed by boards independent of any church or religious organization. A school that meets all the law's requirements does not present a constitutional question about public funding for private schools.

If there is a danger in all this, it is not that public schools under the pressure of competition from charter schools may begin to resemble private ones. A healthy dose of private sector virtues would probably be a good thing for public schools. There is a very real danger, however, that PA 362 will compromise the autonomy of private schools by luring them into the public domain with the promise of public dollars. Indeed, most of the new charter schools that opened this fall were formerly private institutions-willing, apparently, to relinquish a degree of independence in exchange for the "security" of state funding. Education reformers must work to roll back state intrusions and make a persuasive case that the likely success of charter schools argues for even greater freedom for all schools.

Charter schools represent a creative way for government to make necessary changes within its system of public schooling- changes that can foster new opportunities for children as they infuse new incentives for improvement. While taking care to protect the freedom of private education, Michigan should embrace charter schools for the promise they offer as agents of public school change.