A constitutional right to operate sectarian public charter schools? Considerations of free speech and free exercise of religion in California charter schools.

摘要

With the enactment of comprehensive charter school legislation in 1992 (the "Act"), California may have inadvertently created the judicial platform for further evolution of the legal requirements applicable to religious exercise and freedom of speech in public schools. The potential impact of the Act affects not only public schools in California, but throughout the nation. This dissertation focuses on a narrow provision of the Act which provides a charter school must be nonsectarian in its, "...programs, admissions policies, employment practices and all other operations".; Significant jurisprudence at the federal and state levels has resulted from the contentions regarding religious practice and speech in public schools. Opponents of the validity of the nonsectarian requirements of the Act assert a charter school is a public school but is held to a different legal standard, with respect to religion and speech, than other public schools. The federal and California cases respecting the relevant constitutional religious provisions have been robust during the most recent 50 years and the paths those decisions have followed have not always been uni-directional.; Through the analysis of historic and recent case law at the federal and state levels this dissertation examines the evolving relationship between religious exercise and free speech in the context of a California charter school. The introduction identifies the potential areas of constitutional conflict which may arise under the Act. The following chapter differentiates between constitutionally permissible nonsectarian activity and activity which is proscribed. The third chapter reviews current legal research methodologies. Thereafter data regarding the performance of California charter schools to date is presented. Next, the dissertation examines practices, and the supporting and opposing opinions related to: prayers and religious study, the use of the school for religious activities, student publications containing religious subject matter and contributions to a charter school by a religious entity, which likely to require further judicial review. The dissertation concludes with the author's opinion concerning the likely resolution of these conflicts under current law.