Testing The Charter School Waters

Jewish educational institutions would have to push the periphery of the recently passed charter schools legislation to derive any benefit, but some say it’s inevitable that some organizations or existing schools will try to do so.
“It’s very clear from the direction we’ve had until now that people are going to try and stretch the boundaries,” says Marc Stern, legal counsel for the American Jewish Congress, which supports the charter school legislation because of its strict prohibition of religious involvement. “What remains to be seen is whether it is going to be permitted. We’ll have to wait and see.”
Charter schools, following on the heels of the voucher movement, are the latest salvo in the battle for school choice. Gov. George Pataki persuaded the Legislature during a special session late last year to enact a bill allowing the special schools, and signed it into law Dec. 23. The Republican governor has long championed publicly funded schools run outside the jurisdiction of local boards of education, by groups of parents and administrators, figuring they would force non-performing schools to raise their standards or close their doors.
The charter schools will be free of state and city regulations, except regarding health, safety, civil rights and standardized testing. They may set their own curricula and calendars, as long as they are not open fewer days than the other public schools.
But New York’s law is far more restrictive than those in other states. (Thirty-four states and the District of Columbia have passed charter school legislation.) It allows only for an initial 100 schools throughout the state, each to be approved by the state Board of Regents. Each school must be a newly incorporated entity and have no ties with a religious institution.
Many religious leaders, from black preachers to Orthodox rabbis, envision using the charter system to fund the secular portions of existing schools, thus restricting their operating costs to religious instruction. But the law makes such an arrangement next to impossible.
“If anyone believes that the charter school law that we passed enables them to do an end run around church-state separation, or that this is a back-door voucher program, they couldn’t be more mistaken,” said Assemblyman Steve Sanders (D-Manhattan), chairman of the education committee and an architect of the charter bill.
Sanders was referring to tuition voucher programs, which would provide state funds to parents who opt for a private education for their children rather than a public school. Such a program has been introduced in Wisconsin, where it has survived court challenges on constitutional grounds, and in Ohio, where it is still under court challenge.
One of the staunchest advocates of the charter school bill, the Rev. Floyd Flake of Allen AME Church in Queens, said he will raise the issue of religious discrimination in order to fight the barring of religious schools from the charter school program.
“The Constitution works both ways: You cannot discriminate for or against religion,” said Rev. Flake, a former congressman and a political ally of Pataki. “I think we can expect to have a number of court cases before this is settled. I don’t think they are going to be able to effectively enforce [banning] religious institutions from participating.”
Flake said he would mount an interfaith push to broaden the law. “This is going to be one place to find common ground among various religious groups.”
Caution From Jewish Educators
Jewish education officials are calling for a cautious approach to the new law and a careful study of what opportunities it presents.
“The Jewish community should be paying attention to these developments to see where it can benefit,” said Chaim Lauer, director of the Board of Jewish Education of Greater New York.
But at the same time, BJE is cautioning against trying to stretch the limits of the law. “It behooves all of us to keep on top of the law to see avenues where we fit in,” he said. “Our sense is that any charter school closely identified with a religious institution would be subject to extreme scrutiny.”
Nevertheless, Jewish educators already are viewing the new bill with an eye toward loopholes, particularly in the overcrowded and cash-poor ultra-Orthodox and chasidic yeshivas.
“We will work to overcome the challenges and the obstacles of charter schools,” said Rabbi Yehoshua Balkany, dean of Bais Yakov of Brooklyn, a girls school in Borough Park.
The politically connected Rabbi Balkany, who has raised funds for local and national Republican candidates, said he would be meeting with state officials “to see where we can go from here.”
He pointed to previous constitutional problems that arose from state-sponsored math and reading tutors at religious schools which were successfully addressed. Whereas students were forced to leave religious schools to study in specially equipped vans outside, courts ultimately allowed the public-school teachers to enter the parochial buildings. “It is possible to respect the legislation while at the same time being able to maximize the benefit for our students,” said Rabbi Balkany.
But the biggest hurdle for yeshivas may be the charter law’s anti-discrimination provision. The law mandates that charter schools, like other public schools, admit all qualified applicants regardless of religion.
“To me, the most serious question is how to deal with the non-discrimination issue,” said David Zwiebel, the legal counsel for Agudath Israel of America, which sponsors numerous yeshiva and educational programs nationwide. While the law does allow for the charter of boys-only or girls-only schools, addressing one issue of concern to the ultra-Orthodox, it would make it impossible for a charter school to filter out applicants with the kind of discretion parochial schools enjoy to ensure that their children mingle only with those of the same beliefs and values. The same obstacle applies to the hiring of teachers.
“Even within our own community there are differing philosophies and backgrounds, and some parents may not be comfortable with broadening the educational makeup,” said Zwiebel.
A model for addressing this problem, he said, could be the Kiryas Joel school district established in Monroe County for chasidic children needing special education. Lawyers representing the Satmar community that runs the school are studying whether it can be re-established as a charter school, thus eliminating the constitutional challenges which have plagued the single-school district.
In Kiryas Joel, where students and families overwhelmingly speak Yiddish, there have been no non-Yiddish speaking applicants, he said.
Stern of the American Jewish Congress said such problems, however, would be a disincentive for Jewish parochial schools to attempt to qualify as charter schools.
“The difficulty for most people is that the cost of such programs is loss of control over discipline and enforcement of religious standards,” said Stern. “How they comport themselves and how they dress is much of what lets parochial schools do what they do. They can add the veneer of religion [after school], but most are not really interested in doing only that.”
Rabbi Balkany, however, said that at schools such as his, rising costs made it difficult, if not impossible, to let an opportunity like charter schools pass.
“Any private school that boasts an enrollment of 30 to 60 percent on scholarship looks for every bit of outside help available,” he said.
Another possible impact of charter schools could be diminished enrollment in Jewish day schools and yeshivas as high-quality public schools lure marginally observant parents. Some 34 percent of New York-area Jewish children attended day schools, according to the 1991 demographic study commissioned by UJA-Federation.
But Lauer of the BJE insists that most parents opt for day schools because of the total Jewish experience they provide.
“The day school is not simply a venue for getting a Jewish education or secular education,” he said. “It is an environment in which a total set of ethics and values is provided. When creating a system with secular education in one place and religious at another, you are at best diluting the impact that a day school had.”