Aaron Saiger on Religion and Charter Schools
Date: March 30th, 2014

Is the charter school movement changing the way we think about religious education in the United States?  Prof. Aaron Saiger of Fordham University Law School discusses this topic from a historical and legal framework, demonstrating how various religious communities have adapted to more market-oriented approaches to public education.

Our conversation begins with a summary of what the K-12 educational landscape looked like circa the 1970s.  This allows Prof. Saiger to lay out the historical origins of what he calls the “Progressive model” of public schooling that originated at the turn of the 20th century.  This educational model was premised on the idea of “common schools,” meaning they were open and free to all, and that they shared a common curriculum designed to craft citizens.  This model developed a design preference for top-down expertise to guide school curriculum.  During the mid-1900s, a variety of court cases such as Engel v Vitale and Abington Township v Schempp injected secularism into this model, leading to the public school/private school dichotomous system that most folks like Tony and Aaron (who grew up in the 1970s) identify with today.

However, beginning in the 1990s, a movement to create charter schools arose to challenge this simple dichotomy.  Aaron details what a charter school is, revealing that while they are funded publicly, the “grassroots” nature of their formation give them a “private school” feel.  Educational entrepreneurs are able to craft a school around a particular curriculum or pedagogy within the limits of some basic regulatory requirements (e.g., students must learn math).  Prof. Saiger notes that many of these charter schools develop niche markets specializing in topics such as maritime studies or horsemanship.  Tony asks how charter schools relate to the school voucher movement that began taking shape a decade or so earlier, and while noting that partisans of vouchers and charters often claim to be very different in nature, Prof. Saiger points out that both movements share the mechanism of giving educational consumers greater choice and variety in how children are educated.

The ability of charter schools to create niche markets for specific educational consumers opens the door for schools with a more religious flavor to arise, challenging the notion of the secular public school.  This is particularly true for communities of religious minorities who often live in close proximity to one another and can use the charter school option to develop a curriculum that they feel best suits their religious and cultural needs.  To this effect, Prof. Saiger asks two important questions.  First, can a charter school be genuinely (overtly) religious?  And second, if the charter school is not overtly religious, how close can it come to that line and still serve the needs of a religious constituency?

We spend the second half of the podcast addressing those two questions.  Aaron notes that no charter school has yet to be overtly religious, largely due to the reluctance of states to do this.  Nonetheless, some religious communities have been able to create charter schools based on cultural and linguistic traditions, such as Hebrew language charter schools that use Jewish history and social science as a means of exposing students to Jewish religious traditions.  These schools do not teach theology per se, but they provide an inexpensive alternative for religious individuals to have their children exposed to the culture and values of their choosing.  There have been similar instances with Islamic (e.g., Arabic language schools) and Christian-flavored charter schools.

This discussion brings up two important Supreme Court cases that have influenced this movement: Zelman v Simmons-Harris, allowing for school vouchers in Cleveland, and Locke v Davey, which allowed states to restrict educational funding for students interested in earning theology degrees.  Prof. Saiger notes that the ambiguity of the charter school system and interpretations from these two cases leaves the door open for the possible chartering of overtly religious schools and speculates on how this might affect our educational system in the future.  He also discusses Justice Stephen Breyer’s dissenting opinion in the Zelman case that a system that allows for more parental choice in education could lead to religious strife in the future.  Aaron provides a more optimistic view about the future than Justice Breyer.  Recorded: March 28, 2014.


Prof. Aaron Saiger’s bio at Fordham Law School.

Religious Consumers and Institutional Change in American Public Schooling: Cases from Jewish Education,” by Aaron Saiger in the Journal of Law, Religion, and State.

Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education,” by Aaron Saiger in the Cardozo Law Review.

The One Best System: A History of American Urban Education, by David Tyack (mentioned in podcast).

The Spirit of the Law: Religious Voices and the Constitution in Modern America, by Sarah Barringer Gordon (an additional resource suggested by Prof. Saiger).


Kevin den Dulk on Religion, Education, and Civic Engagement.

Carmel Chiswick on the Economics of American Judaism.

Hunter Baker on the Future of Higher Education.

Joseph Castleberry on Religious-Based Higher Education.

Rick Walston on Distance Learning and Seminary Education.

Chris Gehrz on the Crisis of Christian Colleges.

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