Abstract
When first conceived, charter schools were envisioned as local projects initiated by parents and/or groups of teachers seeking to improve the educational performance of students (Budde, 1996). In the past two decades, the phenomenon has expanded to more than 5% of all U.S. public schools and almost 3% of all students (Center for Education Reform [CER], 2009). During this time, groups have come onto the charter school landscape representing points of view that were not a part of the original rhetoric. In the area of charter school creation and management, the originally envisioned groups of parents and teachers have been joined by educational management organizations (Plank, Arsen, & Sykes, 2000) and charter management organizations (Lake, Dusseault, Bowen, Demeritt, & Hill, 2010).
Another of these phenomena are the so-called ethnocentric niche charter schools (Buchanan & Fox, 2003, 2005; Institute on Race and Poverty, 2008) that seek to integrate the celebration of cultural, ethnic, linguistic, or philosophical concepts into the educational process. This chapter provides examples of two types of ethnocentric schools and examines whether they are able to operate within the legal constraints imposed on them by state charter school laws and the First Amendment of the U.S. Constitution (U.S. Federal Government, 1791). We describe the history of litigation and public discussion that accompanies the establishment of ethnocentric niche charter schools and conclude that a new research focus is necessary to evaluate properly this new phenomenon.
The 1983 “Open Letter to the American People” arguably gave rise to the debate that, in 1991, resulted in the first state charter school law in the country. Individual schools were to be given greater flexibility to contribute to “generate reform of our educational system in fundamental ways . . .” (National Commission on Excellence in Education, 1983). So-called charter schools were to receive educational flexibility in return for increased accountability. The state charter school statutes that resulted were remarkably uniform in their language (CER, 2009). An examination of charter school legislation (CER, 2010; Fox, 2005) shows that the majority contain sections titled “Legislative Intent.” Despite important differences in the details, a review of the core provisions of charter school laws across the states frequently reveals language that is very similar (see, e.g., Minnesota Statutes, 2009; New York State Legislature, 2007). It is clear that the strongest motivation was improved student performance. In support of this primary goal, schools were expected to adopt programs that were responsive at the local level as much as possible.
As public schools, charter schools in virtually all states were envisioned as nonsectarian and open admission. The explicit exclusion of sectarian schools from charter status (Larson, 2005; New York State Legislature, 2007) found in the Minnesota and New York examples is a common feature of most state charter school laws. Although schools that are overtly religious in nature have not, to date, sought charter status, the prohibition becomes somewhat hazy when examined in the light of both ethnocentric charter schools and former religious schools that seek to make the transition to charter status (Birnbaum, 2010; Buchanan & Fox, 2003; Hernandez, 2009: Smarick, 2010).
Ethnocentric or culturally oriented niche charter schools have opened around the country (Eckes, Fox, & Buchanan, 2010). A fundamental premise of such schools, although not always explicitly stated, is that “educational resources and opportunities must include integrating [minority students’] language and cultural experiences into the social and intellectual fabric of schools” (Moll, 2010, p. 454). Whether or not this can be accomplished in a way that is permitted without running afoul of church/state separation is at the core of this review.
Although ethnocentric is defined in the dictionary (Merriam-Webster, 2010) as “characterized by or based on the attitude that one’s own group is superior,” the authors are working from a different conceptualization. We associate the term niche charter school with those schools designed to serve the needs of a specific student or parent population. Schools devoted to STEM (Science, Technology, Engineering, and Mathematics) education or Gifted and Talented programs are niche schools. Within this group, we use the term ethnocentric niche charter schools to describe charters specifically established to foster an understanding of, provide instruction from the point of view of, or help preserve a specific culture such as Native Hawaiian, Native American, or East African; ethnicity such as Latino or Somali; or language such as Mandarin, Yu’pik, Towa, or Hawaiian (Fox, Eckes, Buchanan, Belgarde, & Basford, 2010). Some of these are language immersion schools, with all instruction carried out in the subject language. Others are bilingual, with most instruction conducted in English. In the latter, culture is sometimes offered as an elective course as well as existing as a background for all other instruction.
In many cases, efforts to establish such schools have been accompanied by public outcry or litigation questioning whether the separation between church and state in these schools is sufficient to satisfy state charter school laws and the First Amendment of the U.S. Constitution. Certainly, previously sectarian schools that present themselves as evolving into nonsectarian charter schools in the same buildings on the same grounds provoke prima facie questions. Examples include Center City Public Charter Schools (Birnbaum, 2010) in Washington, D.C., which operates six former Catholic schools in the nation’s capital and the proposed conversion of four Catholic schools in Brooklyn, New York (Hernandez, 2009).
In some cases, the close connection between a language and recognized religion has been enough to raise questions. The connections between Arabic and Islam or between Hebrew and Judaism or between the Hawaiian language and Hawaiian creationist beliefs come immediately to mind. More subtle questions arise when one examines the relationship between the cultures in “culturally focused” schools and the extent to which they embrace spirituality and beliefs that come close to those associated with religion. There is little current research into the central question: Do culturally focused niche charter schools violate the principle of separation of church and state? Is it, indeed, possible to provide a public school education that can present a cultural focus without such a violation? We examine the underlying legal concepts behind church–state separation and some of the main legal issues that have evolved. We illustrate our study with descriptions of two ethnocentric niche charter schools and examine the extent to which they have been successful in addressing these issues. Finally, we will suggest areas in which further research would be productive.
A brief review of the First Amendment as it relates to education and of the current state of legal activity on this subject leaves the reader in no doubt as to the country’s commitment to separation of church and state in the educational sphere. Some scholars, however, contend that a strict interpretation of the Establishment Clause as it relates to education is damaging to educational opportunities. For example, Viteritti (2001) argues that educational vouchers to private parochial schools should be more readily available. To support this proposition, he cites the extensive historical relationship between schools and religious institutions and practices and data that indicate that religious education produces citizens that are more tolerant, patriotic, and involved in civics (see also Campbell, 2001).
Even though public school officials generally know that they must not prohibit religion or inculcate religion in schools, there is still much confusion in this area. For example, public school educators may not know if allowing teachers to wear a hijab 1 to school or permitting students to lead a class in prayer is permissible religious expression. Such confusion has led to litigation that could have been avoided. The Court’s analysis in these types of cases is generally centered on the First Amendment of the U.S. Constitution. The First Amendment was incorporated to apply to the states by the Fourteenth Amendment (see Gitlow v. New York, 1925). A minimal understanding of these amendments and the standards applied by federal courts should be achieved both by practitioners seeking to establish ethnocentric niche charter schools and by researchers who study them.
The First Amendment of the U.S. Constitution contains two important clauses, which provide guidance when examining this issue: the Establishment Clause and the Free Exercise Clause. The First Amendment prohibits Congress from making a law “respecting an establishment of religion” or that “prohibits the free exercise [italics added] thereof” (U.S. Federal Government, 1791). For more than two centuries, there has been tension between the Free Exercise Clause and the Establishment Clause. In fact, little agreement exists on the constitutional parameters of the two clauses. The Free Exercise Clause could be interpreted to mean complete freedom to practice one’s religion, whereas the Establishment Clause could be seen as a complete prohibition of religion in government-sponsored settings, such as charter schools (Eckes, 2010; Eckes, Fox, & Buchanan, 2011).
In interpreting Establishment Clause cases, courts have used a few different frameworks or constitutional tests when deciding whether a government action violates the Establishment Clause. The Lemon test asks three questions to determine whether a government action (often in the form of a school policy) violates the Establishment Clause ( Lemon v. Kurtzman, 1971). To pass the Lemon test (which means that a policy is not violating the Establishment Clause), the government action must (a) have a secular purpose, (b) have a primary effect that neither advances nor prohibits religion, and (c) avoid excessive government entanglement with religion (see Eckes et al., 2011).
The U.S. Supreme Court has adopted additional criteria against which to measure permissible educational practice. Under the Endorsement test—a modified version of the Lemon test—school officials may not appear to be endorsing or disapproving of religion ( County of Allegheny v. American Civil Liberties Union, 1989). Under the Coercion test, first adopted by Justice Kennedy in Lee v. Weisman (1992), students must not be directly or indirectly coerced into professing a faith. The Endorsement test appears to be the standard that a majority of the Supreme Court justices apply, but lower courts still consider all of the tests (see Eckes et al., 2011).
If, for instance, an ethnocentric school was challenged because a rabbi ran the school or because there were school-sponsored religious activities that occur during the school day, the courts could be expected to apply one or more of these tests to determine whether the charter school policy was violating the Establishment Clause. To be sure, uncertainty over which test will be applied has caused confusion as the courts apply none of the tests in a consistent way (Boyko, 2009). In fact, one federal court described the Supreme Court’s Establishment Clause jurisprudence as “rife with confusion” ( Freiler v. Tangipahoa Parish Board of Education, 1999, p. 343).
In addition to these three main tests, some argue that the Neutrality test has been revived. The Neutrality test was used before the establishment of the Lemon test and examines whether a state action favors one religion over another ( Zelman v. Simmons-Harris, 2002). Zelman, which was a case dealing with vouchers, not ethnocentric charter schools, provides the opportunity to examine these “constitutionality tests” in a broader field. By a bare 5:4 majority, the U.S. Supreme Court held that Ohio’s Pilot Project Scholarship Program (a voucher program) did not offend the Establishment Clause. The assertion that state-funded attendance at sectarian schools made these schools agents of the state did not prevail. An indication of the complexity of this issue, however, is the fact that several state constitutions require a more strict separation of church and state than the Establishment Clause. Thus, although the Zelman decision permits vouchers, some states may strike down such plans (e.g., Bush v. Holmes, 2006).
The reader might conclude that recent judicial history is one solely of finding that religious concerns are wholly antithetical to public education. However, when deciding Free Exercise Clause cases, courts require the accommodation of religious conduct, except when a state could show a compelling interest not to do so. Specifically, the Supreme Court has found that if a law or policy unduly burdens the practice of religion without a compelling interest, it is unconstitutional. The U.S. Supreme Court established a constitutional framework in a public school case dealing with the Free Exercise Clause. In Wisconsin v. Yoder (1972), the Court held that a state law requiring Amish students to attend school until the age of 16 years violated their right to exercise their religion freely. The Court reasoned that the Amish were entitled to an exemption under the state law because their claim was rooted in a fundamental religious belief. The state was found not to have a compelling reason to require Amish students to attend school past the eighth grade. The Court reasoned that missing 2 additional years of schooling would not impair the students’ physical or mental health. The free exercise analysis became more complicated in 1990, however, when the Court permitted the rational basis standard to be applied in a free exercise case ( Employment Division v. Smith, 1990). Rational basis, less stringent than a compelling reason, was permitted in this case of a challenge to a neutral law that ended up having a negative effect on religion. As a result, a compelling state interest is no longer needed to justify the government’s action when that action is facially neutral and does not directly burden one’s religion. Groups establish charter schools for a variety of reasons that are only loosely connected to the legislative purposes in the statutes. Often, ethnocentric niche charter schools are founded by adults who seek to “save” a culture or “preserve” a language. An examination of the Mission Statements of such schools is revealing. Among immersion schools, Ka ‘Umeke Ka’eo Public Charter School in Hawai‘i describes itself as being “a place where keiki, together with ‘ohana [family] and community, build their spiritual, physical and intellectual Hawaiian foundation through the Hawaiian language” (Ka ‘Umeke Ka’eo, n.d.). Ayaprun Elitnaurvik Immersion School in Alaska has, as its Mission, the goal to “help strengthen the Yup’ik language and culture, to promote understanding of cultural differences, to enhance one’s own cultural identity and to accept that of others” (Ayaprun Elitnaurvik, n.d.). Yinghua Academy in Minneapolis includes with its academic goals, students’ ability to “Be able to speak, read, and write in Mandarin Chinese . . . and to acquire cultural understanding of China and other countries of the world for a more effective participation as global citizens” (http://yinghuaacademy.org/index.php). Bilingual ethnocentric niche charter schools are much the same. Twin Cities International Elementary (or Middle) School in Minnesota describes itself as being “founded by educational leaders in the East African community that ultimately seek to prepare students for successful and productive lives as United States citizens while allowing them to retain their unique cultural heritage” (http://www.twincitiesinternationalschool.org/). Kanu o ka Aina Public Charter School in Hawai‘i seeks to be a “Hawaiian-focused, bi-lingual public charter school . . .” while maintaining “the commitment of our schools . . . to perpetuate Hawai‘i native language, culture and traditions . . .” (Kanu o ka Aina, n.d.). The Ben Gamla Charter School in Florida seeks, as part of its Mission, “to deliver a first-class academic program that offers a unique bilingual, bi-literate, and bi-cultural curriculum, which prepares students to have an edge in global communication through the study of Hebrew as a second language” (Ben Gamla Charter School, n.d.).
The actualization of goals such as these in the form of public charter schools takes many shapes. We describe below a growing group of East African or Somali culturally focused charter schools in Minnesota and a group of Hawaiian culturally focused charter schools (some of which are language immersion and some of which are bilingual). Hawaiian is considered an indigenous American culture, whereas East African culture in America is the result of immigration. The features that distinguish an ethnocentric niche charter school from other schools are as varied as the schools themselves. In some cases, therefore, our descriptions below are composites constructed from multiple schools in the same group.
Minnesota: The School as a Tool for Acculturation
Nusaybah, a recent immigrant from Somalia, arrives at her new high school, an ethnocentric niche charter school for East African immigrant youth. She wears the traditional hijab and joins a group of her friends, who wear either the hijab or a head scarf. Nusaybah and her friends greet and chat with one another in Somali, whereas the other students around them talk in English. Students move toward the cafeteria, where they will be served breakfast according to halal standards. After attending her science, math, and English classes, Nusaybah uses her break to pray in the school’s prayer room, whereas the other students stay in their classroom to study or chat.
In this portrait taken from a qualitative case study conducted at an East African charter high school in Minnesota during the 2005–2006 and 2006–2007 academic years, Basford (2010) found that Kalsami 2 Charter High School promoted positive socialization where students were able to build a good self-concept and find comfort in who they are as East African immigrants and as Muslims while they also established their identity as American citizens. By attending a school that was supportive of, and sensitive to, students’ cultural and religious practices and where students shared a common identity, youth were able to maintain their faith and moral values and their ties to their family and community and develop confidence in their abilities to become full and equal members of U.S. society. Aligning with Portes and Rumbaut’s (1996) theory of selective acculturation, the school appeared to serve as a kind of buffer between the values, beliefs, and practices of their culture and the often overwhelming process of trying to fit in with the dominant society. This buffer served to slow the pressure on youth to assimilate rapidly into the more dominant culture of mainstream schools. Youth came to feel confident and secure in adopting flexible identities and better able to challenge and assert themselves in U.S. society.
At the time of the study (2005–2007), Kalsami had a 98% East African (Somali) student population, a Somali-led school board, a Somali coadministrator, and several East African–born teachers and educational assistants. Its mission statement declares that it is open to all students but is designed to meet the unique needs of international students and their families in a culturally sensitive environment.
Since the 1980s, an increasing number of East African Muslim immigrants have resettled in the United States. In Minnesota alone, the number has reached approximately 50,000. 3 This is the largest Somali population in the country. East African youth face many barriers in the resettlement process, with school adjustment being one of their greatest challenges (Berns McGown, 1999). Schools are thought to be places where White, Christian culture dominates and where expression and practice of nondominant religions, such as Islam, are often resisted. For Muslim adolescent newcomers, schools become key sites of cultural and religious tensions (Sarroub, 2005; Zine, 2000). These tensions are particularly acute because their family and community often espouse beliefs that are in direct conflict with U.S. adolescent mores (e.g., beliefs about dating, entertainment, and dress). In response to these tensions and in an effort to maintain their religious and ethnic identity, Muslim immigrant communities have begun to create ethnocentric niche charter schools that give attention to youths’ culture, language, and history.
The first charter school legislation was established in Minnesota. Today, more than 30 of the state’s 138 charter schools are ethnocentric in orientation (Rimer, 2009). For an increasing number of minority populations, what makes these ethnocentric schools appealing is that, unlike public schools, charter schools can be created by almost anyone and are specifically chosen by the families of children who attend (Finn, Manno, & Vanourek, 2000). These communities can therefore create schools that better accommodate their cultural values and beliefs and, they might hope, accommodate their religious practices as well. This is especially appealing to communities such as the Somalis, who may be uncomfortable with the culture or curriculum of most public schools. Although these charter schools, by law, cannot offer religion classes or overt religious instruction, ethnocentric niche charter schools can offer an “Islamic” environment by virtue of the students they serve.
Whether it is possible for an ethnocentric niche charter school to offer a specific cultural environment without overt religious instruction has come under controversy in a number of communities in a least three states. Occasionally, the public rhetoric moves into the courts. It must be noted that these publicly stated concerns span a broad range of ethnocentric niche schools, including Muslim, Hebrew, and Catholic, among others. Each case is unique. The litigation that has resulted from the establishment of Tarek Ibn Ziyad Academy (TiZA) in Minnesota is often cited as an example. TiZA, a charter school that describes itself as a place that “seeks to provide students with a learning environment that recognizes and appreciates the traditions, histories, civilizations and accomplishments of Africa, Asia and the Middle East” (http://www.tizacademy.com/), has been at the forefront of this controversy. Katherine Kersten (2008), a Minneapolis Star Tribune news reporter, conducted an investigation of TiZA and accused the school of organizing and promoting prayer. Using a substitute teacher as a primary source, Kersten reported that TiZA staff members were involved in organizing the Friday prayers, that students were led to prayer by teachers, and that school buses left the school only after an after-school Islamic Studies class had finished. In addition to these accusations, Kersten suggested other characteristics revealed that TiZA was a religious school: She pointed out that the school’s executive director was a Muslim imam (religious leader), that the school was sponsored by an organization called Islamic Relief, and that the school shared its headquarters with the Muslim American Society of Minnesota, which houses a mosque. She also questioned whether 5- to 11-year-olds could reasonably be believed to organize their own prayer sessions without adult help and was concerned about the ritual foot washing of youth before prayer. The school has also been accused of posting religious displays in classrooms and hallways ( American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy, 2009b).
After Kersten’s (2008) report, which generated attention nationwide, the ACLU (American Civil Liberties Union) filed the first of several lawsuits ( ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2009a, 2009b, 2009c) alleging that the school blurred the line between religion and public education (Chang, 2009). Part of this lawsuit is still in process. TiZA has filed counterclaims against the ACLU claiming that the school is being sued for the “Muslim-ness of its students” (Carlyle, 2010). TiZA’s counterclaims have been dismissed ( ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2009d, 2010e). The Minnesota Department of Education also launched an investigation but eventually found that the school, although violating some lesser statutes involving seat time and busing, was not teaching Islam to students (Birkey, 2008). TiZA contends also that it has corrected several of the alleged entanglement issues ( ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2009b).
Not unlike the attention surrounding the “Ground Zero mosque” in New York City, national attention over TiZA has been tumultuous. TiZA claims it received threatening telephone calls and e-mail messages and requested that the Federal Bureau of Investigation investigate these threats as possible hate crimes (Furst & Lemagie, 2009). Not surprisingly, other ethnocentric niche schools serving Muslim youth have been on edge.
Amid this negative media attention, positive reports have also been published about ethnocentric niche schools serving Muslim youth in Minnesota. The New York Times reported that these kinds of charter schools are offering East African refugee parents a stronger voice in their children’s education (Rimer, 2009). Parents see these charter schools as “safe havens” from mainstream schools, a place where youth are protected from rapid and sometimes negative assimilation. The article highlighted that ethnocentric niche schools allow students to maintain a dual American and Somali identity. Basford (2010) revealed findings at Kalsami High School that were similar to those of Rimer (2009).
Unlike TiZA, Kalsami has been able to conduct its business without becoming the target of litigation. Like TiZA and several of the other East African ethnocentric niche schools in the area, Kalsami offers what it characterizes as religious accommodations such as halal meals, gender-segregated gym and health classes, prayer times and facilities, and Arabic as the school’s foreign language. Although most female students wore the hijab and nearly all students prayed during the school day (when not engaged in school activities or instruction), school administrators and teachers (in deference to its status as a public school) avoided an officially mandated dress code, and took care not to organize or encourage prayer exercises overtly. Unlike TiZA’s curricular focus on the traditions, histories, civilizations, and accomplishments of Africa, Asia, and the Middle East, Kalsami’s curricular focus did not reflect students’ cultural and religious heritage. This was left to the ethos or the ambiance of the school. Instead, like many mainstream schools, Kalsami had a traditional core curriculum. Teachers made it clear that the curriculum (at Kalsami)
isn’t about the kids . . . Their culture, religion and language is acknowledged during lunch, the hallways, the conversations . . . It’s about having friends who are like you, whose parents understand where your parents come from, not about what we’re teaching. (Basford, 2010, p. 11)
Although not to the same degree as TiZA, Kalsami has also experienced moments of religious scrutiny. Basford (2010) reported that an instructor from a nearby university, who was involved with an academic program at Kalsami, raised concerns about how some of the students chose to pray in the classroom during their lunch break and whether the practice was “legal in schools.” Additionally, she revealed that some students expressed frustration that the environment of Kalsami could, at times, feel overly protective and restrictive. For example, some female students resented the unwritten school dress code and revealed significant peer pressure to wear the hijab at Kalsami—a reverse of their experience in mainstream schools, where they felt pressure not to wear the hijab. Another student described his frustration with an East African staff member after he was told not to sit next to a girl at lunch during Ramadan. He was especially upset with the reason he was given, recalling, “They told me not to sit by her because it is against our religion. . . . I don’t believe our religion says that” (p. 17). These comments reveal a messiness surrounding how school policies specifically adhere to religious observances. These concerns are similar to those expressed in the ongoing litigation surrounding TiZA and are unlikely to be resolved until the court determines the permissible dividing line in cases where culture and religion appear entwined.
However, research reveals some of the community motivations for establishing ethnocentric niche charter schools. Basford (2010) found that although some White, American-born faculty viewed the protective nature of Kalsami to be at times unrepresentative of life in the United States, these same staff, who had also worked in mainstream schools, felt that Kalsami was a far safer environment for kids than the environment of mainstream schools. Students also reported that Kalsami offered them a kind of protection from the negative influences that surrounded them in mainstream schools. Some youth reported that attending Kalsami gave them a “second chance” to shed their previous images as oppositional and low-performing students and take on new images as “leaders,” “role models,” and scholars (p. 18). Many of these youth attributed their success to Kalsami’s “strict” and watchful environment, a high expectation ethos, and an authentic acceptance of their religion and culture. Other ethnocentric niche charter schools serving East African Muslim youth are making similar claims. For example, the Dugsi Academy (n.d.), almost exclusively serving East African elementary students in the Twin Cities, maintains that their school provides a “safer environment” for parents to support their children and provides youth with a learning environment that “celebrates” students’ cultural background while promoting high academic expectations.
With growing numbers of immigrant and refugee youth, public schools are faced with enormous challenges of educating all students while demonstrating necessary ways to accommodate their cultural, religious, and racial identities. Maintaining a delicate balance is difficult, and it remains for the courts to identify the fulcrum. In the meantime, many East African Muslim communities are deciding that ethnocentric niche charter schools may be better able to meet their children’s needs.
Hawai‘i: An Example of a Complicated Landscape
On the lawn, 109 public school students stand in parallel lines facing the school ready to begin an entry protocol while their teachers and administrators form a line in front of the main door facing the students. Students request permission to enter and within the protocol offer a pule, a Hawaiian prayer, asking the gods to help them be true to Hawaiian values. Their teachers respond by giving them permission to enter (Buchanan & Fox, 2003). Is this a cultural practice or a violation of the U.S. Constitution’s Establishment Clause?
In Hawai‘i, any discussion of the relationship between culture and religion must start with the State Constitution, which in 1978 was amended to include three important rights for Hawaiian Natives (Constitution of the State of Hawai‘i, 1978a, 1978b, 1978c):
Education, Article X, Section 4
The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program. [Add Const Con 1978 and election Nov 7, 1978]
Tradition, Article XXII, Section 7
The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes [italics added] and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. [Add Const Con 1978 and election Nov 7, 1978]
Language, Article XV, Section 4
English and Hawaiian shall be the official languages of Hawaii, except that Hawaiian shall be required for public acts and transactions only as provided by law. [Add Const Con 1978 and election Nov 7, 1978]
Even before Hawai‘i passed its charter school legislation, these 1978 amendments to the State Constitution led to the establishment of a Hawaiian Language program, Ka Papahana Kaiapuni Hawai‘i, within the Hawai‘i State Department of Education, which may be considered the first public school choice option for Hawaiian parents and students in the only single-school district state in the country. Today, there are Ka Papahana Kaiapuni Hawai‘i programs housed in 15 Department of Education traditional schools and 7 charter schools (Office of Curriculum, 2005). In some respects, they were the precursors of the ethnocentric niche charter schools that emerged two decades later.
In 2000, state legislation enabled the establishment of start-up charter and conversion charter schools in Hawai‘i. This made it possible for Native Hawaiian communities to expand opportunities for Hawaiian education by creating ethnocentric niche charter schools designed for Native Hawaiian students and operated by Native Hawaiians. Two kinds of such ethnocentric niche charter schools emerged: those based on culturally driven values within a bilingual framework and immersion schools conducted wholly or mostly in Hawaiian. For example, one Hawaiian culturally focused bilingual charter school announces that it
promotes the progress of Hawai‘i’s Indigenous people through quality culturally-driven programs that serve thousands of learners from preschool to adult. All . . . programs are grounded in a values-based Pedagogy of Aloha, which is at once ancient and modern, and perpetuates Hawai‘i’s native language and rich cultural traditions while preparing graduates to take on their responsibilities as educated 21st century Hawaiians. (Kanu o ka Aina Learning Ohana, n.d.)
In contrast, the goals of the Hawaiian language immersion programs are
to develop, enhance and maintain the Hawaiian language through education in the home and school. The purpose of academics and global learning i.e., foreign languages such as English and Japanese, is to develop skills to be applied in the revitalization of the Hawaiian speaking community through economic interaction with the outside world. (Ke Kula Mauli Ola Hawai‘i ‘O Nawahiokalani’opu’u [Living Hawaiian Life-Force School]; http://www.nawahi.org/)
With relatively few exceptions (Conklin, 2005), both the Hawaiian language Immersion and the Hawaiian culture–focused ethnocentric niche charter schools have been viewed positively in Hawai‘i. Public ethos in Hawai‘i tends to support native claims for redress for the 1893 overthrow of the Hawaiian monarchy (Lajeunesse, 2010; Shimogawa, 2010), and, as a result, neither public outcry nor litigation has resulted. For example, the Office of Hawaiian Affairs reported the following with approval:
Among the state’s 14 Hawaiian-culture focused or immersion charter schools, Hālau Kū Māna (a bilingual ethnocentric niche charter school on Oahu) melds a conventional curriculum with hands-on outdoor learning, Hawaiian language, culture and values like mālama ‘āina and aloha ‘āina to foster learners who think about the community as well as academics. Besides having a campus in Makiki, students spend time in the lo‘i, at He‘eia fishpond, or aboard Kanehunamoku, the school’s double-hulled canoe. (Asato, 2008)
The local press coverage has been positive about Hawaiian-focused charter schools (Pang, 2006; Wood, 2008–2009). Therefore, the scrutiny to which many ethnocentric niche charter schools have been subjected (Furst & Lemagie, 2009; Goodnough, 2007; Luxner, 2007; Walz, 2009) has been largely absent.
But the connection between charter schools and ethnicity in Hawai‘i is even more complex because of significant annual changes in the charter school law. We have elsewhere described Hawai‘i charter school law as a “moving target” (Fox & Buchanan, 2006). In 2002, charter school legislation made it possible for a traditional public school to choose to partner with nonprofit organizations to convert Department of Education public schools into public charter schools. Unlike the start-up charter schools that are governed by local school boards (LSBs), these conversion schools (called 21st-Century Conversion Charter Schools at the time of their introduction to distinguish them from start-ups and “regular” conversion charter schools) are to be governed by the board of directors of the parent nonprofit organization, not the LSB. Arguably, the fiscal and organizational restrictions placed on aspiring nonprofit partners suggested that the legislature had a single entity in mind.
Kamehameha Schools is privately funded by Kamehameha Schools Bishop Estate (KSBE), Inc., and has, since 1887, operated a campus on the island of Oahu that was open to an academically select student body that could claim Hawaiian ancestry. Before the current economic slump, its endowment was estimated to exceed $9 billion (Yoshida, 2008). Despite the special programs, public and private, designed to promote the use of the Hawaiian language, perpetuate the Hawaiian culture, and improve academic achievement, Native Hawaiian students have continued to demonstrate below-average academic achievement, above-average number of students placed in special education, and high dropout rates from traditional public schools in Hawai‘i (Kanaiaupuni & Ishibashi, 2003).
According to the Ke Ali’i Bernice Pauahi Paki Bishop (1831–1884): Will and Codicils, which funds KSBE,
I desire my trustees to provide first and chiefly a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women; and I desire instruction in the higher branches to be subsidiary to the foregoing objects . . . I also direct that the teachers of said schools shall forever be persons of the Protestant religion, but I do not intend that the choice should be restricted to persons of any particular sect of Protestants [italics added]. (Kamehameha Schools, 2008)
Until the publication of “Broken Trust: Greed, Mismanagement & Political Manipulation at America’s Largest Charitable Trust” (King & Roth, 2006), neither KSBE’s ethnically selective admission process nor its mild religious emphasis created much controversy concerning what was, after all, a private school whose mission was the education of Hawai‘i’s indigenous people. The years since that publication, however, have seen major challenges in both courts of law and the court of public opinion (see, e.g., Doe v. Kamehameha Schools, 2006).
Immediately after the 2002 legislation passed, Kamehameha Schools created the Ho‘okāko‘o Corporation, a private, non-profit organization,
to help conversion charter schools reinvent themselves for the purpose of improving the academic achievement and personal growth of their students. We collaborate with communities, educators, and families to provide conversion charter schools with expertise and resources to improve student success. (http://www.hookakoo.org/)
A year later, a new department, Ho‘olako Like, was created by KSBE “to support start-up and conversion Hawaiian focused charter schools. In addition to per-pupil funds, participating schools receive services from Kamehameha such as administrative and education board training, assistance with curriculum, program evaluation, teacher professional development, and accreditation” (Kamehameha Schools, 2010).
More recently and arguably in response to the appearance of ethnocentric niche charter schools on the Hawaiian scene, KSBE has added outreach programs on several islands designed to provide educational opportunities for a less academically restrictive sample of Hawaiian/Part Hawaiian students. They have also opened preschools located in areas with high concentrations of Native Hawaiian/Part Hawaiian students throughout the state. According to the KSBE vision and mission, the school is designed to “assist people of Hawaiian ancestry to achieve their highest potential as good and industrious men and women . . . grounded in spiritual and Christian values” (Kamehameha Schools, 2009) The schools and programs are designed to remedy the history of ethnic bias in Hawai‘i schools that was thought to favor Japanese and Western educational traditions.
Both state and federal statutes place severe limitations on the ability of a publicly funded charter school to discriminate in any fashion. Therefore, the actual extent to which the student body of any Hawai‘i public charter school can be considered “Hawaiian” is limited to its location. Schools located in ethnically identifiable neighborhoods tend to draw from the locality, particularly in regions with limited public transportation. It is also limited by parental selection.
Not surprisingly, an emphasis on Hawaiian language and culture is disproportionately of interest to ethnically Hawaiian families. Of the 8,488 students in charter schools in the 2009 school year, 3,792 attended culture-focused, language immersion, or Kamehameha conversion charter schools, which accounts for 45% (Charter School Administrative Office, 2009). The actual number of Native Hawaiian/Part Hawaiian students at each Hawaiian charter school varies from a low of 50% at one conversion charter school to a high of 97% at a startup charter school in an area where the local public school reports 85% Hawaiian/Part Hawaiian students. Although these ethnocentric Hawaiian schools may appear to violate civil rights laws and may also appear to violate the First Amendment, there have been no challenges to the cultural practices used in Hawaiian charter schools.
Currently there are 31 charter schools in Hawai‘i. Of these, 17 are based on the Hawaiian culture. Of those 17 schools, 3 are conversion charter schools partnered with KSBE through Ho’okako’o Corporation, 7 are Hawaiian Language Immersion schools, and 7 are Hawaiian culture-focused, bilingual schools. Preliminary studies of student achievement in academic and nonacademic areas are promising (see Kamehameha Schools Research & Evaluation Division, 2008).
Programs within these ethnocentric culture-based schools have focused on improving educational opportunities for Native Hawaiian/Part Hawaiian students, reconnecting them with their Hawaiian roots, and perpetuating the Hawaiian culture and language. Each Native Hawaiian charter school is situated in a distinct community within what would have traditionally been considered an ahupua’a (the traditional Hawaiian division of land that extends from the sea to the top of a mountain in roughly triangular shaped lots; Alternative Hawaii, 2002). All have adopted protocols and pule (prayer) based on traditions passed by Hawaiians orally from generation to generation in the form of chants. One of the most authoritative sources of Ka Mo’olelo Hawai‘i (Hawaiian traditions) was Davida Malo who transcribed the oral traditions from the chants to the Hawaiian language in the mid 1840s and later translated them into English (Malo, 1987). In addition, Gutmanis (1983) detailed Na Pule Kahiko (ancient Hawaiian prayers), making them accessible to modern Hawaiians. Prayers are often contained within a protocol and call on the gods of Hawai‘i, described as “the chiefly flock of spirits” that can be found in nature and heaven (Gutmanis, 1983, p. 3).
As noted, a typical school day at many Hawaiian niche charter schools begins with students outside the school building often shoulder to shoulder in roughly parallel lines facing their teachers or school director and requesting entry by chanting a protocol in unison. The question is one of whether the protocol is a recitation or a Hawaiian prayer.
Protocol used by Hawaiian ethnocentric charter schools is designed to
focus students’ attention on the school,
demonstrate respect for the school and teachers,
prepare students seriously to engage in the work ahead,
socially unify the students,
create a mood that transports students from the mundane to a higher purpose, and
“expresses and confirms a living and vital Hawaiian culture, making each person a bit more appreciative of and more connected to these islands that we call home” (Ohukaniohia Gon, 2009)
In most of the Hawai‘i charter schools, adults are addressed as Aunty or Uncle as terms of respect. Students are frequently reminded to respect each other. In the Hawaiian language–medium schools, English is not officially used or formally taught until the fifth grade.
Each charter school in Hawai‘i must meet the same No Child Left Behind Act of 2001 standards as the regular public schools. One major issue has been the Highly Qualified Teacher requirement. The Hawaiian charter schools place great value on kupuna, grandparents/ancients, to teach traditional values. Currently at least one culture-focused charter schools has no Hawaiian-qualified teacher on staff despite the fact that there are teacher preparation programs for Hawaiian Language and indigenous education.
The Law and Ethnocentric Niche Charter Schools
The Minnesota and Hawai‘i descriptions above raise a few legal concerns with regard to prayer, religious displays, the curriculum, and the use of public school buildings. There is also the larger issue of government aid to public schools perceived to be religious. Court decisions provide guidance as to the amount of religion acceptable in public schools.
Recent cases that can inform ethnocentric niche charter schools have involved the right to wear a religious head scarf in a public school ( Isaacs v. Board of Education of Howard County, 1999) or the right to have school sponsored prayer at graduation ( Adler v. Duval County School Board, 2000), among other issues. The extent to which government money can be used to support sectarian activities in public schools has also been raised (e.g., Agostini v. Felton, 1997; Zelman v. Simmons-Harris, 2002).
The descriptions in our examples suggest that students are praying at the schools described. In Minnesota, it was alleged that at the TiZA charter school students were “led to prayer by teachers.” In Hawai‘i, “students ask permission to enter . . . asking the gods to help them be true to Hawaiian values. Their teachers respond by giving them permission to enter.” Courts prohibit school-sponsored prayer but permit student-led and student-initiated prayer under certain circumstances. In the TiZA description, these teacher-led prayers, as described, would likely be considered school sponsored and in violation of the First Amendment. Although Hawai‘i’s situation is more complex as a result of the 1978 amendments to the State Constitution, the pule that are recited in some Native Hawaiian charter schools raise similar concerns.
Several U.S. Supreme Court decisions give guidance to public—including charter schools—about prayer. In 1962, the Court held that students cannot be compelled to recite a nondenominational prayer in a public school ( Engel v. Vitale, 1962). In 1992, the Court prohibited a school district from inviting a clergy member to lead a nonsectarian prayer at a public school graduation ( Lee v. Weisman, 1992). It reasoned that the principal’s role in choosing the clergy member and offering him guidelines for the prayer resulted in an impermissible school sponsorship of the religious activity. Prayer at a public high school football game was struck down on similar grounds 8 years later in Santa Fe Independent School District v. Doe (2000). These three Supreme Court decisions illustrate that any type of perceived school-sponsored prayer is unconstitutional (see Eckes, 2010). The fact that charter school teachers in Minnesota and Hawai‘i are involved in such prayer raises legal concerns.
In 2003, the U.S. Department of Education issued guidelines to help school districts determine when religious activities are constitutionally permissible in public schools:
When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies. (U.S. Department of Education, 2003, p. 1)
For some of the same reasons discussed above, school officials must not endorse any type of prayer during moments of silence. In Wallace v. Jaffree (1985), the Supreme Court examined an Alabama law that required a moment of silence for “meditation or voluntary prayer” in public schools. The words or voluntary prayer were inserted into the existing law in 1981. The justices reasoned that the state was using this insertion to convey its approval of prayer in public schools and struck it down. The law in this area is clear that officials at ethnocentric charter schools must not lead or endorse prayer at their schools. School officials may not be involved in such activities, as it would imply that the prayer is school sponsored.
In the ACLU of Minnesota case against the TiZA, the ACLU alleges that the charter school has religious prayers posted in the school’s entryway and has other religious displays in some classrooms. Courts have not permitted religious displays in public schools if they promote or endorse religion and appear to be school sponsored. For example, courts have struck down laws requiring that school districts display the Ten Commandments ( Stone v. Graham, 1980) and pictures of religious figures in public schools ( Washegesic v. Bloomingdale Public Schools, 1994). Thus, it would be problematic for a charter school to display an explicitly religious symbol that favors one religion over another, such as a menorah or a manger scene (e.g., County of Allegheny v. American Civil Liberties Union, 1989; Lynch v. Donnelly, 1994).
Questions about curriculum and its relation to religion at ethnocentric charter schools have been subject to scrutiny (Associated Press, 2007). The Kalsami Charter School, for example, stressed that the school uses a traditional core curriculum. Although the curriculum focused on the traditions and histories of Africa, Asia, and the Middle East, school leaders contend that the curriculum does not reflect students’ religious heritage. The ACLU’s allegations against TiZA, however, raise concerns about religious teachings in public schools. Under the law, public schools may teach about religion but may not teach religion. For example, the Bible or Koran could be used to teach about religion (from a historical, cultural, or philosophical perspective) but not to promote religion. The law is clear that a school may not promote one religion over another (First Amendment Center, 2002). To illustrate, in a Fifth Circuit case, the court did not permit the Bible to be taught in a literature course because it was taught in a way that promoted Christianity ( Hall v. Board of School Commissioners of Conecuh County, 1981).
Issues regarding the curriculum have been in the spotlight in other states as well. Most recently, in Nampa Classical Academy v. Goesling (2009), a lawsuit was filed by a charter school in Boise, Idaho, after the Idaho Public School Commission forbade the use of various religious texts at the school. A Hebrew immersion charter school in New Brunswick, New Jersey, has faced scrutiny after one rabbi in New Brunswick stated that “the Hebrew language has a religious element” and “one should be learning Hebrew in the context of its integral relationship to Judaism” (Lee, 2010, p. 2). A member of the school’s board of trustees said that “whether religious elements filter into the classroom doesn’t worry [her]—she’s more concerned with full-day kindergarten and smaller class sizes” (Lee, 2010, p. 2). Likewise, a pastor involved in a New York charter school stated that “while no component of the curriculum is explicitly religious, his faith informs his values of community and respect” (Resmovits, 2010, p. 2). The Associated Press (2007) reported that Ben Gamla Charter School in Florida was ordered by state officials to stop their Hebrew classes temporarily until it was determined whether teachers were advocating Judaism.
Under the Equal Access Act, although teachers are permitted to be present at noncurricular club meetings during noninstructional times, their role is only supervisory. If a teacher became too involved in leading a religion-based student group, the provisions of the Equal Access Act could raise Establishment Clause concerns that the role is school sponsored. Kersten (2008) reported that on a Friday, the Muslim holy day, the majority of the students assembled in the gym to pray after lunch. Although the prayer was not led by a teacher, it was done by the same individual who leads an Islamic studies group after school. Thus, if the allegations are true that school staff is perceived to lead religious activities during noncurricular times, church–state entanglement issues arise. The charter school would be best advised to have no school sponsorship of prayer time during noninstructional hours during the school day.
Release time programs permit students to leave their public school for religious instruction during the school day. In an early Supreme Court decision, the Court struck down an LSB’s policy that permitted religious instruction on public school grounds ( McCollum v. Board of Education, 1948). The school permitted privately paid religious teachers to provide religious instruction on school grounds. The Court found this to be in violation of the Establishment Clause because a tax-supported school system was used for religious doctrine. The Court upheld a release time policy in Zorach v. Clauson (1952). In this case, the Supreme Court upheld a New York law that permitted release of students at the parent’s request to attend religious instruction at an off-campus location. Based on Zorach, religious observance during the school day is possible if it occurs off school grounds and without the involvement of school officials (see Eckes, 2010).
Kersten (2008) argues that TiZA is a religious school. She notes that the school’s executive director is a Muslim Imam, the school is sponsored by an organization called Islamic Relief, and it is housed in the Muslim American Society of Minnesota, which also houses a mosque. The ACLU believes that TiZA’s campuses are owned by religious institutions and that the space it leases from a Muslim organization is an unconstitutional transfer of funds to a religious institution ( ACLU of Minnesota v. Tarek ibn Ziyad Academy, 2009c). TiZA is not the only charter school to receive complaints about establishing a sectarian atmosphere. It was reported that a male student was told not to sit next to a female student at lunch during Ramadan at the Kalsami Charter School. Also, some female students there feel pressure to wear the hijab. In Hawai‘i it was reported that the private Kamehameha Schools created a nonprofit organization to assist with conversion charter schools. The original funds, through the will and codicils for the private Kamehameha schools, were directed to teachers of the Protestant religion. Although the funding of conversion charter schools through the Kamehameha nonprofit may raise legal concerns, there have not been any challenges focused on religious entanglement.
The Supreme Court has not been entirely consistent in its decisions involving government aid to religious schools. In 1947, the Court upheld a New Jersey law that reimbursed parents the bus money they spent transporting their children to parochial schools ( Everson v. Board of Education of Ewing, 1947). The Court reasoned that the New Jersey law allowed all students, regardless of their religion, to be transported to the school of their choice. However, in Aguilar v. Felton (1985), the Supreme Court held that public funds used to pay the salaries of public employees who taught in parochial schools represented an excessive entanglement of church and state. This decision was later overruled in Agostini v. Felton (1997) when the Supreme Court found that government money could be used for the remedial instruction of disadvantaged students attending parochial schools if done on a neutral basis. The Court ruled that there were no Establishment Clause concerns because there was no government religious indoctrination involved.
The cases suggest that the Court has made it more permissible in recent years for government aid to be used in sectarian schools under limited circumstances. Hillman (2008) contends that “this shift has made choice-based direct aid programs, such as funding for religious charter schools, more likely to survive an Establishment Clause challenge” (p. 576). Nevertheless, if a particular charter school fails the Neutrality test or crosses the line from permissive accommodation to impermissible establishment, it will face Establishment Clause concerns.
Conclusions
For some time, the belief that traditional public schools are not meeting the needs of our society has generated considerable discussion. Advocates asserted that charter schools would produce improved student performance at lower cost and with greater satisfaction. Recently, much comment has been made on the inconsistency of current achievement studies, the difficulty of measurement, and the fact that achievement seems to vary according to type of charter school (Center for Research on Education Outcomes, 2009; Henig, 2008; Hill, Angel, & Christensen, 2006). The mixed results of current research into charter school efficacy have done little to silence both charter school advocates and opponents (Lubienski & Weitzel, 2010). Resolution of this issue awaits additional research that with time, one hopes, will include more longitudinal information.
This review has focused on ethnocentric niche charter schools and the specific issues that have arisen along with their growing presence. Some of these schools are founded to preserve cultures and languages that are otherwise threatened, but all of them seek to use culture and language to improve educational opportunities for populations otherwise underserved by traditional public education. The growth of ethnocentric niche charter schools has reraised questions that, for the most part, were answered in the past century (or earlier) for traditional public schools.
To what extent is it possible to separate culture and religion?
Can a publicly funded school focus on one culture without running afoul of its obligation to provide equal opportunity for everyone?
To what extent can schools serve the needs of special interest groups while accepting public funds?
Resorting to the courts for answers to questions such as these produces results that are as diverse and mixed as the “objective” performance data. Applying a variety of “tests” or criteria to a variety of situations, different courts have reached different conclusions. Under our current multilayered judicial system, it is unlikely that we will resolve these issues any time soon. Added to the uncertainty is the fact that issues such as the limitation of religious study in publicly funded schools have assumed such stature that their continued service to society is rarely, if ever, even questioned. We conclude that these questions are public policy questions, the answers to which will most likely be found in political science, public opinion, and philosophical studies. This phenomenon provides an enormous opportunity for emerging educational scholars in the decade to come.