ACLU Hopes to Draw “Bright Line” Between Religion & Secular, Charter Schools (by Katie Kubitskey)

April 5, 2012 By 12 Comments

MA student Katie Kubitskey

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

It’s not often that one sees a conservative Christian journalist and a church-state watchdog organization playing for the same team. However, the two joined forces in 2009 to raise a case against the Tarek ibn Ziyad Academy, a public charter school that both parties accused of promoting Islam. The accusation was brought to the public eye in an article in 2008 written by Star Tribune columnist, Katherine Kirsten, and was adopted by the American Civil Liberties Union (ACLU) in 2009. The ACLU officially filed suit against the school for violating both Minnesota and United States Establishment Clauses in their use of public funding for a “religious” school. By pursuing this case, the ACLU hoped to make an example of the Academy by showing where religious accommodation is acceptable and where it is unconstitutional. However, as the case nears a settlement three years later and the school shuts its doors, the line remains blurry at best.

Student at the Tarek ibn Ziyad Academy

Tarek ibn Ziyad Academy (TiZA) was granted a charter by the Minnesota Department of Education and opened its doors in 2003 to the children of Inver Grove Heights, Minnesota, a predominantly Somali population. The Academy’s mission statement reads that the school’s specialized curriculum promotes a learning environment that “recognizes and appreciates the traditions, histories, civilizations and accomplishments of Africa, Asia and the Middle East.” The school holds daily after-school prayer sessions but does not advertise any specific tie with the Islamic faith.

Inhabiting a unique middle ground between the public and the private school systems, charter schools receive public funding but are free from certain governmental regulations that other public schools adhere to. Although required to find a location for the school (without governmental aid) and a reasonable sponsor, charter schools are free to formulate a system that meets only basic public school standards (i.e. the length of school years and graduation requirements). This freedom allows for unique learning environments that can be catered to benefit certain populations as long as the school remains nonsectarian. In compliance with the Minnesota Charter School Law, TiZA established itself as a tenant of a non-for-profit organization, the Muslim American Society of Minnesota, and contracted Islamic Relief USA as its sponsor.

After the 2008 Star Tribune article, Chuck Samuelson of Minnesota’s ACLU chapter began investigating the relationship of TiZA with the Islamic faith, accumulating reasons to believe that the Academy was in violation of the Minnesota statute as well as the Establishment Clause of the U.S. Constitution. With sufficient evidence, the ACLU brought successful accusations against the Academy and won the favor of the District Court of Minnesota (and later, the Court of Appeals). The ACLU successfully convinced the Court that TiZA promoted “religious” favoritism to Islam through these undisputed facts:

1)  TiZA permitted prayers to be posted prominently in the school’s entryway

2)  Prayer sessions were held during school hours

3)  Teacher-sanctioned religious material was posted in classrooms

4)  Parent-led or volunteer-led prayer took place during class-time

5)  Teachers participated in prayer activities

6)  School transportation was only offered after Islamic studies program finished at end of day

In addition to this, the ACLU revealed that TiZA was entangled in personal and corporate relationships with its landlord and its sponsor who, by association, aided in establishing school policies that promoted religion. Therefore, with proof that public tax funds were used to establish a school that promoted religion, the Court agreed that there was a violation of the Minnesota Statute and the Establishment Clause.

TiZA filed numerous counter-arguments against the ACLU throughout the case. While many dealt with very specific details, the most prominent argument stated that their school was not endorsing a certain religious belief but was accommodating the beliefs of the school’s predominantly Muslim population. Furthermore, they argued that this accommodation is protected under the Free Exercise Clause of the First Amendment. Although granted hearing in the Eighth District Court of Appeals (written here in full), TiZA was ultimately unsuccessful in reversing the Court’s judgement. Lacking the ability to find a permissible sponsor, TiZA ended its program in 2010.

An interesting settlement was reached last week between the school’s sponsor (Islamic Relief USA), the Minnesota Board of Education, and the ACLU. The Court concluded that Minnesota charter schools will have to sign an annual disclosure form that insures that they are not promoting religion in their schools. Samuelson, the ACLU’s executive director, is quoted in the article hoping to draw a “bright line” between religion and other charter schools as an example to prevent this sort of unconstitutional activity in the future.

While the revised Minnesota Charter Law will attempt to “brighten” this line between religion and the secular school system (by having schools admit whether or not they are improperly sectarian), this practice will not help to dictate the difference between the accommodation and establishment of religion. Although the closure of the Tarek ibn Ziyad Academy could potentially serve as an intimidating example to other religiously driven charter schools, the laws that foster the formation of such programs are still in place and are still sufficiently vague, leaving the line between religious accommodation and endorsement inevitably blurred.

Katie Kubitskey is a Masters student in Religion at Claremont Graduate University and works with the Claremont School of Theology to pursue a degree in Political Theory and Ethics. She explores the contemporary dialogue surrounding religion and violence in the public sphere.

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  • Drew Baker

    Very interesting post, Katie! You masterfully tease out a lot of the nuances in this case. I’m curious though; what do you think of the case? Do you think the school was unconstitutional? Also, what do you make of the practice of drawing this “bright line” between religion and the secular, public realm (as in education)? How is this similar to the anti-Catholic rhetoric found in previous school funding cases? Was there a similar anti-Muslim bias here?

    Incidentally, this is one of the few cases that I vehemently disagree with the ACLU’s side. If my “affirmative action” approach to religion and law is appropriate at all (and of course I think it is! :) ), it is appropriate in a case like this. I do not think “religion” is naturally toxic in the public sphere, and it is difficult to see any good reason why this charter school was a bad thing, regardless of whether “religion” was part of the education or not.

  • Valentina

    Katie, thank you for this post.
    I’m sure TiZa was and is not the first religiously affiliated school, yet I am surprised they were unsuccessful in keeping their doors open as many other charter schools with a religious undertone still are. I want to ask the white elephant question: is it because it was a predominantly Muslim population of students in an increasing Islamophobic country? Or did the courts really want to set a precedent for all future charter schools to know and adhere to the bright line you mention? Also, I wonder why the school could not do away with all the religious like practices such as the prayers, religious materials etc. Wouldn’t they rather be open and follow the rules required by state, I would think so. But instead they closed their doors. I’m curious if they had the opportunity to stay open of they could modify the religious components? Thank you for this post :)

  • Katie Kubitskey

    All great questions, Drew. Where to begin? Given that the case against the school originated from the Christian journalist, I couldn’t help but think that some of the push behind the case was done for anti-Muslim reasons. However, I also know that similar cases have been taken against Christian-affiliated charter schools as well so I am not that surprised that the ACLU debunked it the way they did. TiZA actually accused the ACLU a couple times of “picking on the helpless Muslims” in their court proceedings so, yes, I had that feeling while doing my research.

    I do not think the school was unconstitutional: in no way can I find an argument for this school’s existence being an “establishment” of religion. I find myself in line with your “affirmative action” feelings and have more worries about the rise of charter schools (and the decline of the public schools) rather than about the allowance of religion in the public realm. Attempting to draw a line between where religion starts and where secular education begins is an extremely problematic (and impossible) practice especially in dealing with non-Christian-based programs such as this one. I still have many questions about how the public school system can address the accommodation of religious traditions and if allowing these charter schools is the best “home” for that kind of work, but your questions have helped me to work through some of that. Thanks!

  • Justin Nelson

    Hope it’s not a problem that I post here–if this is for a class just delete my comment. I’ve also posted this on the facebook thread. What is “affirmative action” in religion? To me the phrase seems to connote the idea of preference for certain religions (minority religions I can only assume). That strikes me as constitutionally problematic, but I don’t want to define someone else’s terminology.

    In general I just want to add that I think charter schools are a very good development in education (as is anything that introduces competition into the market), but they are an imperfect solution to a deeper problem. The problem of religion and education is never going to go away as long as the government has a monopoly on the education system. Education (particularly at the primary/secondary levels) will always involve the preference of one particular view to the exclusion of others. As long as the government controls that system, they will be forced to take an official position. That in itself would not be problematic if it weren’t a coercive system from which there are very few means of escape (particularly for the poor). Unfortunately, while charter schools do a lot of great things (smaller classes and no teachers unions most notably), they are nevertheless state-sponsored institutions. So while I don’t know exactly how the courts draw the line between endorsement and accommodation, I’m inclined to think the ACLU was right here. This would absolutely not be permissible if it were another religion. Any one of those six findings of fact would be considered a constitutional violation in a regular public school or if the religion was Christianity (and most of them have been). Since charters are public schools, and Islam is a religion just like Christianity, I have a hard time seeing how this would be permissible unless we advocate a policy of treating the two religions differently or treating charters differently. Perhaps that is the affirmative action Drew refers to?

    Is there a case you can point me to (or an opinion from this case) that discusses the difference between accommodation and endorsement? I was hoping the circuit court opinion that you linked to here would do that, but that opinion was about the procedural questions of whether the parents of the students could intervene in the case. I assume that there was no opinion on the merits here because there was a settlement, but perhaps the district court issued one?

    I really feel bad for the parents and students here, but as I suggested above, the problem is really the government monopoly that makes it so difficult for religious schools to operate and compete. As long as we have government schools, neutrality is the best policy. If we allow public schools to “accommodate” Islam in this manner, we would have to do the same for all religions, which is why I think the ACLU showed a lot of consistency and foresight here.

  • Mahmoud Harmoush

    Thank you Katie for the post. Knowing how many of the Muslims population think and operate, I think they were unintentionally practicing their duties in helping the students’ parents and doing the good deeds. They probably thinking that charter school gives them that space. Charter school was comfortable in combining the educational objectives of the district and the religious obligations of the students and the parents. However, ACLU , like many other watch-doges, is active on demand, like selected/chosen randomly, to as they put it brighten the line between the clauses. It ends up on my expenses. (as a poor,small minority – with under the microscope faith and unable to defend myself in court). For ACLU, there are reasons to say, we just follow the law and that how it should be. I really think it has a lot to do with the faith, (regardless of which one), and if the people of the charter school more artful, they would have avoided some of the practices and play the game and stay open. Thank you

  • Katie Kubitskey

    Valentina, I definitely think the Court avoided making as influential of a claim as the ACLU may have wanted in this case. Dealing just with “corporate entanglement” between the sponsor, landlord, and the school, they seemed to sidestep defining the boundary between accommodation or establishment. From what I could tell, TiZA had the opportunity to stay open if they found a sponsor (that was not the Islamic Relief USA) and if they could prove a separation from the Muslim American Society of Minnesota. I’ll have to do further research to see what other sponsors the school attempted to acquire!

    And to Justin: Kiryas Joel v. Grumet, if I am remembering correctly, is a great case to read for the accommodation/establishment argument. “Affirmative action” in cases like these refers to an acknowledgement on behalf of the government that a Protestant system has been established and oppression toward other sects (Catholic, Muslim, many minority religions) is embedded in the system. This would be an effort to not necessarily ‘correct’ this (because like you said, that’s a deep problem that isn’t easily corrected), but to allow for the religious accommodation. But you make a good point that I have wrestled with in that this would imply “favoring” certain religious traditions. But possibly, on the other hand, they do deserve to be “favored” in certain situations (using ‘favor’ for the lack of a better term). This would go against neutrality (that I usually argue for) and I am not sure that’s the best route, but this case makes me struggle with that (hence why I think it’s so fascinating). And about linking you to something within this specific case, as far as I know the “accommodation” argument didn’t go very far with the courts- more of the focus was on the fact that they had corporately entangled themselves with religious-affiliated organizations which violated the Minnesota statute law of being “nonsectarian.”

  • Grace Yia-Hei Kao

    This is indeed a most interesting case – one that I wasn’t aware of until this post. The accommodation vs. endorsement question is particularly interesting and, without knowing the details, I can see how your #2 (prayer sessions during school hours) could be seen as either, in light of the common Muslim practice of praying five times daily. I think I am most surprised, however, by your comments to Drew defending the constitutionality of this school in light of previous comments you’ve made in class about your strong separationist leanings, but I appreciate the fact that each case allows us all to evaluate our proclivities.

  • Matt Bussell

    Katie thanks for the post, this is a really interesting case. When reading about I could not help but think back to the Kiryas Joel v. Grumet case. The Minnesota Board of Education obviously did not see the school as establishing a religion when they granted the charter even though the school targeted students of a particular cultural background. What makes the Establishment Clause problematic in educational situations like this is the blurred distinction between religion and culture. Within the United States we are inclined to differentiate culture and religion but what about people whose religion and culture are intertwined? Does this prohibit them from have centers of learning that cater to their cultural heritage?

  • Katie Kubitskey

    Dr. Kao, I thought of you while I was writing the response as I was defending a point of view I usually wouldn’t- kind of an attempt to play devil’s advocate to my own previous concerns. I find this case to be problematic on a lot of levels and leaned toward Drew’s “affirmative action” side because I can’t understand how, in this case, we would draw a line between a minority tradition’s “religion” and “culture” in order to enforce this strict separation. However (referencing back to Justin’s comment), this would lead to a favoring of certain groups and therefore non-neutrality. A difficult case to pick one absolute “side” on, definitely.

  • Kile Jones

    Great post Katie! While I am in agreement with the ACLU on this one, I agree with you that this “line” between secular and religious is often blurry. You highlight the vagueness of some of the laws surrounding this case. I wonder, do you think there could have been good legal reasoning against the ACLU in this case? It seems to me that the ACLU had a closer proximation to the Minnesota Statute and the Establishment Clause. Should the laws be made clearer to avoid vagueness, or should laws have a sufficient amount of hermeneutical flexibility in order to be applied to different contexts and situations? I guess I have two questions for you: 1) Do you think the ACLU had the law “on their side” and 2) Do you think laws surrounding issues of religion should be clearer?

  • Katrina

    Thanks for the post Katie! This is a very interesting case for a variety of reasons. While I also have very separatist leanings towards religion and schools, I also remain sympathetic towards minority religions (and attacks by conservative Christians).

    This case reminded me of the Khalil Gibran International Academy, a middle school in NY (and others like this one), which faced huge opposition when it opened as the first English-Arabic public school in the US. This school’s curriculum emphasized the study of Arabic language and culture. This school opened with the mission: “to prepare students of diverse backgrounds for success in an increasingly global and interdependent society. Our focus is on holistic student development and rigorous academics.” Yet, when the school opened many opponents argued that there was a hidden radical Islamic agenda. A New York Times article quotes Daniel Pipes, the director of a conservative research group, as saying, “It is hard to see how violence, how terrorism will lead to the implementation of sharia… It is much easier to see how, working through the system — the school system, the media, the religious organizations, the government, businesses and the like — you can promote radical Islam.” After a variety of setbacks, including this extreme Islamophobia, the school was closed down.

    Cases like yours and examples like this school reminds me of subtle layers that distinguish a school as “endorsing” religion, “preparing” students, or providing “accommodation”. While I do not think that formally led prayers are appropriate in state-funded schools, I find it perfectly acceptable to include Arabic language and culture as a part of a secular education.

  • Bryan Cottle

    A great an interesting case! I have to agree with Kile on this one. I am with the ACLU on this one. Although I am very defensive for minority religions, numbers 1, & 6 appeared to me a stretch into unconstitutionality. However, because it was a charter school I can see the division of the separation of church and state becoming blurry especially with the establishment clause (however it is usually hard to place an establishment clause violation on a minority). What was in error to me was that the prayers were posted on the doorways of the school and that the transportation was only being offered after the Islamic Studies classes. This seemed like an establishment of religion at the charter school. I could be fine with the religious documents in my opinion. I could be see them being used for historical teaching (thus meeting the mission statement of the charter school) and I could also see the need to allow the predominately Muslim students to be able to perform prayers during the day.

    I really liked the concept of an annual evaluation form being signed by charter schools showing that they were not promoting religion. I don’t think we can ever have a “bright-line,” where we will know the proper difference between accommodation and establishment clause violation in all cases. However, the annual check up will at least keep charter schools from unintentionally violating the establishment clause as they continually check themselves.