This Article is devoted to one of the most fascinating contemporary developments in American public education—the phenomenal rise of religious, ethnic, and cultural charter schools. Religious, ethnic, and cultural charter schools are established by a religious or ethnic community with the aim of providing an education saturated with the respective values and culture of that community. Despite their growing prevalence and the significant legal challenges they pose, they have, thus far, not been given sufficient attention by legal scholars. What little discussion there is focuses solely on religious charter schools’ incompatibility with the First Amendment’s Establishment Clause.
While the Establishment Clause challenge constitutes one central challenge to religious charter schools, another crucial aspect of their operation should be highlighted: their negative impact on the educational opportunities of children from racial minorities and lower socioeconomic classes. The Article argues that because of their unique characteristics, religious, ethnic, and cultural charter schools are especially likely to have negative effects on educational equality, and makes the case for legislative intervention in order to prevent this outcome. First, the Article exposes and explores the central detrimental effects of religious, ethnic, and cultural charter schools: racial and socioeconomic segregation, and the twin-processes of “creaming” and “cropping.” Then, based on a comprehensive critical survey of all charter legislation in the United States aimed at preventing segregation in the different states, the Article argues that charters’ antidiscrimination rules have the surprising effect of worsening inequality instead of alleviating it, and that the legislative measures aimed at ensuring integration cannot fully promote equality. Therefore, the Article supports a different strategy, adopted recently in Delaware, according to which religious and ethnic charter schools should be authorized only if they do not compromise the education of students in traditional public schools.