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Cardozo Law Review

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Regardless whether the American charter school can improve academic performance and provide effective alternatives to traditional public schools, its steady entrenchment as an institution portends significant, destabilizing changes across education law. In no area will its impact be more profound than the law of religion and schooling. Despite the general view that charter schools are public schools, charters’ neoliberal character — they are privately created and managed, and chosen by consumers in a marketplace — makes them private schools for Establishment Clause purposes, notwithstanding their public subsidy. This conclusion, which rests in substantial part on the Zelman v. Simmons-Harris vouchers case, implies that very substantial amounts of government money could be directed towards religious institutions as the charter sector expands. State decisions to permit or forbid religious chartering will determine the magnitude of this shift. But even states seeking to forbid religious chartering will find that the bottom-up, market-oriented structure of chartering invites religiously oriented educational entrepreneurs and parents to exploit the fuzziness of the categories “religion” and “school” in order to undermine such a ban. Practical and constitutional constraints upon the regulatory tools that the neoliberal paradigm makes available to states — rulemaking and exercising bureaucratic discretion when approving and renewing charters — ensure that efforts to abolish religion in charters will enjoy only partial success.