Guam Legislature Overrides Veto, Approves Religious Charter Schools Amid Dueling Constitutional Arguments
Governor: Religious charter schools violate the Establishment Clause. Legislature, Attorney General: The Free Exercise Clause prevents Guam from denying publicly available funds to religious charter schools.
The legislature of Guam passed a bill on June 30 allowing for taxpayer-funded religious charter schools, which the U.S. territory’s governor promptly vetoed on July 12, citing constitutional concerns. On July 25, the legislature overrode Governor Lou Leon Guerrero’s veto, and the law took effect immediately.
The veto override came after a July 18 advisory opinion from Guam Attorney General Douglas Moylan, who challenged the governor’s views. Moylan also cited religious charter schools as “a potentially effective way” for the government to overcome setbacks delaying the start of this school year.
The bill’s legislative findings section touts the “great success” of alternative educational approaches like trade schools and internships over “traditional methods of instruction [that] have failed.” To encourage non-traditional approaches, the bill provides that “[p]rivate, religious schools shall be eligible to apply to convert to an Academy Charter School.”
The bill’s findings section, the governor’s veto statement, and the attorney general’s opinion offer dueling interpretations of recent U.S. Supreme Court First Amendment precedent: Trinity Lutheran Church of Columbia, Inc. v. Comer, Espinoza v. Montana Dept. of Revenue, and Carson v. Makin.
In these cases, the Court respectively found free exercise violations when the state denied a religious childcare facility publicly available funds to resurface its playground, prohibited students from using public scholarship funds to attend religious schools, or refused to allow students to use taxpayer-funded school vouchers to attend private religious schools.
The bill’s findings section frames these decisions as eliminating “the historic distinction between sectarian and non-sectarian private schools” and barring “discrimination between sectarian and non-sectarian government funding for schools.”
The governor’s veto statement, however, distinguishes the facts of these cases from those of the bill, arguing these cases concerned “government assistant to individuals.” In these cases, “the government did not exercise regulatory authority over the school.”
This distinction means a religious charter school is a public school and, therefore, a state actor subject to the First Amendment, according to the governor’s veto statement. Since charter schools are state actors, argues the governor, a law establishing religious charter schools violates the Establishment Clause.
The governor, wishing to avoid costly litigation, opted to veto the law.
The attorney general’s opinion pushed back on the state actor argument, reasoning that religious charter schools are not state actors except for acts “coerced or encouraged” by the government. When acting as “a private education contractor,” a religious charter school “does not engage in state action” absent that “coerc[ion] or encourage[ment].”
The Freedom from Religion Foundation (FFRF) issued a press release “condemn[ing] the Guam Senate for overriding Gov. Lou Leon Guerrero’s veto of a bill permitting taxpayer-funded religious charter schools in the territory.”
Guam’s action came shortly after Oklahoma became the first state to approve a religious charter school. Several groups have threatened legal action over the decision, and the Oklahoma Statewide Virtual Charter School Board voted on July 24 to retain the Alliance Defending Freedom to defend itself.
“There is an obvious reason why there has only been one attempt to create a religious charter school in the entire country,” the FFRF press release continued, “and litigation regarding that school is already under way [sic] from FFRF and other legal groups.”
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