New Jersey charter school may operate in church, says federal judge

Friday, September 18, 1998

A New Jersey charter school that receives public funds may operate in church facilities without violating the separation of church and state, a federal court has ruled.

Jerry Porta, a New Jersey taxpayer, sued the Soaring Heights Charter School and the Jersey City School District in June seeking to bar the publicly funded school from operating in space leased from the Riverside Assembly of God in Jersey City.

In 1995, the state Legislature passed the Charter School Program Act, which provides tax dollars to fund education for students attending specially chartered schools.

U.S. District Judge Jerome Simandle ruled this month in Porta v. Klagholz that Soaring Heights could hold classes in the church without violating the establishment clause of the First Amendment.

In his ruling, Simandle first pointed out that other courts have “upheld similar school-church lease arrangements on a case by case basis.” He then concluded that in the case of Soaring Heights and the church, no evidence was offered to suggest that students would receive Christian indoctrination.

The judge noted that “no religious symbols such as crosses, stained glass windows or church steeples on the exterior of the building,” were present at Riverside Assembly of God. Also, no “visible church signs or religious symbols, artwork, or literature,” appeared in the classrooms.

Simandle noted that the school’s charter contained a provision requiring all religious vestiges be removed from the church facilities “to ensure adherence to the First Amendment.” The charter also stated that, after the use of classrooms by the church, a Soaring Heights teacher would be required to check the room and remove any religious materials before classes would begin.

The judge noted that the school “teaches no religious instruction, has no prayer, and makes no references to God or religion.” The school’s curriculum is secular and its library contains “no religious books,” the judge wrote.

Simandle, however, pointed out that the agreement contained “one minor lease restriction pertaining to Halloween decorations by the school.” The lease stated that Soaring Heights “shall insure that pictures, drawings, sketches, photographs, articles, and other artifacts depicting the occult, cults, devils, witches, ghosts, skeletons, demons, warlocks, goblins, tarot cards, horoscopes, vampires, gravestones, or other materials of similar nature offensive to the Landlord shall not be displayed.”

Despite that provision and the fact that the pastor of the church is a member of Soaring Height’s 13-member board of trustees, Simandle ruled that the relationship of the charter school and the church resembled that of a tenant and landlord.

“The church’s doctrines, practices, worship services, architecture, and iconography are not manifested in the public school’s teaching, curriculum, budget, policy, student selection, or governance,” Simandle wrote. “Other than the fact that some parts of the same building are used for church purposes on weekends, and that the pastor’s office also occupies the same building, one could well visit the SHCS, enter by the school entrance, and not know that the building is even used for church purposes.”

Simandle concluded that “the mere leasing of public school space in a church building, without more,” does not violate the First Amendment’s establishment clause.

One of the central questions of establishment clause jurisprudence is whether a challenged public action or activity has the effect of advancing or inhibiting religion.

Simandle concluded that the “placement of a public school and public employees into leased space on church premises, does not itself give rise to the presumption that religion is inculcated into the school, nor does it create a symbolic union between church and state, nor does the public payment of lease money … finance religious indoctrination, nor does the lease agreement give rise to an excessive government entanglement with religion.”

The judge wrote that his ruling was influenced in part by the 1997 U.S. Supreme Court decision in Agostini v. Felton. In that case, a majority of the high court said it was permissible under the establishment clause for a public school teacher to enter a religious school to teach remedial courses.

Justice Sandra Day O’Connor, writing for the majority, noted the court had “abandoned the presumption” created in earlier decisions “that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.”