Inside a legal test case that could mean more funding for religious education

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What some are calling a “public Christian school” has opened in Southern Colorado. 

Riverstone Academy is unusual in many ways. A grade school, it has only about 30 students and sits in a former office building outside the small city of Pueblo. It promises “trades-based learning” with a “Christian foundation.” Riverstone is receiving public funding, but it remains in a legal gray area. In fact, the school was created to test legal boundaries, according to an email obtained by Chalkbeat Colorado, although it is not yet the subject of any litigation.

Riverstone faces an additional barrier. Local authorities recently ordered the school to close its building because of various fire and safety concerns. Its future is in flux. 

Whatever happens next, Riverstone’s existence shows how the line between church and state in U.S. education has blurred. In 2002, a closely divided U.S. Supreme Court ruled that private religious schools could receive public funds. Then in a series of cases starting in 2017 the court took a step further: States had to provide funding to religious schools if similarly situated secular schools got money. This was still just in the realm of private schools.

At the time, I wrote a piece on the emerging possibility of religious charter schools, an obscure idea that had been confined to law review journals and think tank reports. Charters are defined in state law as public schools that cannot teach religion. Conservative legal scholars and advocates, though, began to make the case that such rules amount to unconstitutional discrimination.

Last year the Supreme Court split 4-4 on whether charter schools can be religious, leaving the issue unsettled. Now, various advocates are working to set up another legal challenge in Colorado and elsewhere. 

Riverstone Academy is not a charter school, but it’s structured in a similar way. If a school like this is allowed to exist it could open up a large new source of money for religious education in states across the country.

That’s all to say this tiny school could have bigger implications. That’s why I wanted to speak with Chalkbeat Colorado reporter Ann Schimke, who has been chronicling the high drama over Riverstone Academy for the last few months. We discuss how this school came into being, what its future is, and how it could affect the rest of the country.

The people and groups mentioned in our interview did not respond to requests for comment. 

Our conversation has been edited for length and clarity.

How can this school be public and Christian? 

The Colorado Constitution bars religious public schools. The regional education board that created the school is holding that because the school was started by them, and they are a public entity, that makes it a public school. They have argued that some of the big legal cases that have come before the Supreme Court in recent years essentially allow public funding for religious education. 

How is the state of Colorado reacting to this school? 

In October, the state sent a letter warning that because the school is religious, it potentially would not be eligible for public money. Since then, the state has been on the quiet side. But there's a lengthy audit process that will start this month that will determine whether Riverstone is eligible for public funding. 

Is Riverstone Academy intended as a legal test case? 

Yes, based on my reporting, that's exactly what it is. A Colorado lawyer who represents the board that authorized the school sent an email explaining that he had been approached by the conservative law firm, Alliance Defending Freedom, to start a test case over publicly funded religious schools. 

In its start-up paperwork, was this school transparent about being Christian? 

I would say no, in general. For example, in paperwork for the Colorado Department of Education, school officials mentioned nothing about the religious elements. The application to the authorizing board very briefly mentioned that one curriculum they would be using was Christian. Considering that's a key part of their advertising of the school, they very much downplayed that element. 

What do we know about the education children are getting at this school? 

Almost nothing. I've asked to visit the school. The director has not replied to this request. Two of the subjects include religious curriculum, but we don't really know what that looks like in the classroom. 

In the wake of this, a school board member in Pueblo, which signed off on the school, resigned. Why?

One of the things that became clear is that the Pueblo 70 school board’s then-president misled myself and the public, by extension, by saying that when she voted to approve the school locating in her district, she didn't know it was religious. Then she called me back the next day and said she knew that it had a religious curriculum, but didn't consider that something that made it a religious school. 

Later, once we got this email, that had been sent by the lawyer that helped facilitate the school, it became clear that he outlined exactly why they wanted to start the school, which was to spark a test case. This board member was the person who responded and said yes we'll consider putting it on the board agenda. 

Then in December, a parent with three children in the district, went to public comment and called out that board member for misleading the public. At that same meeting, the board member resigned and angrily left the boardroom. 

What are the national implications of this school? 

If the Supreme Court were to agree that Riverstone Academy in Pueblo County, Colorado, is allowed to get public funding and offer religious education, it opens up the possibility that this could happen anywhere in Colorado or the country. 

You've also reported that the school has had issues with health and safety violations. 

Yes, it's had health, fire, building, and zoning violations. Generally schools take anywhere from 12 to 18 months to get off the ground. This one was started in about two to three months. The founders of the school simply didn't go through the typical processes to ensure that the school is safe and up to code. 

The fire marshal was concerned enough to put the school on what's called a fire watch, which requires someone to walk through the school every 30 minutes to look for signs of fire. Another example is that the carbon monoxide alarms were not installed where required. 

What’s the latest on this?

On Jan. 6, the assistant county attorney for Pueblo County sent a letter ordering Riverstone to close its building over safety concerns. Lawyers for the school responded in a letter a few days later. They asked to be permitted to continue operations while they address these concerns. They said there was no “imminent danger,” but didn’t address the construction that will be needed to get the building up to code. I'll be following what happens next.

Ann Schimke contributed reporting. 

Reach me at [email protected].