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Law & Courts

Biden Administration Urges High Court to Reject Case on Legal Status of Charter Schools

By Mark Walsh — May 23, 2023 4 min read
This artist sketch depicts Solicitor General Elizabeth Prelogar, right, presenting an argument before the Supreme Court, Monday, Nov. 1, 2021, in Washington.
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President Joe Biden’s administration is urging the U.S. Supreme Court to reject reviewing a closely watched case about the legal status of charter schools, one that holds implications for the growing movement to bring about religious charter schools at public expense.

U.S. Solicitor General Elizabeth B. Prelogar late Monday filed a brief at the request of the justices in Charter Day School v. Peltier. The underlying dispute in the case is whether the private operator of the North Carolina charter school is violating Title IX by enforcing a student-behavior code that requires girls to wear skirts instead of slacks.

That question hasn’t yet been reached in a case in which the K-9 school in Leland appealed a preliminary ruling that it is a “state actor” exerting government authority when it enforces such a dress code because it is a publicly funded charter school.

The full U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 10-6 last June that Charter Day School was a state actor because North Carolina treats charters as public schools and even private operators of charter schools are being delegated the traditional state function of providing a free public education.

The school appealed that decision to the Supreme Court, and the justices in January asked the solicitor general to offer her views.

A concern that charter schools might evade legal requirements

In the brief filed on May 22, Prelogar argues that the 4th Circuit court got it right with its ruling that Charter Day School is a state actor. The North Carolina Constitution obligates the state to provide a free public education to its residents, and the state fulfills its duty in part by authorizing private entities to operate charter schools at public expense.

Thus, the school’s implementation of its dress code “in furtherance of the educational mission with which it has been tasked, and its enforcement of the dress code through disciplinary action, relies on power [it] possesses by virtue of state law,” Prelogar said in the brief.

“A holding that [the school] is not a state actor would allow states to evade constitutional constraints by delegating core governmental functions to private entities,” she added, citing language from the 4th Circuit’s opinion that a finding of no state action would mean that “North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools.”

North Carolina’s designation of charter schools as “public schools”—a facet shared by every other state that authorizes charter schools—is “far more than a label,” Prelogar said.

“Rather, it reflects North Carolina’s decision to create a system of public charter schools established by state-granted charters, integrated into the state’s public-school system, supervised by the state board of education, and treated as public institutions for a variety of state-law purposes—including, as particularly relevant here, student codes of conduct and disciplinary procedures,” she said.

Prelogar further argued that the Charter Day School case would be a poor vehicle to decide the state-actor question because it appears the school is subject in any event to Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools. Additionally, the school has a provision in its charter requiring it to abide by the U.S. Constitution, Prelogar noted.

Resolution of the state-actor question “will not alter [the school’s] legal obligations and may have no practical effect on the disposition of this case,” Prelogar said.

North Carolina case has implications for religious charter schools in Oklahoma and elsewhere

The Supreme Court will likely get supplementary briefs from Charter Day School as well as the families challenging the dress code, who are represented by the American Civil Liberties Union.

Although the court often follows the advice of the solicitor general’s office in cases where the justices requested those views, it sometimes disregards such advice and grants review anyway. A coalition of 10 states led by Texas as well as other groups have filed friend-of-the-court briefs urging the justices to take up the case.

Besides North Carolina, the Charter Day School case and the state-actor question are being watched closely in Oklahoma, where the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa have applied to a state board to operate a virtual charter school that would be publicly funded but operated based on church tenets.

The Oklahoma Statewide Virtual Charter School Board is weighing the application for the St. Isidore of Seville Catholic Virtual School amid conflicting state legal opinions and a fear that it will be sued whether it approves the religious charter or not.

Oklahoma Attorney General Gentner Drummond in February withdrew an advisory opinion of his predecessor that suggested a recent Supreme Court decision would allow, and perhaps even require, the state to approve an otherwise qualified application for a religious charter school.

Drummond, a Republican, noted in a Feb. 23 letter that the St. Isidore application ran into Oklahoma constitutional and statutory provisions that prohibit public aid to “sectarian” schools and that charter schools be “nonsectarian.”

But he acknowledged that the state-actor question was significant for the debate.

“This office recognizes that the law is currently unsettled as to whether charter schools are state actors,” Drummond wrote. Referring to the pending Charter Day School case, he added, “I am hopeful that the U.S. Supreme Court will definitively rule on this unsettled issue next term.”


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