Law & Courts

Supreme Court Declines to Hear Closely Watched Case on Charter Schools

By Mark Walsh — June 26, 2023 5 min read
The Supreme Court on Wednesday afternoon, April 19, 2023, in Washington.
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The U.S. Supreme Court on Monday declined to take up a case about the legal status of charter schools that might have helped clarify whether publicly funded religious charter schools were consistent with the federal Constitution. The court’s decision lets stand a lower court ruling that a North Carolina charter school’s dress code requirement that girls wear skirts violated the U.S. Constitution.

The high court’s decision is not a ruling on the merits of the question presented by Charter Day School v. Peltier—whether a private organization that contracts with a state to operate a charter school is a “state actor” whose policies are subject to constitutional restraints.

The denial of review leaves in place a decision by the full U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., that the charter school was acting with state authority under North Carolina law, and thus its strict dress code requiring girls to wear skirts was a violation of the 14th Amendment’s equal-protection clause.

The 4th Circuit court last year also revived a claim brought by the challengers under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools. The charter school did not dispute that it received federal funds and was covered by Title IX, but it argued that the federal statute does not cover student dress codes. The 4th Circuit ordered an evidentiary hearing in a federal district court on the challengers’ Title IX claim.

“Today’s announcement is a victory for the thousands of students who attend public charter schools in North Carolina and for the 3.6 million students like them nationwide,” Ria Tabacco Mar, the director of the American Civil Liberties Union’s Women’s Rights Project, says in a statement. “Girls at public charter schools have the same constitutional rights as their peers at other public schools—including the freedom to wear pants. We will continue to fight for all girls to learn in safe and equal schools.”

The case took on even wider importance as questions arose elsewhere around the country about whether charter schools are state actors, meaning acting with government authority based on contracting with a state to carry out a form of public education.

In Oklahoma, a state charter school authority recently approved an application for the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa to operate a virtual charter school based on Catholic principles. Among other legal questions swirling around that debate, Oklahoma’s current attorney general said the question around whether charter schools were state actors was, at most, unsettled, and he urged the Statewide Virtual Charter School Board against approving the Catholic charter school application.

But the board this month voted 3-2 to approve the application, siding with a legal opinion issued last year by the former attorney general.

Existing Supreme Court precedents “counsel strongly toward a federal law finding that Oklahoma charter schools are not state actors and thus not vulnerable as an initial matter to an establishment clause challenge,” then-Attorney General John M. O’Connor wrote, referring to the First Amendment’s clause barring government establishment of religion.

A school based on traditional values like ‘chivalry’

The case of Charter Day School has attracted wide attention less for the arcane matter of state action and more about the school’s classical curriculum built around traditional values and “chivalry.”

The school justified its requirement against girls wearing slacks or shorts based on the idea that they were “fragile” and the rule promoted chivalry and “mutual respect.”

Several families, backed by the ACLU, challenged the rule under Title IX and the equal-protection clause. They said that skirts restricted girls’ movement and that wearing slacks or shorts would allow them freer movement at recess and during other school activities.

The long-running case reached the full 4th Circuit court, which ruled 10-6 last year that the charter school was a state actor and that the skirt policy violated the equal-protection clause.

“CDS has imposed the skirts requirement with the express purpose of telegraphing to children that girls are ‘fragile,’ require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls,” the majority said.

One dissenting judge wrote that, “To a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them.”

Those in dissent on the equal-protection issue said the school was not a state actor, and they worried ruling that all charter schools run by private groups would stifle educational innovation.

The 4th Circuit ruled 13-3 that Title IX encompasses sex discrimination in school dress codes, and it ordered an evidentiary hearing in the North Carolina case.

The charter school appealed to the Supreme Court solely on the state-actor question.

“This holding undoes the central feature of charter schools by treating their private operators as the constitutional equivalent of government-run schools, squelching innovation, and restricting parental choice,” the school argued in a brief.

The Supreme Court asked U.S. Solicitor General Elizabeth B. Prelogar to weigh in on the appeal. In a brief filed last month, she argued that the 4th Circuit court got it right with its ruling that the school is a state actor because 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.

She also argued that the case would be a poor vehicle to decide the issue because Charter Day School was also covered by Title IX.

The Supreme Court’s denial of review came without comment or recorded dissent.

Baker A. Mitchell, the founder of Charter Day School (which now operates four charters in North Carolina under the name Classical Charter Schools of America), issued a statement saying he was disappointed by the court’s refusal to take up the school’s case.

“Because it lacks meaningful limiting principles, the 4th Circuit’s opinion designating Charter Day School a ‘state actor’ will be applied to charter schools everywhere, threatening their autonomy, subjecting them to the same rules, regulations, and political machinations that have crippled government-run school systems, and worst of all, leaving many low-income parents and students with no option other than poorly performing district schools,” he said.


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