Supreme Court Will Not, At This Time, Rule On Whether Charter Schools Are Public Or Private

On Monday, the Supreme Court indicated that it would not take on Peltier v. Charter Day School.

The case, which is nominally about whether or not Charter Day School can impose a dress code on female students, hinged on the question of whether or not the North Carolina charter school is a state actor—in other words, a public school subject to the same rules as any other public school.

Many education policy folks on all sides of charter issues were watching the case to see if it would finally settle the question of whether or not a charter school is truly a public school.

The Supreme Court decision not to hear the case means that the full panel decision by the 4th Circuit Court of Appeals will stand— Charter Day School is a public school and therefor must abide by the laws governing all public schools (in this case, Title IX in particular).

The court had earlier this year asked the Biden administration to weigh in on whether or not to hear the case; earlier this month the administration sent back its answer. They argued against hearing the case, noting that the 4th Circuit decision was correct, and did not warrant review, nor was it a “good vehicle for considering the question presented.”

That ruling has implications for the many charter advocates hoping to launch religious charter schools, as Oklahoma has already done.

Up until a few years ago, it would have been quite clear that public schools cannot also be religious schools. But in the past few years, the Supreme Court has issued several decisions that have chipped away at the schoolhouse wall dividing church and state.

Conservatives in Oklahoma took those decisions as a sign that the court is ready to allow religious charter schools, and they may well be right. But we won’t know for sure until the court takes on the case. Since a legal challenge is already teeing up for Oklahoma’s religious charter decision, that may be the case that eventually prompts the court to weigh in. In the meantime, Charter Day School is going to have to rewrite its dress code.

This is a school whose mission involves communicating through the arts and sciences. Charter Day School is part of the network of charters operated by Roger Bacon Academy, one of the charters that focuses on a “classical curriculum” in a “safe, morally strong environment,” which meant, apparently, no pants-wearing girls in their school (It also supposedly means things like sentence diagramming in Kindergarten and Latin in 4th grade, but then, its founder is an electrical engineer, not an educator.)

RBA is owned and operated by Baker Mitchell, Jr., one of the titans of charter profiteering. Back in 2014, Marian Wang profiled the “politically-connected businessman who celebrates the power of the free market,” and how he perfected the business of starting nonprofit charter schools and then having those schools lease their buildings, equipment, programs, etc. from for-profit companies owned and operated by Baker Mitchell, Jr. That’s where the Roger Bacon Academy, a for-profit charter management company comes in.

The case against the dress code was originally filed in 2016, and has been winding through the courts ever since. Charter advocates have themselves been split. The National Alliance for Public Charter Schools agreed with the 4th Circuit ruling:

The importance of this case could not be overstated, as it was the first time a federal appellate court considered whether public charter school students deserve the same constitutional civil rights protections as district public school students. The en banc court clearly and unequivocally affirmed that charter schools are public schools and, accordingly, must be bound by the US Constitution. Moreover, public charter school students have the same constitutional and civil rights as their district public school peers.

But those siding with the charter school argued that the ruling would “stifle innovation,” and Mitchell kept arguing in favor of the dress code. “We want boys to be boys and girls to be girls and have mutual respect for each other. We want boys to carry the umbrella for girls and open doors for them … and we want to start teaching that in grammar school.”

But the 4th Circuit found the skirt rule violates equal protection because it’s based on the old notion that “girls are fragile and require protection by boys.” Judge Wilkinson, dissenting, lamented the end of the “age of chivalry.” The majority noted that such an age was also the age “when men could assault their spouses” and that chivalry “may not have been a bed of roses for those forced to lie in it.”