Nora De La Cour: This Potential SCOTUS Case Could Change the Course of US Charter Schools
Still cooling its heels before the Supreme Court, this case would have far reaching effects on the charter school industry. It’s nominally about a dress code, but Peltier v. Charter Day School hinges on the question of whether or not charters are true public schools. Nora de la Cour looks at the issue for Jacobin.
How the high court answers this question could have grave implications for whether charter students — nearly 15 percent of all public school students — have the same constitutional protections as their traditional public school counterparts. Free market fundamentalists are now licking their chops in anticipation of doctrine that can “unleash innovation” by liberating charter operators from pesky civil rights constraints.
Kevin Welner is an attorney, leading education policy scholar, and coauthor with Wagma Mommandi of School’s Choice: How Charter Schools Control Access and Shape Enrollment. In this heavily researched book, Welner and Mommandi lay out how some charter schools shape access through marketing, messaging, curriculum, and other means — with the end result often being a student body that is whiter and wealthier than at surrounding schools. These access barriers seem to be unusually common among schools that, like CDS, claim the “classical” mantle. Even when no overt discrimination is present, the ecosystem in which charter schools make themselves marketable tends to promote unfairness.
Each of the forty-four states that authorize charter schools has its own laws governing how and when private entities can offer these educational alternatives, siphoning money and students away from the public system. North Carolina’s statutory code unequivocally states that “charter schools are public schools and that the employees of charter schools are public school employees.” For this reason among others, the Fourth Circuit ruled that CDS is a state actor and had therefore violated the Equal Protection Clause of the Fourteenth Amendment (which restricts the actions of states, not private parties) by placing the uncomfortable skirt requirement on its girl students.
In such cases, courts need to weigh a number of factors in order to determine whether a private person or organization is engaging in state action; there is no bright-line rule. As Welner explained to Jacobin, because North Carolina (unlike many other states) designates its charter employees as “public,” if the Supreme Court reviews Peltier and somehow decides that CDS is not a state actor, “it would be hard to imagine a situation where a charter school would be found to be a state actor.” The specifics of this would depend on the court’s reasoning, but civil rights advocates are concerned that a ruling in favor of CDS could erode constitutional protections for charter students in general.