Brunswick charter school rejects solicitor general’s arguments to US Supreme Court

A Brunswick County charter school operator defending its dress code in a federal lawsuit is rebutting recent arguments from the U.S. solicitor general’s office.

Solicitor General Elizabeth Prelogar represents the federal government in court. She urged the U.S. Supreme Court in May to reject the case titled Charter Day School v. Peltier. A parent challenged the school’s dress code requiring skirts for female students.

Operators of the school, now known as Classical Charter Schools of Leland, have asked the nation’s highest court to take the case. The charter defenders want the Supreme Court to reverse a federal Appeals Court decision.

The full 4th U.S. Circuit Court of Appeals split 10-6 in June 2022 when ruling against Charter Day School. The majority opinion labeled the charter operator a “state actor” in the context of its dress code.

Charter school operators are the petitioners in the case. Dress code challengers are the respondents.

“The Government dutifully repeats Respondents’ arguments, but the six dissenters below were correct: The Fourth Circuit’s decision flouts this Court’s precedent, creates an important circuit split, and threatens charter-school vitality,” wrote Charter Day School’s lawyers.

“The Government defends the Fourth Circuit’s reliance on West v. Atkins,” a 1988 precedent, “to conclude that state action arises whenever the state contractually delegates the partial fulfillment of a state-constitutional obligation to a private entity,” the brief continued. “Under that sweeping view, state action would cover not only charter-school operators, but also highway and defense contractors, and even charities that assist states in delivering social-welfare services. This Court never intended its narrow, unanimous decision in West to create such a sea change.”

Charter school lawyers rebut Prelogar’s argument that the school serves a “traditionally exclusive public function.” “But the Government blurs the lines between petitioner Charter Day School, Inc.—a private, nonprofit corporation—and the public school it operates. And the Government never responds to Petitioners’ showing that the school’s public label is immaterial to the state-action inquiry, especially when the state chose private operation to promote independence from the state.”

Other appellate courts have taken a different stance than the 4th Circuit, the charter brief argued. “The Government cannot dispute the material similarities between the decision below and those of the First, Third, and Ninth Circuits. In all four cases: (1) the state contracted (2) with a private entity (3) to provide publicly funded education (4) but did not compel the action challenged in the lawsuit. Yet only the decision below found state action.”

A favorable Supreme Court decision would make a real difference for the charter school, according to the brief. “Reversing here will eliminate the … injunction and thus alter Petitioners’ current legal obligation to rescind its preferred policy,” school lawyers wrote. “Such a decision would also wipe out the Fourth Circuit’s constitutional ruling, leaving no judicial application of the Equal Protection Clause to bind Charter Day School, Inc.”

The 4th Circuit’s ruling would have a negative impact if it stands, the charter brief added. “The Government beggars belief by asserting that deeming charter-school operators state actors will not constrain innovation,” charter lawyers wrote. “Imposing a … fee-shifting remedy has independent, tangible, and chilling consequences on charter-school operators and their volunteer boards.”

“Many successful charter-school policies would be constitutionally questionable in government-run schools,” the brief added. “Yet states have acted to ‘maximize’ ‘individual choice’ by allowing private actors to offer a menu of creative options for parents. Even in states that require charter schools to follow constitutional norms, the specter of burdensome Section 1983 actions would allow disgruntled students or teachers to veto innovation that the contracting state applauds.”

“States and Congress — who fund charter schools — also need this Court’s guidance,” the brief warned.

The John Locke Foundation filed an amicus, or friend-of-the-court, brief in October 2022 urging the Supreme Court to take the case. Locke’s brief focuses on the “state actor” issue.

“This case is important to amicus because it addresses a question fundamental to charter schools’ relationship with the State,” wrote attorney Dan Gibson, who filed the brief for Locke. “If charter schools are state actors, then charter schools will become little more than another branch of traditional public schools. That result would end the independence amicus have advocated and is enshrined in North Carolina law.”

The case started with a complaint from parent Bonnie Peltier. She objected to Charter Day School’s dress code requiring female students to wear skirts. Peltier’s attorneys argued in a federal lawsuit that a publicly funded school could not adopt that type of policy.

With more than 3.4 million students attending nearly 7,700 charter schools nationwide, the “state actor” issue has national importance, Gibson argued.

“The principle governing charter schools is that they are ‘held accountable for results — gauged primarily by academic achievement — in exchange for freedom to produce those results as they think best,’” he wrote.

Regardless of the 10-6 split among 4th Circuit judges, the U.S. Supreme Court faces no obligation to take up Charter Day School v. Peltier. If the high court takes the case, justices would consider arguments in the term that starts next fall.