Locke urges U.S. Supreme Court to protect charter schools’ independence

Photo of girls wearing school uniform skirts is Creative Commons from Ron Lach.

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  • The John Locke Foundation urges the U.S. Supreme Court to hear a case called Charter Day School v. Peltier. It could protect charter schools from harmful government interference.
  • A Locke friend-of-the-court brief argues that charter schools should not be treated as "state actors" subject to the same restrictions as government agencies.

The John Locke Foundation is asking the nation’s highest court to hear a case that could help protect charter schools from harmful government interference. Locke filed an amicus, or friend-of-the-court, brief Friday in a case titled Charter Day School v. Peltier.

The Brunswick County-based charter school is asking the U.S. Supreme Court to reverse a June 14 decision from the 4th U.S. Circuit Court of Appeals. Appellate judges rejected the school’s dress code. The 4th Circuit also ruled that the private operators of the publicly funded charter school were “state actors.”

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.

“The specifics of charter schools’ relationship to the State can be difficult to discern,” Gibson wrote. “The Fourth Circuit Court of Appeals misunderstood this relationship. It acknowledged the State does not compel or coerce the policy Peltier challenges. But it held that charter schools are state actors because state law labels them public schools and obligates the state to provide public education.”

“Treating every organization offering services to the public as a state actor ignores the complexity of charter school law and creates a dangerous precedent for other public entities,” the Locke brief added. “Because charter schools operate independently, they are not state actors.”

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.

“Charter schools have thrived because of their independence from the state. North Carolina law recognizes the purpose of charter school legislation is ‘to establish and maintain schools that operate independently of existing schools,’” according to the Locke brief. “Independence allows expanded choices for parents and students, creates new opportunities for teachers, increases learning opportunities for students, and fosters different and innovative teaching methods. Treating charter schools as state actors endangers that independence and frustrates these purposes.”

“Independence means charter schools can innovate and offer unique educational choices,” Gibson wrote. “Charter Day School does just that. Its dress code is part of the unique educational experience it offers — an experience that has produced superb results.”

“As is her right, Peltier disagrees with that dress code,” he added. “But Peltier tries to transform her right to disagree into a right to prevent Charter Day School from offering its unique and innovative learning opportunity to other parents and students. If plaintiffs are correct, no charter school can offer a similar policy and no parent or student can choose to attend a similar public school.”

“Removing that choice removes parents and students’ choices to obtain a unique education,” according to the brief. “Almost three and a half million students have chosen charter schools because they are different from traditional public schools. Their independence and innovation is attractive. Treating charter schools as state actors would damage that independence and innovation and foreclose those choices.”

The 4th Circuit’s decision conflicts with U.S. Supreme Court precedent and rulings on similar issues in other federal circuits, Gibson argued. The brief urges the high court to settle the “state actor” issue.

“Delaying addressing this case will have only one result: uncertainty for private institutions providing education to the public with public funds,” Gibson wrote. “Until the [4th Circuit] decision below, the federal circuit courts of appeal uniformly held these schools were not state actors. Now there is dissent, and schools outside those circuits can only guess whether they are state actors or not.”

“This Court should not leave them guessing, its precedent undefended, or this issue of national importance unaddressed,” according to Locke’s brief.

The full 4th Circuit decided the Charter Day School case with a split 10-6 vote in June.

Senior Judge Barbara Milano Keenan, an Obama appointee, wrote the majority opinion.

“By implementing the skirts requirement based on blatant gender stereotypes about the ‘proper place’ for girls and women in society, CDS has acted in clear violation of the Equal Protection Clause,” Keenan wrote. “We further hold that sex-based dress codes like the skirts requirement, when imposed by covered entities, are subject to review under the anti-discrimination provisions of Title IX.”

Judge Marvin Quattlebaum, a Trump appointee, authored one of two dissents.

“Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor,” he wrote. “The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues.”

Three 4th Circuit judges would have rejected Peltier’s case completely.

“The majority misses the whole purpose of the development of charter schools,” wrote Judge Harvie Wilkinson, a Reagan appointee, for the dissenters. “It has little clue about the problems that led to the formation of the charter school experiment or the function that it serves. Its opinion is all about conformity. It is essentially dismissive of what charter schools might have to contribute, prejudging them as miscreants that must be brought to heel.”

Peltier’s attorneys face a Nov. 14 deadline to respond to the request for Supreme Court action. The high court faces no obligation to take the case.