The U.S. Supreme Court on Monday asked the Biden administration to weigh in on a pending appeal about whether charter schools are acting with government authority when they adopt rules for student behavior.
The appeal stems from the high-profile case of a North Carolina charter with rules barring girls from wearing slacks or shorts. The case has become a flashpoint among some conservative groups—not over restrictive and allegedly discriminatory dress codes but for what it might mean for the legal status of charter schools.
A federal appeals court ruling that the school involved is a “state actor”—that is, acting with the authority of government—“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,” says the in (Case No. 22-238).
The court’s request that the U.S. solicitor general weigh in on the question suggests at least one justice is interested in granting full review of the case. And while the court usually follows the recommendation of the solicitor general’s office on pending appeals when it seeks such advice, that isn’t always the case.
Meanwhile, Charter Day School, a K-8 school in Leland, N.C., which teaches a classical curriculum, has pressed its case not only with it own legal briefs but also with an in The Wall Street Journal. George F. Will embraced the school’s arguments in last week as well.
“Only the Supreme Court can protect charters from progressives” who are “ever eager to break all institutions to the saddle of government,” he wrote.
The North Carolina school also has the support of several states and groups filing friend-of-the-court briefs at this early stage in the high court.
“The question presented in this case … warrants this court’s attention because it may dictate whether [charter] schools can continue to exist,” says a and signed by nine other Republican-leaning states.
The 10-6 ruling by the full U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., last June attracted more attention for its discussion and debate about dress codes, “chivalry” and other values of the Middle Ages, and gender stereotypes.
But that also included robust debate about whether charter schools are state actors subject to the U.S. Constitution. The majority noted that North Carolina refers to its charter schools as “public” and that Charter Day School received 95 percent of its funding from public sources. Furthermore, they argued, North Carolina had delegated part of its state constitutional obligation to educate the state’s students to charter school operators, and those operators are performing a function traditionally reserved for the state.
There were two vigorous dissents on the state-actor issue, including one by Judge J. Harvie Wilkinson III, who said the majority decision “will drape a pall of orthodoxy over charter schools and shift educational choice and diversity into reverse.”
The American Civil Liberties Union, which represents the female students who challenged the charter school’s dress code, told the Supreme Court that the case would make a poor one to decide the question of whether charter schools are state actors.
For one thing, there is a question still being litigated in the case about whether the school’s dress code violates Title IX of the Education Amendments of 1972. That law bars sex discrimination in federally funded schools, and no one in the case disputes that it covers Charter Day School. Additionally, North Carolina imposes a contractual obligation on charter operators to abide by the state and federal constitutions, so the school is legally bound to respect students’ constitutional rights whether it is a state actor or not, the ACLU wrote.
The high court did not set a deadline for the Biden administration to file a brief in response. Past practice suggests that a request from the court midway through its term would likely result in a brief being filed near the end of the term in June.
