REUTERS/Damir Sagolj
(Reuters) – A publicly chartered North Carolina school that prohibits girls from wearing pants or shorts because they are "fragile vessels" told the U.S. Supreme Court in a newly filed petition that the entire charter school movement is now endangered by an appellate ruling that found its dress code is unconstitutional.
The case, as I’ll explain, turns on a nuanced question about whether a privately run charter school that nonetheless operates under a state constitutional mandate to provide free public education is a state actor. The en banc 4th U.S. Circuit Court of Appeals ruled that it is last June in Peltier v. Charter Day School Inc. Charter Day, which operates four charter schools in North Carolina, contends that it is not an instrument of the state, and that its "parent-designed" dress code has nothing to do with the state.
The state-actor question in the Charter Day case might, by itself, warrant the justices’ attention. But the school’s lawyers from Baker Botts have shrewdly enhanced the odds of Supreme Court review by framing their bid as a chance for the justices to assure that parents can choose what kind of public education their children receive — a cause beloved by conservatives.
Charter schools, according to Charter Day’s petition, are now under “an existential threat.” The 4th Circuit decision, it insisted, “nullifies parental choice.” Parents who want the “traditional-values-based” education provided by schools like Charter Day “will see their choices overridden by a lone parent who seeks a federal-court veto of policies he disfavors,” the petition warned.
Innovation will be stifled for fear of litigation, Baker Botts said in what appears to be a not-very-subtle invitation to Supreme Court conservatives, and public education will become exactly the monolith that the charter school movement was supposed to dismantle, depriving millions of parents and students of alternative approaches to learning.
That framing seems to position the charter school case as the latest opportunity for the Supreme Court to foray into U.S. culture wars. The court has already agreed to review cases challenging Harvard University and University of North Carolina admissions policies that take race into account and to hear a Christian web designer's 1st Amendment challenge to a Colorado law barring discrimination against same-sex couples, among others.
The en banc 4th Circuit, as I told you in June, specifically rejected arguments that its ruling against Charter Day will squelch educational innovation, which Judge J. Harvie Wilkinson spelled out in a dissent joined by Judges Paul Niemeyer and Steven Agee. Judge James Wynn, in a concurrence joined by four other judges in the majority, said the very premise that parents have a right to send their children to state-funded public schools engaged in unconstitutional discrimination “is so plainly wrong [that] it borders on the offensive.”
Judge Barbara Keenan added tartly in the majority opinion, “Innovative programs in North Carolina’s public schools can and should continue to flourish — but not at the expense of constitutional protections for students."
But the Wynn and Keenan assertions only hold up if Charter Day is, in fact, a state actor. So most of the school’s new Supreme Court petition is dedicated to proving the 4th Circuit majority wrong on that point.
The state actor question has been at the heart of this case from the beginning, as I explained last October, when the appeals court granted en banc review of a panel decision that Charter Day students did not have a constitutional claim because the charter school's dress code was not directed by the state.
The en banc majority reached the opposite conclusion, ruling that charter schools in North Carolina are public schools. The schools are publicly funded – Charter Day, for instance, receives about 95% of its funding from the state — and staffed by teachers who are public employees under North Carolina law. According to the en banc 4th Circuit, North Carolina designated its obligation under the state constitution to provide free, universal education to charter schools, which makes such schools an instrument of the state.
And the state, according to the majority, cannot impose a dress code that, in Keenan’s words, “blatantly perpetuates harmful gender stereotypes … with potentially devastating consequences for young girls.” If Charter Day wants to require girls to wear dresses, skirts or skorts, Keenan said, it can do so as a private school — but not as a public school operating under a state charter.
Charter Day’s Supreme Court petition argues that the 4th Circuit majority disregarded Supreme Court precedent from 1982’s Rendell-Baker v. Kohn, which held that a private school for "maladjusted" high schoolers was not operating as an arm of the state when it fired teachers and a vocational counselor. Charter Day said that the Rendell-Baker case established that public funding and state regulation do not transform a private school into a state actor unless the school's conduct has been coerced by the state.
Charter Day's petition also said that the 4th Circuit’s en banc decision is at odds with rulings from the 1st, 3rd and 9th Circuits. The 3rd Circuit held in a 2001 decision written by then-Judge Samuel Alito that a onetime student at a private residential school for juvenile sex offenders could not pursue a constitutional civil rights claim against the school because it was not a state actor, despite receiving public funding. The 1st Circuit ruled in 2002’s Logiodice v. Trustees of Maine Central Institute that a private school did not operate as an arm of the state even though it was the only high school available to students in the district. And the 9th Circuit, in 2010’s Caviness v. Horizon Community Learning Center Inc, denied an Arizona charter school teacher’s due process claim because the state was not involved with the school’s decision not to renew his contract.
None of these cases is news to the ACLU, which represents the Charter Day families who challenged the school’s dress code. The ACLU already managed to persuade the en banc 4th Circuit that its case — which arose in a state whose constitution includes charter schools in its guarantee of a free public education — is distinguishable from those other circuit rulings.
The ACLU seems to be girded for a Supreme Court fight. “The 4th Circuit correctly applied long-standing Supreme Court precedent to conclude that students at North Carolina public charter schools have the same constitutional rights as their peers at traditional public schools, including the right to be free from discriminatory dress codes," the group said in an email statement. "We will continue to defend the constitutional freedoms of every public-school student at charter and traditional public schools alike.”
Read more:
In ‘skirts only’ school case, 4th Circuit says innovation great, inequality ain’t
North Carolina charter school's skirt requirement for girls unconstitutional, court rules
En banc 4th Circuit will review skirts-only dress code for charter school girls
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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.
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