Charter school innovation shouldn’t come at the expense of constitutional protections for students

On Monday, we’ll likely learn whether the U.S. Supreme Court granted a writ of certiorari(review of a lower court’s decision)during its first conference of 2023 on Jan. 6 in a public charter school case with constitutional implications. The case is a battle over school uniforms — skirts, to be precise. But don’t let the seemingly trivial subject matter fool you. Much more than a mere sartorial regulation is at stake, as demonstrated by the plethora of amicus briefs filed by conservative religious organizations urging the court to take the case.

Peltier et al. v. Charter Day School was prompted by three North Carolina parents’ distaste for Charter Day School’s (CDS) requirement that their daughters wear only skirts to school. Pants, after all, are warmer in winter. The girls also complained of feeling reticent to use playground equipment or crawl on the floor during active shooter drills and felt discouraged that they weren’t as deserving of freedom of movement as their male classmates.

After the school refused to change its policy, the parents sued for discrimination under the equal protection clause of the Constitution, Title IX and CDS’s contractual agreement with the North Carolina Board of Education, which requires charter schools to abide by all constitutional mandates.

CDS is a “classical academy,” one of four schools in North Carolina’s unapologetically conservative Roger Bacon Academy network. CDS’s founder defended the skirts-only policy: Girls and boys should be required to dress differently to emphasize “chivalry.” It’s part of “a code of conduct where women are … regarded as a fragile vessel that men are supposed to take care of and honor” and “are to be treated courteously and more gently than boys.”

Since 2016, when the suit was filed in the United States District Court for the Eastern District of North Carolina, the case has turned on whether North Carolina’s charter schools are “state actors” operating under the “color of state law” when they implement discriminatory rules like CDS’s dress code. With narrow First Amendment exceptions (you may remember the Colorado baker who refused to bake a wedding cake for a gay couple because of his religious beliefs), private parties have no liability under the U.S. Constitution.

CDS very badly wants the Supreme Court to rule it a private actor so it can resume its (currently enjoined) gender-discriminating ways. The problem is that court-sanctioned gender discrimination in publicly funded schools would almost certainly serve as a gateway to other well-known forms of discrimination.

The Fourth Circuit Court, the most recent to rule in the case, cited specifically that problem:

“Were we to adopt CDS’s position, North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools. We need look no further than the shameful history of state-sponsored racial discrimination in this country to reject an application of the Equal Protection Clause that would allow North Carolina to abdicate its duty to treat public schoolchildren equally.”

That’s just a fraction of the Fourth Circuit’s 103-page opinion, which includes two dissents and one vehement concurrence that focuses on the serious harms caused by gender discrimination.

Ten members of the 16-member appellate panel signed on to the majority opinion’s lengthy analysis of the U.S. Constitution, North Carolina’s State Constitution and North Carolina’s charter school statute in finding that CDS – and the rest of the state’s charter schools – most certainly operate under the color of North Carolina state law. The justices took pains to note the “free, universal” nature of charter schools that operate as “public schools under authority conferred by the legislature and funded with public dollars.”

The National Alliance for Public Charter Schools (the nation’s leading advocate for schools like CDS) was among the first to applaud the Fourth Circuit’s opinion. In a statement at the time of the decision, President and CEO Nina Rees said the ruling “confirms what charter advocates, charter schools, and, most importantly, charter families around the country know: charter school students are public school students and must be protected under the U.S. Constitution.”

Let’s hope the U.S. Supreme Court agrees and turns its energy to the many other cases crowding its docket. The Fourth Circuit gave it an easy out by kicking the Title IX claim in the case back down to the district court for evidentiary review. The court could simply claim that the case isn’t yet ripe for its docket.

If the court does take the case, conservatives will cheer. Ten states (all of them red, most of them Southern) have filed a brief supporting CDS, as has the conservative John Locke Foundation and various religious organizations. They are hoping for a Supreme Court decision that would open the door to religious instruction in schools that are taxpayer funded but suddenly deemed “private,” therefore exempted from following the U.S. Constitution.

Given the current makeup of the court, it might be a longshot to hope that it declines to take a case. Only four justices need to give a thumbs up. The certiorari decision will likely come Monday or soon thereafter.

It would be unfortunate, to put it mildly, because the Fourth Circuit got it right. Charter schools in North Carolina’s can and should continue to innovate and flourish, but not at the expense of constitutional protections for students.

Tressa Pankovits is co-director of the Reinventing America’s Schools Project at Progressive Policy Institute.