Can public school officials, acting under state authority, forbid girls from wearing pants? Bonnie Peltier didn’t think so.
In 2015 Peltier, the mother of a Leland, North Carolina kindergartener, complained about a rule at her daughter’s charter school compelling girls to wear skirts or dresses. Baker Mitchell, owner of the private, for-profit company that manages the school, responded by explaining that the policy was designed to preserve “chivalry” — which he later characterized as a code of conduct wherein women are “regarded as a fragile vessel that men are supposed to take care of.”
The following year, three future “fragile vessels” — Peltier’s daughter, a fourth grader, and an eighth grader — became plaintiffs in an ACLU lawsuit alleging that Charter Day School (CDS) had violated the US Constitution by imposing a rule that made it harder for girls to stay warm, feel comfortable, and play freely. An extensive legal battle followed, with a federal court ultimately deciding that CDS had indeed run afoul of the Fourteenth Amendment, which prohibits gender-based discrimination, by making the girls wear skirts.
Although CDS subscribes to a “classical education” philosophy that emphasizes “virtue” and aligns with conservative Christian values, the purportedly secular school offered no religious free exercise (First Amendment) justification for its restrictive dress code. Rather, the school’s primary legal argument was that the Fourteenth Amendment does not apply to charter schools.
Earlier this month, the conservative-majority Supreme Court asked Biden’s solicitor general to weigh in on whether the court should hear CDS’s appeal, as numerous Republican-led states and religious and right-wing groups have requested via amicus brief. The move signals that one or more justices are interested in reviewing the case. Such a review would address the question of whether charter schools are, as the US Court of Appeals for the Fourth Circuit concluded, state actors.
How the high court answers this question could have grave implications for whether charter students — nearly 15 percent of all public school students — have the same constitutional protections as their traditional public school counterparts. Free market fundamentalists are now licking their chops in anticipation of doctrine that can “unleash innovation” by liberating charter operators from pesky civil rights constraints.
Kevin Welner is an attorney, leading education policy scholar, and coauthor with Wagma Mommandi of School’s Choice: How Charter Schools Control Access and Shape Enrollment. In this heavily researched book, Welner and Mommandi lay out how some charter schools shape access through marketing, messaging, curriculum, and other means — with the end result often being a student body that is whiter and wealthier than at surrounding schools. These access barriers seem to be unusually common among schools that, like CDS, claim the “classical” mantle. Even when no overt discrimination is present, the ecosystem in which charter schools make themselves marketable tends to promote unfairness.
Each of the forty-four states that authorize charter schools has its own laws governing how and when private entities can offer these educational alternatives, siphoning money and students away from the public system. North Carolina’s statutory code unequivocally states that “charter schools are public schools and that the employees of charter schools are public school employees.” For this reason among others, the Fourth Circuit ruled that CDS is a state actor and had therefore violated the Equal Protection Clause of the Fourteenth Amendment (which restricts the actions of states, not private parties) by placing the uncomfortable skirt requirement on its girl students.
In such cases, courts need to weigh a number of factors in order to determine whether a private person or organization is engaging in state action; there is no bright-line rule. As Welner explained to Jacobin, because North Carolina (unlike many other states) designates its charter employees as “public,” if the Supreme Court reviews Peltier and somehow decides that CDS is not a state actor, “it would be hard to imagine a situation where a charter school would be found to be a state actor.” The specifics of this would depend on the court’s reasoning, but civil rights advocates are concerned that a ruling in favor of CDS could erode constitutional protections for charter students in general.
The Supreme Court did not set a deadline for when Solicitor General Elizabeth Prelogar must respond to the court’s query. Past practice suggests that she’ll file her brief near the end of the term, in June. At that point the court will decide whether to follow her recommendation, which is typical when the high court seeks input on pending appeals.
As the ACLU has pointed out, the case is “a poor vehicle” for settling the state action question vis-à-vis charter schools for a few reasons, including that North Carolina law requires charters to follow both state and US constitutions. So even if CDS isn’t a state actor, it still can’t discriminate. There’s also the complication of the plaintiffs’ still-being-litigated allegation that CDS violated Title IX.
Charter schools, to which states delegate some of their responsibility to provide free, universal K-12 education, are but one facet of our increasingly privatized public school system. Seventeen states have voucher programs (and nine have neo-voucher programs) that divert taxpayer dollars to private, frequently religious schools that can discriminate against students based on gender identity, religious affiliation, or perceived ability. So whether we’re looking at Peltier, voucher programs, or the specter of church-run charters (arguably enabled by a Supreme Court decision last year) mounting religious free exercise objections to antidiscrimination laws, it’s clear that privatization has made fertile ground for the rollback of children’s civil rights.
Peltier v. Charter Day School plainly seems to merit a determination that CDS, which receives 95 percent of its funding from public sources, is a state actor bound by the Constitution. But in Welner’s words, some of the current Supreme Court justices have proven themselves “willing to rewrite reality — they don’t seem to feel confined by the actual facts of the case.”