Peter Greene writes about a charter school in North Carolina that had a strict dress code for female students. Parents sued to overturn the rule as a violation of Title IX. They won. But then a federal appeals court reversed the ruling. The judges reasoned that charter schools are not public schools and not subject to the same laws as public schools.
He wrote:
In North Carolina, Charter Day School back in 2016 was sued by parents who objected to a dress code requiring girls to wear skirts, jumpers, or skorts. They just won that suit, sort of, but revealed something about themselves in the winning.
This is a school whose mission involves communicating through the arts and sciences. Charter Day School is part of the network of charters operated by Roger Bacon Academy, one of the charters that focuses on a “classical curriculum” in a “safe, morally strong environment,” which meant, apparently, none of those pants-wearing girls in their school (It also supposedly means things like sentence diagramming in Kindergarten and Latin in 4th grade, but then, Baker is an electrical engineer, not an educator.)You’re in trouble now, missy.
RBA is owned and operated by Baker Mitchell, Jr., and if that name seems vaguely familiar, it’s because he is one of the titans of charter profiteering. Back in 2014, Marian Wang profiled the “politically-connected businessman who celebrates the power of the free market,” and how he perfected the business of starting nonprofit charter schools and then having those schools lease their buildings, equipment, programs, etc from for-profit companies owned and operated by Baker Mitchell, Jr. That’s where the Roger Bacon Academy, a for-profit charter management company comes in.
In 2019, a federal judge passed down the ruling that any public school in the country would have expected– a dress code requiring skirts for girls is unconstitutional. The school quietly retired the item in the dress code.
But that wasn’t the end of it. Monday (Aug 9) a federal appeals court tossed out the 2019 ruling–sort of– in a 2-1 ruling.
The two judges, both Trump appointees, ruled that contrary to the assertion of the lower court, that charter schools should not be considered state actors, and are therefore not subject to the Equal Protection Clause of the 14th Amendment. This is yet another way for the courts to work their way around to declaring that charter schools are free to discriminate in any ways they wish. But it also makes one thing perfectly clear–
Charter schools are not public schools. They are not state actors.
Diane Ravitch's blog 
California already settled this same issue in 2006. The outcome was similar, that charter schools can be sued unlike public schools. Here’s the case:
Wells v. One2One Learning Found., S123951
Read Wells v. One2One Learning Found., S123951
READ
Public school districts are not “persons,” as defined in the California False Claims Act (CFCA), who may be sued under the terms of that statute. However, charter schools, and the individuals, corporations, entities, or organizations that operate them, are “persons” subject to suit under both the CFCA and the unfair competition law, and are not exempt from either law merely because such schools are deemed part of the public school system.
Does this have import regarding future funding of charters? If they are not state actors are they eligible to receive funds as public schools do? Hoping this might be the first nail in the coffin…
I was definitely hoping the same thing. Hopefully this is the first decision of many that’ll clamp down on the siphoning off of taxpayer dollars to turn a profit with little-to-no benefit to communities. But with the charter lobby’s Army Corps of sycophants and parasites crawling all over DC and state capitals like maggots on warm garbage, I’m sure decisions in favor of public education will be fewer than those that allow privateers to destroy it.
It has no relevance to that. It’s a one-off case about whether charter schools are “state actors” in the context of laws regulating government entities.
Espinosa v. Montana, decided by the conservative Catholic SCOTUS majority in 2020.
Just went to the school’s website. The language used in the “Philosophy” section is just weird! “We endeavor to inculcate the four classical virtues of prudence, justice, fortitude, and temperance and the three attributes of faith, hope, and charity.” Here’s the final line of the school’s pledge. ” I pledge to be obedient and loyal to those in authority, in my family, in my school, and in my community and country, So long as I shall live.” Those parents who are suing obviously haven’t read the pledge!
“RBA is owned and operated by Baker Mitchell, Jr., and if that name seems vaguely familiar, it’s because he is one of the titans of charter profiteering. Back in 2014, Marian Wang profiled the “politically-connected businessman who celebrates the power of the free market,” and how he perfected the business of starting nonprofit charter schools and then having those schools lease their buildings, equipment, programs, etc from for-profit companies owned and operated by Baker Mitchell, Jr. That’s where the Roger Bacon Academy, a for-profit charter management company comes in.”
These kinds of arrangements are just fine with the ed reform echo chamber.
The whole echo chamber just came out to lobby on behalf of federal funding of for-profit charter management companies. They endorse for profit K-12 schools.
They could regulate properly and end some of the profiteering – they lobby for and draft the charter laws- but they refuse to.
Here’s Jeb Bush lobbying on behalf of for profit charter management companies. Ed reformers are hugely well-connected, so this appeared in hundreds of newspapers all over the country:
“Not only does it specifically cut $40 million in education funding, it also includes alarming language that would prevent any federal funds from reaching any charter school “that contracts with a for-profit entity to operate, oversee or manage the activities of the school.”
https://www.miamiherald.com/opinion/op-ed/article253321418.html
Forget all that nonsense they sold the public about how the privatized schools would be “nonprofits”. They heartily endorse for for profit charter schools. In fact, they believe they should be federally funded.
Another lurch Right for “the movement”. Not just privatized- for profit.
I’m not sure it matters that charter schools aren’t public schools in the grand scheme of ed reform.
They all lockstep lobby for vouchers anyway. The echo chamber spent the last year lobbying for vouchers- “public or not public” is no longer part of their agenda.
There’s no committment at all to the “public” in public education. They’ll happily privatize the whole K-12 sector entirely.
They’ve moved on from the “are charter schools public?”. Now they all lobby for universal vouchers and no public system at all.
I
t’ll be a super-interesting experiment they’re conducting on 50 million students and families. Gosh, I hope this “market based” dogma works.
When they redefined “public education” to mean “publicly funded” the end result was inevitable. They were always going to end up at vouchers and of course they did.
Ed reform is incompatible with public systems. It HAS to privatize and it has to privatize more and more, and it has. It will continue to privatize until some outside force – political, the public, a change in ed reform echo chamber members- halts it.
Charters need to expand territory to survive. Vouchers are a ridiculous waste of public funds. There is an accountability backlash occurring in some states like California and Pennsylvania. Taxpayers are starting to catch on to the big scam, and they are demanding accountability and change.
Many states have been sold a “Brooklyn Bridge” that is more than fifty percent marketing. Public schools are public assets. Good public schools enhance property values. Who in their right mind would want to diminish their public asset and transfer so much money out of it that their own public asset withers and dies while the public money ends up in the pockets of private contractors that take the local public dollars out of the local economy? It is disinvestment in their own public asset. If people understood the economics of privatization, they would run privatizers out of town. They are parasites that want to feed on local tax dollars under the guise of “choice.”
Slapping the word ‘Public’ onto the names of charter schools is just a marketing ploy. If the public were better made aware of the fact that charter schools are, like private prisons, businesses receiving subsidies, no more “public” than ExxonMobil, it would further cut into charter sales. They don’t really have long waiting lists of backpacks full of cash “waiting for Superman.” It’s all marketing. They’re struggling and they are trying to rebrand. It matters that courts rule charters are not public schools because taxpayer funded businesses are widely viewed as creepy. People want public schools. They don’t want to be told to wear skirts. They don’t want to do homework all night long. It’s a free country.
I do think public schools have a duty to cut ed reformers loose though. The movement can continue their inexorable march towards Right wing economic fealty when engineering their privatized systems but nothing they do benefits public schools or public school students so public schools should go their own way.
If a public school does a cost/benefit to THEIR STUDENTS regarding following along behind the ed reform echo chamber what’s the result? Has it worked out for your students? No? Then wny are we still taking direction from people who return no value to our students?
If it isn’t benefitting public school students – and it isn’t- public schools have a duty to break ranks. They’re in the serving public school students business. This “movement” is in the privatizing public schools business. Those two missions are not aligned.
It might be freeing for public schools to go confidently “pro public school”.
We’re permitted to genuinely value and support our schools and we’re also permitted to hire and take direction from people who share that mission.
Private schools would never take direction from a group of “experts” who operate under a theory that private schools have no value and must be abolished. Why are public schools?
What if (and I know this is almost unimaginable, due to 30 years of propoganda) public schools went forward valuing their schools and students AS PUBLIC SCHOOLS?
We value our public schools, right? We don’t buy that a school is just a “delivery system” for edu-product and there’s absolutely no difference between public/private other than consumer choice. We reject that. Okay then. That’s a fork in the road with the “ed reform movement”. It’s a fundamentally different belief.
I think this grand experiment in redefining schools as “delivery systems” ends up harming private schools too.
We’ve had a Catholic school here for decades. Understandably, mostly Catholic families attended there. With the huge ed reform push for vouchers the families who attended prior say it’s no longer Catholic in any recognizable way.
Their push to erase the line between “private” and “public” hasn’t benefitted public schools and it probably won’t benefit private schools either because it was never “about” education.
It was about following billionaires, or about loathing labor unions, or about some Ayn Rand notion where individual choice trumps every other value, or about whatever trendy business-speak garbage dictates that schools have to be turned into commerical entities, because everything, everything must be run “like a business” even if it’s not a business and doesn’t want to be one.
We’ll have plenty of “choices” but they’ll all be less than they were before these incompetent engineers dismantled the schools and recklessly threw them in the trash.
Correction:
“We endeavor to inculate the classical “divide and rule”
strategy. Cognitive dissonance is the name, rule is the
game.”
While I find the dissent by Obama-appointed Judge Keenan rather more compelling than the majority decision by Trump appointees Quattlebaum and Rushing, Peter Greene’s belief that the latter establishes that “Charter schools are not public schools. They are not state actors.” is contradicted by the text of the decision on which he relies.
Quattlebaum and Rushing, in fact, wrote: “Thus, our decision today does not address whether a charter school can ever be a state actor. We only decide today that CDS’s skirt requirement is not ‘fairly attributable’ to the state for § 1983 purposes. Rendell-Baker, 457 U.S. at 838.”
FWIW, Keenan’s dissent includes material such as:
“In my view, the majority’s “state action” analysis jumps off the rails by relying
heavily on Rendell-Baker v. Kohn, 457 U.S. 830 (1982), a case dealing with a private,
rather than a public, school. The majority’s circumvention of the statutory text is puzzling
because North Carolina law unambiguously defines its charter schools as public schools
established under the state’s authority and responsibility to provide its citizens a free public education. N.C. Gen. Stat. §§ 115C-218(a)(5), 115C-218.15(a)
“N.C. Gen. Stat. § 115C-218. Charter schools may only operate under the authority granted to them by their charters with the state. See id. §§ 115C-218.15(c), 115C-218.5. The state may revoke a school’s charter, among other reasons, for non-compliance with the terms of the charter, poor student performance, or poor fiscal management. See id. § 115C-218.95. In defining the nature of charter schools, North Carolina law expressly provides:
‘A charter school that is approved by the State shall be a public school within the local school administrative unit in which it is located. All charter schools shall be accountable to the State Board for ensuring compliance with applicable laws and the provisions of their charters.’
“Id. § 115C-218.15(a)2 (emphasis added); see also Sugar Creek Charter Sch., Inc. v. North Carolina, 712 S.E.2d 730, 742 (N.C. Ct. App. 2011) (observing that charter schools are “indisputably public schools”). And “for purposes of providing certain State-funded
employee benefits,” the North Carolina legislature has specified that “charter schools are public schools and that the employees of charter schools are public school employees.”
N.C. Gen. Stat. § 115C-218.90(a)(4). Thus, under the plain language of these statutes,
charter schools, as a matter of state law, are public institutions.”
There have been other decisions in federal courts that exempted charter schools from anti-discrimination laws because they are “not state actors.”
I am not aware of any federal court decision that substantiates the sweeping conclusion that you quoted from Greene.
There have been several instances in which charter schools avoided state law by claiming they are not public schools and are NOT state actors. I wrote about these decisions in REIGN OF ERROR (pp. 163-164). In one case in 2010, the Ninth Circuit Court of Apoeals ruled that a charter school operator in Arizona was a private nonprofit corporation, not a state actor. A teacher who was fired sued the school, and the Court dismissed his claim because charters are not state actors. In 2011, when more than 60% of the staff at the New Media Technology Charter School in Philadelphia tried to form a Union, the school insisted that it was not a public school and was not subject to state law. In 2011, 2/3 of the teachers at the Chicago Math and Science Academy wanted to form a Union; the charter operator insisted that it was not a public school. The NLRB concluded that the charter school was a private, nonprofit corporation, operating under contract to the government.
Diane: “In one case in 2010, the Ninth Circuit Court of Appeals ruled that a charter school operator in Arizona was a private nonprofit corporation, not a state actor.”
Actually, in that case, “Caviness v. Horizon Community Learning” the Court cited Lee, 276 F.3d at 555 n.5.: “It is important to identify the function at issue because an entity may be a State actor for some purposes but not for others.” And concluded that the non-profit corporation managing a particular charter school was not a state actor in respect to certain actions it took surrounding the firing of one of the school’s teachers. The Court did not, by any means, arrive at the conclusion that “Charter Schools Are Not Public Schools.”
Diane: “In 2011, 2/3 of the teachers at the Chicago Math and Science Academy wanted to form a Union; the charter operator insisted that it was not a public school. The NLRB concluded that the charter school was a private, nonprofit corporation, operating under contract to the government.”
In that case, also, there was no sweeping assertion that “Charter Schools Are Not Public Schools”. Indeed it stated:
“Our decision is based on the facts of this case, which involves the operation of a public charter school under the particular provisions of Illinois law. We certainly do not establish a bright-line rule that the Board has jurisdiction over entities that operate charter schools, wherever they are located and regardless of the legal framework that governs their specific relationships with state and local governments.”
One of the key “Hawkins County” tests it applied was whether the Illinois school was “administered by individuals who are responsible to public officials or to the general electorate.”
[…]
“Given the undisputed method of appointment and removal of CMSA’s board members, we find that none of them are responsible to public officials in their capacity as board members, and that, therefore, CMSA is not ‘administered’ by individuals who are responsible to public officials or the general electorate.”
By contrast, according to our law here in Massachusetts:
“(ii) the appointing official of a member of the board of trustees of a charter school shall be deemed to be the commissioner of education.”
https://www.doe.mass.edu/lawsregs/ch71s89.html
That’s further detailed in “Charter School Administrative and Governance Guide: An Overview of the Laws and Regulations that Schools Leaders and Boards of Trustees Need to Know” as follows:
“5. State Approval of New Board Members
When a charter school’s Board of Trustees votes to accept new members, and before those individuals may take official action, the following steps must be taken to receive approval of the new members from the Commissioner of Education:…”
The steps include submitting a letter seeking the Commissioner’s approval with copy of resume, financial disclosure forms…
https://www.doe.mass.edu/charter/governance/?section=bmms
If charter schools were public schools, they would have genuine transparency and accountability, and none would be operated by for-profit corporations. If they were public schools, they would not have the high teacher attrition rate they have now. If they were actually public schools, they would not have the freedom to choose their students. If they were public schools, there would be democratic oversight of their finances, which there is not. Sorry, Stephen, charter schools are “public” when it’s time to get money, but “not state actors” when they choose to avoid accountability.
To perhaps further cloud the issue:
“However, under existing case law, school districts are not considered state actors under
the Eleventh Amendment, so they may be sued in federal court under the ADEA.”
Click to access law_manual_2-2020.pdf
Consider the Ohio public district school teacher “who had previously been involved in an altercation with another teacher, an argument with school cafeteria employees, an incident in which he swore at students, and an incident in which he made obscene gestures to girl students” prior to making a call to the local radio station complaining about the school board’s proposed dress code for teachers and other professionals…
“Since, under Ohio law, the ‘State’ does not include ‘political subdivisions’ (a category including school districts), and the record shows that a local school board like petitioner is more like a county or city than it is an arm of the State, petitioner is not immune from suit under the Eleventh Amendment. Pp. 429 U. S. 279-281.
https://supreme.justia.com/cases/federal/us/429/274/
p.s. Regardless of its relevance to their status as public schools, you’re right to recognize teacher attrition as a problem afflicting too many charter schools. A thoughtful contribution on that subject here:
https://kappanonline.org/burnout-factories-challenge-retaining-great-teachers-charter-schools/
Stephen, your unalloyed devotion to privatization—despite the fact that 85-90% of children are enrolled in public schools, despite the frequent occurrences of waste, fraud and abuse in the charter sector, despite the high rate of charter closures—is beyond my understanding. Do you ever read the NPE studies of charter closures and charter fraud? Before you invoke what about is, I remind you that there is nothing comparable in the public sector to the A3 online charter scandal that cost the state at least $215 million that ended up in the bank accounts of the A3 founders. Or the ECOT scandal in Ohio, which cost taxpayers $1 billion over 20 years for low-quality schooling.
So did some religious entity grant their secular licenses to operate as a state agency or have these judges lost their collective minds?
The Supreme Courts of Washington State and New York State have ruled, charter schools are actually private schools because they fail to pass the minimum test for being genuine public schools: THEY AREN’T RUN BY SCHOOL BOARDS WHO ELECTED BY, AND THEREFORE ACCOUNTABLE TO, THE PUBLIC.
The legal litmus test for a school to qualify as a public school is that its board must be elected by the public.
Schools whose boards aren’t elected by the public are legally private schools.
“The legal litmus test for a school to qualify as a public school is that its board must be elected by the public.”
Ah, so you believe there are no public schools here in Boston?
Stephen Ronan, as noted in previous posts, there are many schools that are part of free, public education throughout the country that are not run by elected boards.
Examples include state (public) schools for hearing or visually impaired, state schools focusing on a particular subject (such as math and science or the arts). There also are public schools in a number communities, including New York, Boston and other cities and counties, that are not run by boards elected by all adult members of the community.
In some states including Washington, Wisconsin, Ohio and Minnesota, high school students are allowed in certain circumstances, to take all or part of their courses on college campuses. This also is part of free public education. These colleges and universities are not run by boards elected by all adult members of the community.
These are facts. But we live in an era which some reject facts.
I understand that many who post here strongly opposed the idea of chartered public schools. But we might make more progress is we could agree on facts.
Charter schools would be far better if they were authorized and overseen by local schoool boards.
For decades, School districts have been allowed to create new options.
Al Shanker turned against charters. He wrote a column saying that charters and vouchers were the same thing. More than 90% of charters nationally are nonunion. That’s why red states love them.
Diane: “Charter schools would be far better if they were authorized and overseen by local schoool boards.”
Here in Massachusetts we have some that are, some that aren’t. Commonwealth charter schools are authorized and overseen by State officials. While for Horace Mann Charter schools, there is additional local oversight. For those:
“The school committee and local union must approve a charter application;
“Teachers must continue to be members of the union;
“The school committee of the school district in which the school is located shall remain the employer for collective bargaining purposes under chapter 150E (the state law regarding public employee labor relations);
“The minimum salary and benefit requirements as stipulated in the district’s collective bargaining agreement must apply;
“All union and school committee work rules apply to the extent specified in the charter;
“The school’s funding must be appropriated by the district at a level that is consistent with the allocation to other schools in the district;
“A school must give enrollment preference to students actually enrolled in said school on the date the charter application was filed, their siblings, and then to other students enrolled in the public schools of the district where the school is located;
“The school committee and local union must approve a charter renewal application; and
“The school committee must develop a plan to disseminate innovative practices of said charter school to other public schools within the district.”
https://www.doe.mass.edu/charter/guidance/2003-1.html
If anyone has argued that Horace Mann charter schools in Massachusetts are “far better” than Commonwealth charter schools, it has, thus far, escaped my attention.
The Ohio Supreme Court cited as reasoning, the records of charter schools are protected as business proprietary info.
IMO, the main issue is who owns the assets.
Then why are they receiving tax dollars?
Because libertarians like Charles Koch whose ALEC drafts state law and Bill Gates who self-appointed as an oligarch to take over the local tax-funded education of the middle class and poor are barbarians – not at the gates but, within the gates.
Diane’s book, Slaying Goliath, Jane Mayer’s Dark Money and Nancy Maclean’s Democracy in Chains show America’s shame. Lincoln warned the nation against men like the above and Art Pope, Uihlein,
Foster Freiss, Tim Busch, etc.
In a number of communities, district public schools are NOT run by elected school boards. This includes NYC, Boston and Chicago (though things are changing in Chicago).
For decades, there have public schools serving for example deaf and blind students that are not elected by school boards.
Some tribally controlled public schools are not run by elected school boards.
More than 95% of school boards are elected. Imperfect as they are, democratic elections are far better than self-selected corporate boards or boards run by family and cronies but using public funds.
The “public” schools in NYC and a number of other cities are NOT run by boards elected by the public.
Moreover, a number of states have public special schools serving specific populations that are not run by locally elected boards. This includes
* schools serving students who are visually or hearing impaired.
* Statewide art or math schools.
You have a lot of excuses for corporate-run charters that deplete the resources of real public schools.
Their real purpose, as the Waltons (your funders) know, is to eliminate teachers unions.
An internet search indicates that the most well known Roger Bacon school is Catholic (Cincinnati). Bacon was a Franciscan friar. He spent a good portion of his life, up until his death, living in a Franciscan order
Baker Mitchell was honored by the John Locke Foundation which Sourcewatch describes as an affiliate of State Policy Network (Koch). The John Locke Foundation which Sourcewatch describes as being funded (80%) by Art Pope gave Baker the John William Pope award.
Art Pope is on UNC’s Board of Governors. This summer a controversial decision by the Board brought intense media attention focused on charges of racism against the board.
CNN Health (5-1-2018). “A Catholic High School Tells Girls to Cover Up at Prom or Get a Modesty Poncho” (Dearborn, Mich.)
Taxpayers have made Catholic organizations the 3rd largest U.S. employer. Americans should be alarmed about the likely extension of the Biel v. St.James Catholic school SCOTUS 2020 decision.
Whether a reporter’s revelation is about tax-funded private charter schools or tax-funded religious schools, American taxpayers need to understand that they have been made complicit in situations that echo Middle Eastern clerical/government rules for subjugation of girls.
I realize that I am about to go off topic, but your reference to prom attire struck a nerve. Why is it that boys go to prom conservatively dressed in suits or tuxedos while girls are somehow expected to show up wearing attire which seems to get more and more revealing each year. When we dropped my daughter and her date off at the restaurant where her prom was held, I thought I was looking at a group of hookers. Necklines plunged, skirts were slit way up, and everything was skin tight. For the record, I don’t think a women’s attire should determine how she is treated. However, it seems to me, that by selling these type of outfits to teenage girls, we are encouraging them to think of themselves, not as individual human beings, but as sex objects. Girls should be dressing to please themselves and not some teenage boy.
C
I’ll list a country where women don’t have equal rights AND where clerics/government pass laws like burka requirements.
Then, you list a country where women have equal rights and there are no modesty laws for women’s attire. We’ll go round robin with the listing. Or, we can shorten the process by observing within the U.S., the gender roles in strict religious communities like the orthodox Jewish sect and those that practice polygamy.
Picture in mind’s eye, a typical photo of people in western democracies, focus on the women’s attire. Using critical thinking, compare economic, social, political, and cultural variables that distinguish the U.S. from those other countries. I’ll prime the pump. In 2021, the U.S. elected its first woman V.P. (never has had a female President). The state of N.Y. just ended up with its first female governor in hundreds of years. Young women recognize their path to advancement in the U.S. differs from the route available to men. Women make accommodations to get recognition so that they can ride shirttails to advance. Sadly, the system fosters erosion of women’s confidence. And, it has negative impact on 90% of men as well.
I want to think that the U.S. can be better to its daughters and sons by voting for Democratic leaders like AOC, Nan Whaley (Ohio politician), etc., and, that when they serve on jury duty, they select a female foreman, and that they will abandon religions that treat women as second class citizens, and that in their public institutions like public universities they demand equal representation on governing boards….
If they are successful with their education policy, Bill Gates, Charles Koch and Walton heirs will destroy the career that has lifted the most women into financial independence- teaching.
No more tax dollars for them since their employees are beyond the reach of the 14th amendment.
[…] Which brings me to this case, discussed recently on Diane Ravitch’s blog. […]
Thanks for the link.
“Charter schools- state actors when it suits the schools and the judges”
It’s the way that the Hoover Institute (Fordham’s Chester Finn), Bill Gates, Walton heirs, AEI and Charles Koch want it. CAP, which is in league with them, are the left’s betrayers.