Charter schools have managed to occupy an unusual spot in the spectrum of educational institutions: When it’s time to get public funding, they insist they are “public schools.” But in court cases where charters were fighting to be exempt from state laws governing employment practices or financial accountability, they insist they are not “state actors.” It is logically impossible to be both a public school but not a state actor.

In a current court case, a North Carolina charter chain wants the courts to declare that its schools are not state actors because they enforce policies for girls’ dress that is inconsistent with state and federal law.

Public schools are state actors. In effect, this charter chain wants to be declared “not a public school” even as it continues to be publicly funded. Why? It wants to preserve its right to ignore state and federal laws against discrimination.

Peter Greene explains the background of this case:

In the regularly pro-choice Wall Street Journal, Baker Mitchell and Robert Spencer want to complain about a court decision declaring that their charter schools are, in fact, public schools. This, they warn, “imperils the charter school movement.” Their complaint is a big pile of deep fried baloney.

The case that prompted this whinging

One of the charter schools operated by Roger Bacon Academy was sued by some parents over a dress code requiring girls to wear skirts (or skorts–but none of that pants-wearing stuff, ladies). Such a big deal. Who knew?

“We’re a school of choice. We’re classical in our curriculum and very traditional. I believe that the more of the traditional things you have in place, the more they tend to reinforce each other,” he said in a phone interview. “We want boys to be boys and girls to be girls and have mutual respect for each other. We want boys to carry the umbrella for girls and open doors for them … and we want to start teaching that in grammar school.”

RBA is owned and operated by Baker Mitchell, Jr., 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. Mitchell (now in his early eighties) thinks the rule is great:

The case bounced up through the various court levels until it landed in front of the full panel of the Fourth Circuit Court of Appeals, which declared that the rule was junk and had to be thrown out. Not a worthwhile call-back to what one dissenting judge called “the age of chivalry” as the majority noted such an age was also the age “when men could assault their spouses” and that chivalry “may not have been a bed of roses for those forced to lie in it.”

Nor did the court accept the argument that girls were still getting good grades. “We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment.”

So what’s the big deal? (Spoiler alert: that state actor thing)

Mitchell and Spencer are not whining about the loss of their ability to require girls to show their legs. They protest that the policy was created by parents; well, so was the lawsuit, so that hardly seems like a useful point. And it’s not the main concern,

The case hinged on the question of whether or not charter schools are “state actors” aka actual public schools. The court said, “Yes, they are.”

Mitchell and Spencer complain that no court has ever done such a thing and therefor: The Fourth Circuit’s finding appears to have been based on little more than the convention of calling charters “public charter schools” and their being mostly funded by public sources.

This is kind of hilarious, because the “convention” of calling these school public was created entirely, and purposefully, by the charter industry and its supporters. They have insisted loudly and often that charter schools are absolutely public schools, and have engaged in uncountable arguments with anyone who dares to say otherwise. Of course, they have also frequently insisted that they are private businesses when it’s convenient for fending off state scrutiny or grabbing PPP pandemic relief money.

And despite Mitchell and Spencer’s apocalyptic warnings, you know who applauded the court’s ruling?

The National Alliance for Public Charter Schools. The importance of this case could not be overstated, as it was the first time a federal appellate court considered whether public charter school students deserve the same constitutional civil rights protections as district public school students. The en banc court clearly and unequivocally affirmed that charter schools are public schools and, accordingly, must be bound by the US Constitution. Moreover, public charter school students have the same constitutional and civil rights as their district public school peers.

Galen Sherwin, ACLU senior staff attorney, observed that the ruling was important because The court rightly recognizes that ruling otherwise would leave states free to establish parallel, privately operated public school systems in a constitution-free zone, free to implement race segregation, religious discrimination, etc.

So what are they really, really upset about?

The tell comes a little further down the piece.
The ruling comes at a time when the charter-school movement is growing. Oklahoma’s attorney general recently issued a legal opinion stating that religious organizations must be allowed to operate charter schools in the Sooner State. A key aspect of the opinion was a finding that charter schools are not state actors and, therefore, the Constitution’s Establishment Clause doesn’t prohibit the inculcation of religious values, as it does in government-run schools.

If charter schools are state actors, then that might get in the way of expanding religious charters. And sure enough– we find amicus briefs filed by Catholic Charities of the Diocese of Arlington VA, Notre Dame Law School Religious Liberty Clinic, the Jewish Coalition for Religious Liberty, and the Religious Freedom Institute. “These experts,” say the writers, confusing advocacy and lobbying with expertise, say the Fourth Circuit’s ruling would undercut charter schools.

Well, no. They would undercut the extension of private religious organizations into a sweet, sweet chance to get their hands on public tax dollars while still enjoying unregulated freedom to indoctrinate some students into their religion while also discriminating against whatever students they choose to discriminate against in a taxpayer-funded Constitution-free zone.

Are we done yet?

Of course not. The school has petitioned the Supreme Court to hear their appeal. It invokes the 14th Amendment and features this kind of flag-waving:


North Carolina charter schools—like many throughout the Nation—build upon a critical insight: Empowering private entities to operate publicly funded schools with minimal government oversight supercharges educational innovation and expands parental choice. The decision below profoundly threatens this model.

“Supercharges innovation.” Sure. Making girls wear skirts is one hell of a supercharged innovation. My usual offer stands–name one educational innovation that has come out of the modern charter school sector.

Mitchell and Spencer want you to know that damn ACLU is behind this case, but they aren’t exactly being represented by a Mom and Pop firm. Aaron Streett is an attorney with Baker Botts, a multinational law firm (where both Amy Coney Barrett and Ted Cruz once worked), and that he’s the chair of their Supreme Court and Constitutional Law Group. Streett says that the majority opinion “contradicts Supreme Court precedent on state action…and limits the ability of parents to choose the best education for their children.”

The argument is simple enough–we are not a public school, so we should get to do whatever the hell we want (and be paid by taxpayer dollars while we do it).

It’s a tough call for the charter biz–if they aren’t public schools, then at this point they really aren’t much different from private voucher schools, so what’s the point of them? But if they want to market themselves as public schools, they can damn well operate under public school rules.

Who knows if SCOTUS will hear this, or what they will decide. But regardless of how things end up, it looks like the charter movement’s days of being able to have things both ways may be coming to an end.

Kevin Welner, who is both a lawyer and a professor of education policy at the University of Colorado at Boulder, wrote about these issues on Valerie Strauss’s Answer Sheet blog last June, after the U.S. Supreme Court ruled that Maine could not exclude two religious schools from state funding when it provided public funding to other private schools, even though the religious schools openly discriminate against LGBT students, families, and staff, as well as non-Christians. The case is called Carson V. Makin.

Welner suggests that the Maine case may erase the line between charter schools and vouchers.

Welner wrote:

If charter schools are state actors, they cannot engage in religious teaching or discrimination. The Peltier litigation did not, however, involve any claim by the school that its sexist dress code arose out of protected religious beliefs. If religious-liberty claims were to be asserted around a comparable policy adopted by a charter school run by a religious organization, the state-action inquiry should be very similar, if not identical, and the charter school should be prohibited from engaging in discrimination.

But as today’s Carson v. Makin decision illustrates, the introduction of free-exercise protections could greatly complicate the overall analysis. If courts side with a church-run charter school, finding that state attempts to restrict religiously infused teachings and practices at the school are an infringement on the church’s free-exercise rights, then the circle is complete: Charter school laws have become voucher laws.

If the Supreme Court hears the Peltier case, if it decides that charter schools are not state actors, if charters may discriminate against girls, LGBT students, and non-Christians, then as Welner says, charters are no different from vouchers. But if they are not state actors, then charter schools are not public schools. But they are free to discriminate against any group, without regard to federal law. And they are free to teach religious doctrine and to close their schools to non-believers. States will then be directly funding schools that teach religious zealotry and openly engage in discrimination.

A loss for American democracy, but a victory for Donald Trump, who appointed three religious extremists to the Supreme Court; Mitch McConnell, who refused to allow President Obama to fill Justice Scalia’s empty seat on the Court after the Justice died in March 2016 (on the absurd grounds that it was too close to a presidential election), as well as his rush to allow Trump to name Amy Coney Barrett to fill Justice Ruth Bader Ginsburg’s seat only weeks before the 2020 election; the far-right wing Leonard Leo and the Federalist Society, which selected the judicial candidates for Trump. And while it may be impolitic to say so, I blame Justice Ruth Bader Ginsberg for refusing to resign her seat in 2014 or 2015, when Obama would certainly have been able to replace her. She had had four bouts with pancreatic cancer, and good reason to step down and give Obama a chance to replace her. Instead she stayed on and died at age 87, gambling that Hillary Clinton would replace Obama. She lost her bet, and the nation has a Supreme Court that is imposing a deeply reactionary agenda.