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Our Opinion: Protect charter school students' civil liberties

Posted on August 12, 2021

OpinionEditorials

Dave DiFilippo cartoon

Families’ fight against a discriminatory dress code will continue, but a court ruling in the case could have earth-shattering implications for students in North Carolina’s public charter schools.

A divided three-judge panel of the 4th Circuit U.S. Court of Appeals ruled Monday that Charter Day School in Leland may have violated Title IX when it forbade girls from wearing pants, but because the school doesn’t qualify as a state actor, the policy doesn’t violate the 14th Amendment’s equal protection clause.

The case, Peletier v. Charter Day School, involves three student families’ ongoing lawsuit against Charter Day and Roger Bacon Academy, a company contracted to operate the school. RBA administrators imposed a dress code that requires girls to wear skirts, jumpers or skorts instead of pants or shorts.

Judges Marvin Quattlebaum and Allison Jones Rushing sent the case back to U.S. District Court to consider the plaintiffs’ Title IX claim. For the national press and many legal observers, the question of whether Title IX precludes dress codes that treat girls differently from boys is the main takeaway. For us, the primary issue is whether charter school students will be unceremoniously stripped of all constitutional rights.

In the published 4th Circuit opinion, Quattlebaum determined the state action doctrine doesn’t apply to charter school dress codes. He described charters as “nominally public schools” under state statutes.

“Although charter schools must adopt policies governing student conduct and discipline, the state does not supervise the content of those policies,” Quattlebaum wrote. “Relevant here, there is no state law or charter provision requiring the imposition of a dress code.”

Defendants must be deemed state actors in order for civil rights claims to prevail. Government institutions can be held liable, but the Constitution doesn’t apply to private organizations.

Quattlebaum sought to confine Monday’s ruling to the issue at hand, writing that the court’s “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...”

That disclaimer provides little reassurance. Having already decided North Carolina’s charter schools are exempt from the 14th Amendment, the 4th Circuit isn’t likely to contradict itself by determining the publicly funded, privately managed schools are simultaneously bound by every other constitutional obligation.

If charter students don’t have 14th Amendment rights at school, how much longer can they expect to enjoy the same First Amendment rights as their traditional public school counterparts?

The First Amendment encompasses much more than the freedom to engage in symbolic speech and political protest in school, which the Supreme Court affirmed in the landmark Tinker v. Des Moines case. It also includes religious liberty. Without the free exercise clause, students could be forbidden from praying, reading the Bible or forming faith-based clubs. Without the establishment clause, schools could favor one faith over others and coerce students to participate in rituals that violate their beliefs.

Future court decisions consistent with the Peletier ruling could all but eradicate the distinction between charter and private schools in North Carolina. That should alarm students, parents, educators and lawmakers.

In a powerful, persuasive dissent, Judge Barbara Milano Keenan argued that Charter Day qualifies as a state actor, stressing that CDS is “a public school created under North Carolina law and funded almost entirely by governmental sources.” She even italicized the word “public” for emphasis.

“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,” Keenan wrote.

While traditional public schools can enforce dress codes and even require uniforms, they cannot make rules that discriminate against female students. Public charter schools should be no different. Parents who believe skirts ought to be mandatory are free to select private schools with such policies. There’s no reason to make taxpayers foot the bill.

Charter schools are intended to serve as laboratories of innovation and can experiment with educational models that aren’t approved for widespread adoption in public school districts. They are schools of choice, with parents opting their children in rather than students being assigned to a campus based on where they live. But families who choose a charter school for its academic rigor or specialized curriculum don’t consent to the premise that their kids’ rights are diminished.

If North Carolina’s largely hands-off approach to charter school oversight justifies the majority’s ruling, then it falls to the General Assembly to tighten the reins, ensuring charters qualify as state actors duty-bound to uphold the Constitution. 

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