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EDITORIAL

Our Opinion: Court protects charter school students’ rights

Posted on June 16, 2022

OpinionEditorials

Dave DiFilippo cartoon

When the full 4th Circuit Court of Appeals struck down a North Carolina charter school’s discriminatory dress code this week, much more than clothing choices were at stake.

A 2-1 panel of circuit judges ruled against the plaintiffs in Peltier v. Charter Day School last August, wrongly finding that a ban on girls wearing pants or shorts couldn’t run afoul of Title IX or the 14th Amendment’s equal protection clause because the school didn’t qualify as a state actor.

RELATED EDITORIAL: Protect charter school students' civil liberties

The state action doctrine determines whether an institution is public or private for purposes of civil rights claims. When federal judges recently blocked Texas and Florida laws regulating social media moderation, they did so because companies like Facebook, Twitter and YouTube are private entities. Adding charter schools to that category would be a disaster for students and parents.

A binding precedent holding that charters aren’t state actors means constitutional law would no longer apply. Unlike their classmates in traditional public schools, charter school students would have no right to free speech, religious liberty or due process on campus.

Students escaped this bleak fate when the 4th Circuit vacated the August 2021 decision and heard the case en banc. Appellate judges ruled 10-6 on Tuesday that North Carolina’s public charter schools are state actors with constitutional obligations.

RELATED STORY: NC charter schools can't require girls to wear skirts

Charter Day, a Roger Bacon Academy school in Leland, sought to position itself as a private entity merely fulfilling a state government contract. That doesn’t jibe with the North Carolina law authorizing charter schools, which declares that each institution granted a charter “shall be a public school within the local school administrative unit in which it is located.”

Senior Circuit Judge Barbara Milano Keenan didn’t fall for Charter Day’s attempts at obfuscation.

“Were we to adopt CDS’ position, North Carolina could outsource its educational obligation to charter school operators and later ignore blatant, unconstitutional discrimination committed by those schools,” Keenan wrote for the majority. “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.”

Three plaintiffs — two of whom are mothers who sued on behalf of their minor daughters — sought to overturn dress code requirements that limit girls to skirts, jumpers or skorts and require boys to wear pants or shorts. The rules are rooted in Roger Bacon Academy’s concept of chivalry, according to court testimony, which regards women and girls as “a fragile vessel” that men and boys must honor and defend.

Two concurrences and two dissents filed with the majority opinion show stark disagreements between the circuit’s 16 judges over just how much autonomy charter schools should have. Dissenting judges noted that charters are schools of choice that no student is forced to attend, while the majority emphasized that they’re subject to state oversight and nearly all of their revenue is taxpayer money.

“Though all agree that this dress code treats girls differently, eminently reasonable minds can and do disagree as to whether it treats them worse,” Judge J. Harvie Wilkinson III wrote in the second dissent. “For every parent that seeks to disparage a dress code like this one as harmful or discriminatory, there is another who would seek it out as beneficial.”

If parents feel skirts are a more appropriate clothing choice than pants, they remain free to impose that requirement on their own daughters.

“No parent can nullify the constitutional rights of other parents’ children,” Judge Keenan rightly notes for the majority, which drew a line in the sand between charter and private schools.

“If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this Court,” Keenan concluded.

The 10-6 decision — consisting of five separately written opinions running a combined 103 pages — was a closer call than it should have been. Yet the 4th Circuit ultimately got it right.

Wilson is home to two excellent charter schools, the Sallie B. Howard School of Arts and Science and Wilson Preparatory Academy. We don’t believe for a minute that administrators at either institution have any designs on curtailing students’ civil rights.

This editorial page is relieved, however, that neither they nor their colleagues at North Carolina’s 202 other charter schools will enjoy the prerogative to do so.

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