U.S. Supreme Court can protect charter schools
WASHINGTON — If opponents of expanded school choices would devote to improving public education half the ingenuity they invest in impeding competition from alternatives to the status quo, there would be less demand for alternatives. That demand would be strengthened by a Supreme Court decision that charter schools are not “state actors,” and hence can present pedagogical and cultural choices without being vulnerable to suffocating litigation.
On Friday, the court was to decide whether to hear a case that could protect charter schools as laboratories of innovation. Charters currently serve more than 3.7 million pupils in 7,800 schools in 45 states and the District of Columbia. Charters are publicly funded, open to all and tuition-free. Being non-unionized, they are exempt from much of the stultifying micromanagement and uniformity that narrows parental choices.
Charter Day School is a private, nonprofit North Carolina corporation that operates charters offering “classical, traditional-values-based” education, with attention to manners: CDS’ petition to the court informs it that “‘Yes, Ma’am’ and ‘No, Sir’ are expected.” To foster classroom discipline and mutual respect among boys and girls, it has a parent-designed dress code. For this, it is being sued.
Three students and their parents or guardians, who voluntarily chose to enroll in a CDS school, say the requirement that girls wear jumpers, skirts or skorts violates the 14th Amendment’s guarantee of “equal protection of the laws.” Really.
CDS can be subject to such a suit only if it is deemed not a private entity but a “state actor.” The U.S. Court of Appeals for the 4th Circuit offered three flimsy reasons for saying charters are state actors: Charters are called “public” schools. North Carolina has delegated to CDS a portion of its constitutional obligation to educate the state’s children. And because CDS is performing a function “traditionally and exclusively” reserved to government.
The 4th Circuit is at odds with other circuits, which have affirmed three contrasting propositions: State funding is insufficient to transform an entity into a “state actor.” Particular behavior is not state action unless the state compels or coerces it. And centuries of private education refute the proposition that providing education is “traditionally and exclusively” a government function.
The 4th Circuit’s 10-6 blunder elicited from Judge Harvie Wilkinson III a dissent as demolishing as it was genteel: The dress code serves the school’s educational philosophy. To condemn it as illegally discriminatory and a violation of the equal protection guarantee is to “drape a pall of orthodoxy over charter schools,” nullifying their purpose, which is to provide educational heterodoxy.
The circuit majority’s opinion, which “is all about conformity,” is symptomatic of the “calcification” of public education. The dress code is denounced as demeaning to women. But CDS’ approach to decorum should be neither legally banished nor legally imposed. The circuit’s majority might disagree with CDS’ values, but that is no reason to “stretch the 14th Amendment to stamp out the right of others to hold different values and to make different choices” or “to extinguish the vibrancy provided by school choice.” Wilkinson continued: “It is said that dress codes are themselves coercive and antithetical to student choice. That misses the point. Preserving variety is the very reason to have a menu. You need not eat, or even like, everything on offer, and others’ tastes may well differ from your own. Castigating the chef for including salmon as an option (or a fellow customer for ordering it) makes little sense when you can order steak for yourself. … No one is forced to go to a charter school. … While CDS may not suit the tastes of some, there should be no problem with letting others make that choice.”
The attack on CDS’ school uniforms actually is, Wilkinson notes, an insistence on uniformity, “stomping out any variance at odds with modern sensibilities.”
Charters are so popular that the public education establishment must attack them indirectly, by what Wilkinson calls “the slow strangulation of litigation.” Unless the Supreme Court rescues charters from the “state actor” designation, the argument that sex differences in dress codes violate “equal protection” will morph into attacks on single-sex charters, along with bathroom or sports policies based on biological sex. Discussions of religion will provoke First Amendment establishment clause challenges.
Only the Supreme Court can protect charters from progressives who, ever eager to break all institutions to the saddle of government, pursue this aim while praising a predictable casualty of it, true diversity.