US solicitor general urges Supreme Court to reject dispute over NC charter school skirt rule

U.S. Solicitor General Elizabeth Prelogar recommends that the U.S. Supreme Court reject a case involving a disputed skirt requirement for girls attending a charter school in Brunswick County.

Prelogar agrees with a 10-6 majority on the 4th U.S. Circuit Court of Appeals that Charter Day School is a “state actor” in the context of the disputed requirement. The solicitor general filed her brief in the case Monday, more than four months after the U.S. Supreme Court sought her input.

“The court of appeals correctly held that CDS is a state actor when it enforces its student dress code,” Prelogar wrote. “Public charter schools in North Carolina are units in the public-school system that the State created to fulfill its constitutional duty to offer a free, public education to its residents. In adopting and enforcing a student code of conduct, CDS is carrying out the State’s constitutional obligation and exercising authority conferred by the State to operate a state-chartered public entity. CDS is a state actor when it acts in that capacity.”

“The court of appeals’ decision does not conflict with any decision of this Court or another court of appeals,” Prelogar added. “The state-action inquiry is notoriously fact-specific, and the purportedly conflicting decisions on which petitioners rely are distinguishable because they involved different types of entities, different state-law regimes, and different challenged actions. And even if the question presented otherwise warranted this Court’s review, this case would be a poor vehicle for considering it: The resolution of the question presented will not affect CDS’s obligation to comply with the U.S. Constitution, and may not affect the ultimate disposition of this case. The petition for a writ of certiorari should be denied.”

The U.S. Supreme Court agrees to take a case when it grants a petition for a writ of certiorari.

School choice proponents say the “state actor” label applied in the Charter Day School case could subject charter schools across the country to more harmful government regulation.

The Brunswick County-based charter school is asking the U.S. Supreme Court to reverse a June 2022 decision from the 4th U.S. Circuit Court of Appeals. Appellate judges rejected the school’s dress code. The 4th Circuit also ruled that the private operators of the publicly funded charter school were “state actors.”

The John Locke Foundation filed an amicus, or friend-of-the-court, brief in October 2022 urging the Supreme Court to take the case. Locke’s brief focuses on the “state actor” issue.

“This case is important to amicus because it addresses a question fundamental to charter schools’ relationship with the State,” wrote attorney Dan Gibson, who filed the brief for Locke. “If charter schools are state actors, then charter schools will become little more than another branch of traditional public schools. That result would end the independence amicus have advocated and is enshrined in North Carolina law.”

The case started with a complaint from parent Bonnie Peltier. She objected to Charter Day School’s dress code requiring female students to wear skirts. Peltier’s attorneys argued in a federal lawsuit that a publicly funded school could not adopt that type of policy.

“The specifics of charter schools’ relationship to the State can be difficult to discern,” Gibson wrote. “The Fourth Circuit Court of Appeals misunderstood this relationship. It acknowledged the State does not compel or coerce the policy Peltier challenges. But it held that charter schools are state actors because state law labels them public schools and obligates the state to provide public education.”

“Treating every organization offering services to the public as a state actor ignores the complexity of charter school law and creates a dangerous precedent for other public entities,” the Locke brief added. “Because charter schools operate independently, they are not state actors.”

With more than 3.4 million students attending nearly 7,700 charter schools nationwide, the “state actor” issue has national importance, Gibson argued.

“The principle governing charter schools is that they are ‘held accountable for results — gauged primarily by academic achievement — in exchange for freedom to produce those results as they think best,’” he wrote.

“Charter schools have thrived because of their independence from the state. North Carolina law recognizes the purpose of charter school legislation is ‘to establish and maintain schools that operate independently of existing schools,’” according to the Locke brief. “Independence allows expanded choices for parents and students, creates new opportunities for teachers, increases learning opportunities for students, and fosters different and innovative teaching methods. Treating charter schools as state actors endangers that independence and frustrates these purposes.”

“Independence means charter schools can innovate and offer unique educational choices,” Gibson wrote. “Charter Day School does just that. Its dress code is part of the unique educational experience it offers — an experience that has produced superb results.”

“As is her right, Peltier disagrees with that dress code,” he added. “But Peltier tries to transform her right to disagree into a right to prevent Charter Day School from offering its unique and innovative learning opportunity to other parents and students. If plaintiffs are correct, no charter school can offer a similar policy and no parent or student can choose to attend a similar public school.”

“Removing that choice removes parents and students’ choices to obtain a unique education,” according to the brief. “Almost three and a half million students have chosen charter schools because they are different from traditional public schools. Their independence and innovation is attractive. Treating charter schools as state actors would damage that independence and innovation and foreclose those choices.”

The 4th Circuit’s decision conflicts with U.S. Supreme Court precedent and rulings on similar issues in other federal circuits, Gibson argued. The brief urges the high court to settle the “state actor” issue.

“Delaying addressing this case will have only one result: uncertainty for private institutions providing education to the public with public funds,” Gibson wrote. “Until the [4th Circuit] decision below, the federal circuit courts of appeal uniformly held these schools were not state actors. Now there is dissent, and schools outside those circuits can only guess whether they are state actors or not.”

“This Court should not leave them guessing, its precedent undefended, or this issue of national importance unaddressed,” according to Locke’s brief.

The full 4th Circuit decided the Charter Day School case with a split 10-6 vote.

Senior Judge Barbara Milano Keenan, an Obama appointee, wrote the majority opinion.

“By implementing the skirts requirement based on blatant gender stereotypes about the ‘proper place’ for girls and women in society, CDS has acted in clear violation of the Equal Protection Clause,” Keenan wrote. “We further hold that sex-based dress codes like the skirts requirement, when imposed by covered entities, are subject to review under the anti-discrimination provisions of Title IX.”

Judge Marvin Quattlebaum, a Trump appointee, authored one of two dissents.

“Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor,” he wrote. “The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues.”

Three 4th Circuit judges would have rejected Peltier’s case completely.

“The majority misses the whole purpose of the development of charter schools,” wrote Judge Harvie Wilkinson, a Reagan appointee, in the second dissent. “It has little clue about the problems that led to the formation of the charter school experiment or the function that it serves. Its opinion is all about conformity. It is essentially dismissive of what charter schools might have to contribute, prejudging them as miscreants that must be brought to heel.”

Regardless of the 10-6 split among 4th Circuit judges, the U.S. Supreme Court faces no obligation to take up Charter Day School v. Peltier. If the high court takes the case, justices would consider arguments in the term that starts next fall.

The post US solicitor general urges Supreme Court to reject dispute over NC charter school skirt rule first appeared on Carolina Journal.


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