Supreme Court Declines to Hear Charter Case
On Monday, June 27, 2023, the U.S. Supreme Court (SCOTUS) announced it was declining to take up the Peltier versus Charter Day School (Peltier) case from North Carolina. The defendants in the case were asking SCOTUS to determine that charter schools are not “state actors” and thus not subject to federal constitutional protections regarding the rights of students, families, and staff. Charter stakeholders closely watched the case.
Had SCOTUS heard the case and determined charter schools are not state actors, a host of problematic issues would have emerged for the sector. This decision avoided the risk of SCOTUS hearing the case and establishing a national finding that would have upended the widely held view that charter schools are state actors. The decision does not affect a parallel legal conflict building in Oklahoma, where a state authorizing commission approved a religious charter school this month.
National charter school groups were quick to praise the Court’s discretion. A statement from Nina Rees from the National Alliance for Public Charter Schools (NAPCS) was quoted in Chalkbeat:
“We are pleased that the Supreme Court has declined to hear the case, allowing the Fourth Circuit’s decision to stand,” Nina Rees, the group’s president and CEO, said in a statement. “The actions of the high court affirm that as public-school students, charter school students are entitled to the same federal protections as their counterparts who attend district schools.”
Karega Rausch, from the National Association of Charter School Authorizers (NACSA), released the following statement:
“The National Association of Charter School Authorizers (NACSA) has consistently affirmed that charter schools are public schools—free and open to all—and are state actors, ensuring federal equal protection for students. Charter school students must continue to enjoy the same civil and constitutional rights and protections as any peer attending a traditional district school.”
You can read more coverage of the decision to deny cert. to the Peltier case in The Hill and Reuters.
state actors. As such, their students enjoy civil and constitutional rights that a non-state actor would not convey to its students. The SCOTUS decision leaves the country legally where we were a few months ago. There could be ongoing legal challenges in different Circuits, examining different sets of facts, that could lead to varying decisions on charter schools’ state actor status from state to state.
While litigation on these issues is likely to reemerge, state charter school laws can be modified to align charter school requirements with tests of state-actor status that courts may apply later. For example, Colorado passed legislation this spring requiring charter school governing boards to take an oath similar to that taken by other public officials. The language was included in the state’s budget and required charter board members to take the oath and report it to the state this summer.
Policies like the new public official oath are potentially helpful if the government actor status of Colorado charter schools is later challenged in court. Other changes can be made in state laws to align with the legal tests used to determine state actor status.
Authorizers can also take steps in charter contracts to reinforce the obligations of charters to be state actors and to act like them in ways that protect students’ rights. The NN4DA is partnering with other groups and beginning discussions with policy experts to explore how law, policy, and contracts can be strengthened to protect the state-actor status from being overturned.
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Oklahoma Religious Charter School Controversy
Not Affected by SCOTUS Decision
Meanwhile, the approval of a religious charter school in Oklahoma will continue to generate legal conflict and litigation. The Oklahoma developments are not directly affected by Monday’s SCOTUS decision. The legality of a religious charter schools is not directly related to the question of state-actor status, and instead touches on other legal theories that are being debated nationally about the role of religion in the public sector.
Kate Cohen wrote a commentary outlining the implications of religious charter schools. As Cohen explains, if we have religious charter schools, they are likely to be able to act on their deeply held religious beliefs, including by teaching their beliefs as truth and making discriminatory personnel and admissions decisions.
Despite the unsettled nature of the question of state actor status following the SCOTUS decision on the Peltier case, different legal tests and arguments are raised by religious charter schools.
As these issues develop over the next few years, those who support the public nature of charter schools (like the NN4DA) and those working to maintain the non-sectarian nature of charter schools will have work to do on different levels. The NN4DA is tracking these issues and convening an NN4DA Work Group on the Public Nature of Charter Schools. To learn more about that group and its monthly meetings, please contact Alex Medler directly at alex.medler@nn4da.org.