By Mitch Kokai, Carolina Journal

The skirts will grab the headlines, but there’s another piece of a court fight over a charter school dress code that deserves more attention.

Operators of Brunswick County-based Charter Day School hope the U.S. Supreme Court will agree this fall to take up their case. They are appealing a June decision from the 4th U.S. Circuit Court of Appeals. The appellate court rejected a portion of the school’s dress code requiring that girls wear skirts.

Most media coverage of the case has focused on the skirt mandate, along with school leaders’ justification for it. Senior 4th Circuit Judge Barbara Milano Keenan spoke for a majority of her colleagues when she claimed the dress code was “based on blatant gender stereotypes about the ‘proper place’ for girls and women in society.”

Regardless of your opinion about mandatory skirts for female students, another piece of the 4th Circuit ruling should cause concern. Keenan and fellow members of a 10-6 Appeals Court majority labeled Charter Day School a “state actor.”

“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,” wrote Judge Marvin Quattlebaum in dissent. “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.”

The “state actor” designation also has attracted attention from the John Locke Foundation, which oversees Carolina Journal. A Locke amicus, or friend-of-the-court, brief filed Oct. 14 with the U.S. Supreme Court explains why.

“If charter schools are state actors, then charter schools will become little more than another branch of traditional public schools,” wrote attorney Dan Gibson. “That result would end the independence amicus have advocated and is enshrined in North Carolina law.”

Parent Bonnie Peltier filed the original federal lawsuit challenging Charter Day School’s dress code. Her attorneys have pushed the argument that charter schools should be considered state actors.

“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.”

More than 3.4 million students attend nearly 7,700 charter schools across the country. The 4th Circuit’s interpretation of charter schools as state actors could impact them all.

“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.”

“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,’” Gibson wrote.

Independence leads charter school operators toward innovation and “unique educational choices” for parents and families. For Charter Day School, the unique choice includes its dress code, Gibson argued.

“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.”

“Removing that choice removes parents and students’ choices to obtain a unique education,” according to the Locke 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.”

Peltier’s lawyers will make their pitch to the U.S. Supreme Court next month. We can expect emphasis on the skirt mandate and its propriety in 21-century society.

But the future independence of charter schools — in North Carolina and nationwide — depends on the outcome of a separate dispute. The U.S. Supreme Court can decide whether to designate charter schools as state actors or preserve their independence. Fans of parental school choice should pay close attention.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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