Friday, September 16, 2022

Charter Dress Code Case Pushing For SCOTUS. Here's Why We Should Care

A dress code case with larger implications for the charter school industry is not done yet; charter profiteer Baker Mitchell has petitioned the Supreme Court to uphold his right to impose sexist dress codes

How did we get here

In North Carolina, Charter Day School back in 2016 was sued by parents who objected to a dress code requiring girls to wear skirts, jumpers, or skorts. Charter Day School is part of the network of charters operated by Roger Bacon Academy, one of the charters that focuses on a "classical curriculum" in a "safe, morally strong environment," which meant, apparently, none of those pants-wearing girls in their school (It also supposedly means things like sentence diagramming in Kindergarten and Latin in 4th grade).

RBA is owned and operated by Baker Mitchell, Jr. (an electrical engineer, not an educator), one of the titans of charter profiteering. Back in 2014, Marian Wang profiled the "politically-connected businessman who celebrates the power of the free market," and how he perfected the business of starting nonprofit charter schools and then having those schools lease their buildings, equipment, programs, etc from for-profit companies owned and operated by Baker Mitchell, Jr. That's where the Roger Bacon Academy, a for-profit charter management company comes in.

In 2019, a federal judge passed down the ruling that any public school in the country would have expected-- a dress code requiring skirts for girls is unconstitutional. The school quietly retired the item in the dress code.

But that wasn't the end of it. In August of 2021, the U.S. 4th Circuit Court of Appeals appeals court tossed out the 2019 ruling--sort of-- in a 2-1 ruling.

The two judges, both Trump appointees, ruled that contrary to the assertion of the lower court, that charter schools should not be considered state actors, and are therefore not subject to the Equal Protection Clause of the 14th Amendment. The decision pointed to the larger issue in the case--deciding whether or not charter schools are public schools.

The federal appeals court was clear: Charter schools are not public schools. They are not state actors.

But wait--we're not finished

That decision was decided by a three judge panel. The appeals court, in July of 2022, issued an en banc (meaning the whole court and not just a panel) reversed the panel decision.

Galen Sherwin, the senior staff attorney at the ACLU Women's Rights Project, shared some of the details on Twitter. The defendants trotted out a "parade of horribles," which the court rejected. This ruling will not somehow stifle innovation. It will not threaten HBCUs.

Sherwin added that the skirt rule violates equal protection because it's based on the old notion that "girls are fragile and require protection by boys." Judge Wilkinson, who was part of the three-judge panel in the previous decision, lamented the end of the "age of chivalry." The majority noted that such an age was also the age "when men could assault their spouses" and that chivalry "may not have been a bed of roses for those forced to lie in it."

Sherwin reports that the court rejects the notion that the dress code was okay because it was oppressive to both genders. Discriminating against both men and women, the court notes, "does not eliminate liability, but doubles it."

And Sherwin passes on a great note from Judge Keenan (the 1 on the original ruling) who separately wrote against the argument that the code wasn't harming girls because they still got good grades. “We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment." "Nevertheless she persisted" apparently does not excuse whatever she must persist in the face of.

Kudos also to Judge Wynn who, Sherwin reports, "says the dissent's comparing school choice to ordering steak or salmon at a restaurant 'leaves a bad taste in the mouth. Subjecting girls to gender discrimination that causes lasting psychological damage is not the same thing as ordering fish.'"

Because of the underlying issue, many in the charter school biz lined up against Mitchell. 

The National Alliance for Public Charter Schools applauded the ruling:

The importance of this case could not be overstated, as it was the first time a federal appellate court considered whether public charter school students deserve the same constitutional civil rights protections as district public school students. The en banc court clearly and unequivocally affirmed that charter schools are public schools and, accordingly, must be bound by the US Constitution. Moreover, public charter school students have the same constitutional and civil rights as their district public school peers.

Sherwin tweeted a sadly insightful analysis:

The court rightly recognizes that ruling otherwise would leave states free to establish parallel, privately operated public school systems in a constitution-free zone, free to implement race segregation, religious discrimination, etc.

Which is a fairly good summation of what the voucher crowd is working hard to do anyway. The Supreme Court has ruled in favor of allowing the state to spend tax dollars on discriminatory education. And their "education freedom" rhetoric was echoed in this case. Aaron Streett, representing Charter Day School argued that the school is not a state actor, and that status "provides leeway for policies that some might deem discriminatory, but that's the spirit of individual liberty."

You call it discrimination, but hey--I call it freedom.

And now for the next act

Baker Mitchell(now 82), still thinks it's a good rule:

“We're a school of choice. We're classical in our curriculum and very traditional. I believe that the more of the traditional things you have in place, the more they tend to reinforce each other,” he said in a phone interview. “We want boys to be boys and girls to be girls and have mutual respect for each other. We want boys to carry the umbrella for girls and open doors for them ... and we want to start teaching that in grammar school.”

But that's not why they petitioned the Supremes.

Aaron Streett is an attorney with Baker Botts, a multinational law firm (where both Amy Coney Barrett and Ted Cruz once worked), and that he's the chair of their Supreme Court and Constitutional Law Group. Streett says that the majority opinion "contradicts Supreme Court precedent on state action...and limits the ability of parents to choose the best education for their children." After the ruling came down, Streett played coy about whether they would appeal or not; now we're past coyness.

The appeal is going straight after the underlying issue of the case

In its petition, the school argues the ruling by the appeals court is flawed because it identifies Charter Day School as a state actor. The school argues it is a privately run school that receives public funding through its charter, and therefore is not a government-run entity.

"The (court of appeals) decision ... profoundly threatens this model," said a statement from school officials in a Monday news release. "This holding undoes the central feature of charter schools by treating their private operators as the constitutional equivalent of government-run schools."

So, says the school, we are most definitely not a public school. Meaning we should get to do whatever the hell we want.

Will SCOTUS take on this case? These days, who the hell knows? 

It matters to the charter industry, which has in the past couple of years been left behind by many old friends who once viewed charters as a nice foot in the door, but believe now that the pandemic has given them the chance to kick the door down, so "Thanks for the help, charter schools, but we have a chance to get the vouchers we always really wanted, so good luck to you." 

For people still actually invested in the charter industry (both figuratively and literally) this continues to be a strategic puzzler. Do they insist on holding onto the "public" descriptor for charters because it's a good marketing tool, or do they insist they are private schools so that they can compete with private voucher-collecting schools by also discriminating as they wish? 

Meanwhile, the students who originally wanted to wear pants are now young women. But they were never really the most important part of this case. The rest of us should stay tuned for the next chapter.

1 comment:

  1. Yep. I worked a stint in private schools, and they could impose any dress code they chose because they were private. However, when charter schools claim to be public, they have no right to impose such nonsense. Granted there are laws against 'indecent exposure', however what we're talking about is restricting student and parent choice.

    Once I was a 'boy scout'. We had uniforms. The purpose was to train us to follow orders and respect a 'line of command'. Somehow, as a former scientist and teacher, I don't think that leads to innovation and philosophical advances. I'd rather watch my students grow and bloom in their own way.