Supremes Ask Biden Administration To Chime In On Public Charter Skirts Case

Today we veered just a bit closer to having the Supreme Court decide whether charter schools are public or not.

The case is nominally about a charter school dress code, but not really. The dress code, based on an old white businessman's idea of how to preserve chivalry and frail womanhood, is clearly illegal--but only if charter schools are actual public schools. 

Baker Mitchell, a successful North Carolina charter school profiteer, would like to argue that charter schools are not public schools (or "state actors," the fancy legalese term being used in these cases) and that they in fact exist as what one judge described as a parallel school system in a constitution-free zone. 

So, the case is a big deal because since the dawn of the modern charter era, charters have insisted on the right to call themselves public or not based on which descriptor is most convenient on any given day. 

For the record, I agree with Mitchell to a point. We would both make statements that begin with "Charter schools are not public schools..." but from there they would diverge a bit.

Mitchell: Charter schools are not public schools and therefor we should be free to impose whatever rules we feel like imposing, including those that would be unconstitutional if the government did it.

Me: Charter schools are not public schools and therefor they should receive none of the tax dollars collected to fund public education. Or if they want to be public schools, they could observe all the rules that public schools follow. Or maybe legislators could be honest and say, "In order to fund a completely separate education system, we'll need to raise new taxes to pay for it.

You see the difference.

The current decision on the matter comes from the Fourth Circuit which says, "Yes, they are public." Mitchell and his backers do not like that. So we've been waiting to see if the Supreme Court would like to hear the appeal.

Today, they came back with the answer, "Ummm....."  The court asked U.S. Solicitor General Elizabeth Prelogar to file a brief expressing the Biden administration's view on the litigation and whether the Supreme Court should take up the matter. 

The school's lawyer says this is a good sign because it means they're taking the case seriously, and lawyers of my acquaintance agree. That also likely means that it will be a while before they get around to it. 

There are all sorts of implications here. Making girls wear skirts seems like a dumb hill to fight on, but if it's ruled a charter can impose this kind of archaic "traditional" clearly discriminatory rule, it's not hard to imagine what other archaic discriminatory traditions could be brought back, particularly given the number of wannabe religious charter operators who are backing the appeal.

So now we wait to hear what the Biden administration has to say, and that's not an easy prediction in this case. Then we wait to see what SCOTUS thinks about what the Biden administration says. Given what we've seen in Carson v. Makin and Kennedy and a host of other decisions from this court, it would not shock me to find us eventually winding our way around to "Charter schools can do whatever the hell they want and the public has to foot the bill for it." And the substitution of tradition for actual law that we've seen doesn't bode well here, either. We'll see.