What George Will Missed About That Charter Case

Apparently it's a thing to try to create enough public noise that you might get the Supreme Court to take on your case, so Baker Mitchell has been all over the conservative mediasphere this week bemoaning a Fourth Circuit court decision from last summer that he and his friends are hoping the Supremes will shortly make a decision to hear. 

The case is about dress codes, except that it's really about whether or not charter schools are public schools (that have to follow the same laws as other public schools) or private businesses (that get to exist in a Constitution-free zone).

Baker's has been singing his sad song in several outlets, and somehow he apparently got George Will to play a remix of the original in the Washington Post. Will is a smart guy, but in this piece he mostly repeated the charter's talking points from the case. If someone comes waving this piece in your face, here's what Will gets wrong (you can get the full background of the case itself here). 

There's an opening salvo of lovable Willian snark-- "If opponents of expanded school choices would devote to improving public education half the ingenuity they invest in impeding competition from alternatives to the status quo, there would be less demand for alternatives."

Then a cut to the chase-- SCOTUS needs to find that charter schools are not "state actors" (aka "not public schools") so that charters can present "pedagogical and cultural choices without being vulnerable to suffocating litigation." Because it would be suffocating to have to constantly grant students their constitutional rights or follow other anti-discrimination laws.

Will offers a quick explanation of what charter schools are, and he's almost entirely wrong. Laboratories of innovation? I dare you to name one educational "innovation" that public schools didn't already know (cream students with supportive families). Publicly funded? True. Open to all? Practically speaking, absolutely untrue, unless you add qualifiers like "open to all who would comply with the school's rules and requirements." This one's extra tricky, because the whole point of this continued legal wrangle is to find charters non-public schools so that they can freely decide which students they will not be open to without having to be sneaky about it. Tuition free? Sort of true, unless you happen to choose a charter where, for instance, parents are required to volunteer a certain number of hours.

Being non-unionized, they are exempt from much of the stultifying micromanagement and uniformity that narrows parental choices.

Nope. For starters, some charter schools have unions, and some states have rendered unions virtually powerless. And Will is using a rhetorical trick to suggest what he knows he can't say, because unions are not the source of stultifying micromanagement and uniformity.

Will characterizes the school at the center of the lawsuit as "classical, traditional-values-based" education and oddly highlights "with attention to manners," as if making girls show their legs is a matter of etiquette. And he repeats the claim that the dress code is parent-designed, which I find unlikely, but it's moot anyway--the lawsuit against the dress code also originated with parents, so that's rather a wash.

The plaintiffs say that the dress code violates the 14th Amendment, Will reports. So does the Fourth Circuit Court of Appeals. And Will has a rebuttal for that, which in its entirety is "Really."

Will argues that the basis for calling the charter a state actor are flimsy. Number one is "Charters are called 'public' schools," which is true--and the people who have most often and most vehemently insisted that charter schools are public schools are, in fact, charter school advocates. The have been vocal, vehement, at times pretty cranky about it. But Mitchell and Will would like to pretend that some random person slapped that label on them, rather than the label being argued ad infinitum by an industry that desperately wanted to wrap itself in the mantle of "public" education--but only when it was advantageous to do so.

Will isn't really going to address that point. Instead he's going to point out that public funding does not transform a school into a public actor, and that an action isn't a state action unless the state "compels or coerces it." I skipped law school, but would that mean that nobody can sue a local government for anything ever? Also Will says we've always had private schools, so you can't claim that providing education is "traditionally and exclusively" a government function, and he may have a point there.

He thinks one of the dissents "demolishes" the decision as draping "a pall of orthodoxy over charter schools" whose purpose is to provide "educational heterodoxy," and if that's truly the purpose of charters, then they are largely failing. There's no excuse for stretching the Fourteenth Amendment to "stamp out the rights of others to hold different values and to make different choices," and the school is being picked on for rules "at odds with modern sensibilities," which is an argument that would be right at home in a dissent to Brown v. Board. The dissenter and Will both glide over the fact we're talking about different values and choices about how to treat other people and make them behave, not, as the dissenter frames it, whether to order steak or salmon at a restaurant. In his example, students are the steak and salmon. 

Will suggests that charters are under attack because they are so popular, and this case is just an attempt to strangle them. Next thing you know, Will argues, there will be attacks on single sex charters and charters with anti-trans rules. And then religion will bring up the establishment clause, which seems unlikely since SCOTUS has pretty much gutted that whole wall between church and school thing. 

But Will warns that this is all about crushing "true diversity." Yes, that's where we are--the right to discriminate and treat others in ways generally not allowed by law is now "diversity," another example of the conservative approach of grabbing a liberal buzzword and trying to beat liberals over the head with it. 

Like all of the supporters of the charters in this case, Will skips over the fact that the National Alliance of Public Charter Schools came down hard in favor of the Fourth Circuit ruling. A win for the charter in this case will mean an end of the marketing charters as public schools, and it will raise the next obvious question--if these are not public schools, why are we paying for them with public tax dollars. It will seriously blur the line between charters and voucher-fed private schools, which for those who really believe in charters as something other than a means of defunding public education and getting voucher feet in the door--well, it will suck. 

Will gets it mostly wrong in this piece. But he thinks SCOTUS is going to decide whether or not to hear it soon, and if so--well, maybe they won't decide to set up a parallel school system in a Constitution-free zone, but I'm not going to bet heavily on it.