Charter Day School says no. After the case worked its way up through the court system, with rulings to and fro, it finally arrived before the full panel of the U.S.4th Circuit Court of Appeals, where the word was that yes, charter schools are public schools--and therefor don't get to violate things like Title IX.
That view very much gets in the way of things like the hope of some to establish religious charter schools (and in fact this whole business may be tested via another avenue) as well as just generally allowing charter schools to ignore certain laws when they're in the mood. And so the multinational law firm backing this case immediately asked to take their show before the Supreme Court.
The Supremes have shown a bit of reluctance to leap right onto the case (a surprise, given their willingness to just make shit up in order to okay staff-led public prayer in public schools) and asked the Biden administration to offer their opinion on whether or not SCOTUS should take up the case.
That was back in January. In May, the feds offered an answer.
They say "the writ of certiorari should be denied," which means "don't take the appeal" which means the 4th Circuit decision that the charter school is a public school (and therefor has to follow the rules) should stand.
Their brief's argument comes in three parts:
A) The court was right to decide that the school's enforcement of its dumb dress code was, in fact, a state action.
A holding that CDS is not a state actor would allow States to evade constitutional constraints by delegating core governmental functions to private entities. West specifically addressed this concern, noting that a State cannot relieve itself “of its constitutional duty to provide adequate medical treatment to those in its custody” by “[c]ontracting out prison medical care.” 487 U.S. at 56. As the court of appeals noted below, that concern applies equally here, because a finding of no state action would mean that “North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools.” Pet. App. 17a.
A holding that CDS is not a state actor would allow States to evade constitutional constraints by delegating core governmental functions to private entities. West specifically addressed this concern, noting that a State cannot relieve itself “of its constitutional duty to provide adequate medical treatment to those in its custody” by “[c]ontracting out prison medical care.” 487 U.S. at 56. As the court of appeals noted below, that concern applies equally here, because a finding of no state action would mean that “North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools.” Pet. App. 17a.
Calling a charter school "not really a state actor" would allow charters and indeed the state itself to do all sorts of naughty things by simply hiring someone else to do it. "Yeah, we know we can't deny Black children an education, so we just hired Aryan Nation Charter Chain to handle it for us."
Nor was the court impressed by the argument that a "public charter school" is pretty much like a "public utility" or a "public access channel" on cable.
B) The decision does not warrant review.
Lots of lawyerspeak in this one, but I did pick out that the feds say that the petitioners are big overdramatic snowflakes when they claim that the decision of the 4th Circuit poses an existential threat to charters everywhere, that it will expose charter operators to "the slow strangulation of litigation."
This is a baloney argument that amounts to a claim that charter schools could not possibly function if they were forced to live under the same rules as every single public school in the country. Or as the brief puts it, "there is no incompatibility between encouraging educational innovation and respecting students' constitutional rights."
Also, the feds point out, it's not like court cases haven't called charter schools public schools before. It's just that this time it's inconvenient for the charter school involved.
C) The case would be a poor vehicle for considering the question presented.
It's not entirely clear that reversing the decision would solve anything--the charter school might still lose any attempt to maintain its ripped-from-the-1950s dress code.
So the feds say to SCOTUS, "Don't bother. Just let the ruling stand."
It remains to be seen what SCOTUS will decide to do (or not do), and hard to divine what they might decide if they do hear the case, even as there's plenty of disagreement about what the preferred outcome might be. Stay tuned.
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