The Problem That Vouchers Won't Solve

U.S. education is an unending struggle against certain hard-to-solve problems, with the frequent eruption of innovations and reforms that are sold based on the notion that these will solve a particular problem.

Some problems are rarely directly addressed by their actual name, either because to name them would be to claim them and then we'd have to sweep away a bunch of foolishness in order to have a real conversation, or because the problems look different from another vantage point. 

Here's a problem that has been with us since before we were even an actual nation:

Too many wealthy people don't want to pay for a quality education for poor people. And too many white people don't want to pay for a quality education for non-white people.

We have a bad system, worsened by school district gerrymandering, that links funding to real estate so that-people in East Egg don't have to pay for schooling in That Neighborhood. To the extent that state and federal taxation tries to mitigate the problem, certain folks fight state and federal government. 

Objections boil down to things like, "That much??! Surely we don't have to spend that much of my money to get Those Peoples' Children an acceptable level of education." and even "This is a big scam! Somebody is soaking me for way too much money--I bet it's that damn union."

Because from another vantage point, the problem is that state and federal government keep trying to take too much of your money to pay for a quality education for Those Peoples' Children. And if that's what you think the problem is, vouchers as currently envisioned are a pretty good solution.

Vouchers let you strip state and federal government out of the equation. There's no accountability and no regulation, so you can reassure the private education vendors that they will be allowed to conduct business as they see fit. If they want to discriminate against certain types of students or families, if they want to teach God created the Earth flat, if they want to use a reading curriculum that their Uncle Bob the podiatrist concocted in his spare time--well, they can do all of that, untroubled by anyone telling them to stop. 

You can sell vouchers by telling folks that with a voucher, they'll be able to choose the education of their dreams. They won't, private education vendors don't have to accept them as students, and their voucher money won't be enough to get into top private schools. But by the time they figure that out, they won't have any other options available. Guys like Josh Shapiro can say that they want vouchers so that others can have the upscale private school option he grew up with, but that school is not going to be accepting just any student who shows up voucher in hand. 

Wealthy folks will still have all the options they want. They just won't have to pay for those kinds of options for Those Peoples' Children. Because a voucher program is set up to avoid adding any more revenue to the education system. In fact, by funding students and not schools, vouchers will make it easy to shrink school funding as well as slamming the door on any kind of capital improvements and upkeep.

Meanwhile, as currently structured, vouchers are like a rescue at sea, where the lifeboat rides up to a floundering ship to rescue the people on board, only there's a limited number of seats on the lifeboats, and only some select people will be allowed on the lifeboats, and some of the lifeboats turn out to be sinking fast, and every time someone gets onto a lifeboat they punch another hole in the hull of the floundering ship. And all the while, a nearby luxury cruise ship's passengers watch and say, "Well, they've got lifeboats. They aren't our problem."

Vouchers do solve a problem, but it's not the problem of inequity. It's the problem of people who are tired of the government trying to make them help pay for Those Peoples' Children to get a quality education. 

Okay--here's my usual caveat. There are voucher supporters who sincerely believe in the power of a voucher system to fix things. They're closely related to the people who really believe in the power of the free market to fix education. I think these people are wrong, but I want to acknowledge that they exist.

I will also acknowledge that state and federal government has not done a great job of fixing the problems of educational inequity, though I'll argue that this ineffectiveness is largely the result of the two truths I led off with above. 

Wealthy parents have always had choice, exercised via the real estate they buy. Some school choice supporters have focused on extending that same kind of choice to non-wealthy parents. But what we've got under modern choice systems doesn't do the job. "You can choose between a microschool or a mediocre computer program or a school that's run by people who don't know what they're doing but they have good marketing or even--oops, sorry, your kind aren't welcome at that choice and also we are simultaneously defunding your public school option" is not the same as "You can choose to live in East Richville or Downtown Buckston." 

A true, functioning choice system that finally served the underserved in this country require a big infusion of money. Those students whose education underfunded and under-supported now will not gain that funding and support just because they are shuffled around, nor will market forces suddenly make the funding and support either appear or become unnecessary. A true choice system would require more money than we spend if for no other reason than a true choice system would require a whole lot of excess capacity--otherwise every student would be locked in place.

And no, I'm not convinced by examples of charter or choice schools that do "more with less," because every one of those models depends either on carefully de-selecting students who would be costly to educate or cutting corners or both.

This is one of the ongoing internal tensions of the choice movement--people who want the same choices for poor kids that rich kids have are allied with people who feel that they don't want or need to spend a bunch of money to educate Those Children. The people who say "This child deserves the same rich opportunities as that child" teamed up with the people who say "This child is not going to make a huge contribution to society, so why waste a bunch of money on his schooling?"

I'll say it again. Too many wealthy people don't want to pay for a quality education for poor people. And too many white people don't want to pay for a quality education for non-white people.

Vouchers don't change that. As currently envisioned, they enable it.

And since this post is already turning out to be long, we might as well move on to the next obvious question.

What should we do?

We could have a full choice-supporting voucher-type system, I suppose, but unless we are going to openly reject as a nation the mission of a quality education for every child, we'd need a few tweaks to what voucher fans push these days. 

Regulation and oversight, so that every education provider is proven and certified to be of high quality. No discrimination. Safeguards for the rights of parents and students. If you are part of the publicly funded system, you live by public school rules. Nor should public tax dollars be funding a private religious operation; it's bad for taxpayers and bad for religion. And adequate funding. When a voucher is issued to a student from an underfunded school, base the amount not on what that school currently spends, but on what it ought to be spends. Nor can funding be simply a money-follows-the-child-model, because that excess capacity has to be funded somehow. Buildings have to be maintained somehow. State and federal investment in education would have to be increased. 

And if you say, "Well, if we are going to spend all that money, wouldn't it be more efficient to have one school instead?" Well, I agree. I also believe that it's entirely possible, even preferable, to provide a variety of choices under one roof. But if you believe that having a choice between different buildings and schools is important in and of itself, then argue for funding it. Don't pretend that the money that wasn't enough to run one school will somehow be enough to run five. 

What else could we do?

Fix the boundaries. No more school districts bult along the same red lines that segregated housing. No more splinter districts seceding to make a tiny district that blocks Those Peoples' Children. Redraw boundaries to be inclusive and diverse. End educational gerrymandering. I know-- finding leaders with the will to do it would be a heavy lift. 

And we could, of course, simply fully fund all schools--even the ones in Those Neighborhoods. But that would run against the "I've got mine, Jack" spirit of our times, and takes us right back to our problem, the difficulty in convincing some folks to help pay for educating Those Peoples' Children. So it becomes a challenge of advocacy and political will.

Funding public ed and confronting this foundational problem isn't very sexy or shiny, but burning down the house and building a new, cramped, limited structure on the exact same foundation doesn't solve the problem. It just buries the old problem under a whole mess of new ones. We need to do better. 

CAP And Feckless Democrats On Education

Public education has been a political orphan for so many years now, going back roughly to the time that the Democratic Party sold itself to neo-liberalism. Here is the whole problem in one infuriating piece.

It's the Center for American Progress (CAP). CAP was once the holding pen for folks awaiting their spot in a Hillary Clinton administration, a sort of left-leaning thinky tank. And now they've decided they want to speak out on the subject of public education.

The piece, leaning heavily on the results of a couple of surveys, is entitled "Book Banning, Curriculum Restrictions, and the Politicization of U.S. Schools,' written by Akilah Alleyne, and it is devoid of any sense of irony or self-awareness. But Alleyne has only been at CAP for a year, and prior to that she was studenting at the University of Delaware (she went in in 2011 and came out in about a decade later with a PhD while doing a bunch of other stuff), so she may not be so aware of where CAP has been on the whole "politicizing education" thing.

There's a lot that's good in this piece. I kind of love the end of this sentence:

At least 17 states have introduced bills containing gag orders or taken other steps that would restrict how teachers can discuss American history and current events, including pulling books off library shelves in an effort to suppress so-called “divisive concepts”—a shorthand affectation nearly always referring to issues about race and identity.

Yeah, "shorthand affectation" is about right. 

She gets a bunch of other things right. 

Efforts to censor teachers, omit history, or ban important conversations about race in our schools go way too far. Our children deserve an education honest about who we are, demonstrating integrity in how we treat others, and creating a sense of belonging so every child has the freedom to learn, grow, and pursue their dreams.

Check. It is hugely undernoted that all of these gag laws and book restrictions are not about parents' rights or teachers' rights but about restricting the rights of students. So applause for touching on that.

Certain politicians try to use race to turn us against schools and teachers, or point the finger at parents. These politicians want to keep us from coming together to demand every school provide a quality education to every child, not just the children of the wealthy few.

Sure, though I'd go a step further and note that the subtext of all these gag laws and CRT panic and book restrictions is that public schools can't be trusted, and we should burn down the whole system and replace it with vouchers (used, ideally, at private Christian schools). 

But honest--there are some decent ideas in the piece. But there is also this big, bold headline:

Education should not be politicized

Here's the thing. This kind of clueless reversal has become a staple of the reformy crowd. "We really need to improve the quality of discussion about education," reformsters would say, after years of rough unrestrained attacks on teachers. "We must do something about this terrible over-emphasis on high stakes testing," said Arne Duncan, after spending years helping double down on the federal emphasis on high stakes testing.

This is more of that. CAP has been in there swinging for all the reformster standards, including and especially Common Core and high stakes testing connected to it. They leaned on that stuff so hard that I literally ran out of headline ideas for posts about it on this blog. And they pursued all of these reformy goals through political means. 

Democrats have completely lost the knack of supporting public education, leaving them to just sort of make feckless noises in the general direction. They slipped into some kind of neo-lib stupor decades ago leading them to become enthusiastic partners in the right-wing led business of dismantling public education and selling off the parts, all the while listening to politicians and political operatives instead of people actually working in schools. Should not be politicized??!! Don't tell me--get in your time machine and go back and tell the members of your own party.

Do I seem cranky? Probably because of the breaking news that the Democratic candidate for governor of my state, Pennsylvania, is supporting a voucher program that is built on the same model as the vouchers legislation created by the GOP all across the country. Democrats continue to be a feckless, useless, and faithless when it comes to public education. Framed another way, I'm not so sure the issue is politics in education but that the Democratic party so often insists on being on the wrong side of the politics. And CAP has typified that problem every step of the way.

There are some good things in this piece, and I'm sure I'm in a bit of a mood over Shapiro, but damn-- just once I want some Democratic operation (like, say, the entire Biden administration) to say, "We're sorry, but we got a bunch of stuff wrong before, and we'd like to correct that" before they launch into their next round of advice about how to Fix Things. 

PA: Josh Shapiro Joins GOP On School Vouchers

Well, shit. There are no pro-public education candidates for governor in Pennsylvania.

Josh Shapiro is for vouchers. 

In an interview with the Patriot News, Shapiro said, "And I’m for making sure we add scholarships like lifeline scholarships to make sure that that’s additive to their education. That it gives them other opportunities...to be able to help them achieve success”

Nor is his support an interview bobble. From his campaign website:

Josh favors adding choices for parents and educational opportunity for students and funding lifeline scholarships like those approved in other states and introduced in Pennsylvania.

The Lifeline Scholarship bill is a GOP education savings account bill--a super-voucher bill-- currently sitting in the appropriations committee in the House; the Senate has passed their version. Not just charters. Not just traditional vouchers. But nice shiny, super vouchers. Take a bunch of money from public schools (based on state average cost-per-pupil, not local numbers, so that many districts will lose more money than they would have spent on the students). Handed as a pile of money/debit card which can be spent on any number of education-adjacent expenses. (Excellent explainer at greater lengths here.)

The state will audit the families at least once every two years. The bill contains the usual non-interference clause, meaning that the money can be spent at a private discriminatory school, and no one will be checking to see if the school is actually educating the student. The bill is only old-school in that it uses the old foot-in-the-door technique of saying that this is just to rescue students from "failing" public schools (but includes no provisions to determine if the child has been moved to a failing private school).

Choicers are ecstatic.

The Center for Education Reform, the ardently pro-school choice anti-teacher advocacy group, has gleefully sent out the news. Choice advocate David Hardy from the right-tilted Commonwealth Foundations says, "I am happy that Mr. Shapiro has indicated his willingness to consider for poor families what has obviously worked for his family. The families most satisfied with their children's educational experience are those who were able to choose it."

Pastor Aaron Anderson, who operates a private religious school of his own and has a degree from Liberty University, thinks this is super. 

Could it be that both Republicans and Democrats finally agree that a child’s zip code, ethnicity, or class should not determine whether they have access to a high-quality education?

You know a great way to make sure that zip code, ethnicity, and class don't determine a child's educational quality? It's not to give some of them voucher money that may or may not get a few students to a better education. 

It's to fully fund and support all the schools in all the zip codes.

Boy, would I love to vote for a governor who supported that for a plan.

But no--we now have a choice of two guys who are barely different on education. Mastriano would gut spending completely while implementing vouchers, while Shapiro would just slice open a public education vein.

In fairness to Shapiro, his site says he's going to fully fund education, too, which would be kind of like putting a hose in one side of your swimming pool while chopping a gaping hole in the base on the other side. It's not a great plan. If he means it, which now, who's to say. 

Shapiro's position is awful. It would align him with just about any GOP candidate in any other state, and the only reason it isn't a disqualifier in this state is because insurrectionist Doug Mastriano is so spectacularly, so uniquely terrible, so ground-breakingly awful. Mastriano is still a terrible, terrible choice.

Voucher fans were sad because they could see their hopes and dreams going down in flames with Mastriano, but now they can rest assured that whoever wins, they will get a governor who supports an education program that any right wing Republican would love. For those of us who support public education, it is brutally disappointing.

ICYMI: Fall Cleaning Edition (9/18)

You may do spring cleaning at your house, but here we hit a point of "Hell, it's going to be cold soon and we'd better get things straightened out before we're trapped in this house." Having to counteract the Forces of Chaos doesn't help, either.

Here's some reading from the week. If you find something you think is worthwhile, remember to share it from the original source and create some traffic for that piece. In the case of media outlets, it may convince some editor to do more of that kind of coverage.

Biblical basis for critical race theory is justice

Yes, it happened again. An actual Christian wrote a piece making a case for the value of critical race theory! From the Citizen Times.

Spotsylvania board selects unqualified superintendent

This is the kind of crazy you get when a group takes over your school board. Fire the old super, offer the job to an unqualified crony. 

Disrespect: 5 Ways Teachers Are Driven Out!

Nancy Bailey lists five ways to convey your disrespect to your teaching staff. None are recommended.

Go Go Gadget Arms

Grumpy Old Teacher walks us through the fun of administering a digital test in a one-to-one school. 

Satanic Panic is making a comeback

You may remember the good old days when satanic worshippers were the favorite hobgoblin of the far right. Well, here we are again... From NBC news

6 questions to better understand NAEP scores

Yeah, that seems like an age ago, doesn't it. Almost as if the scores are good for a brief freakout and then everyone moves on. This is a good quick primer on the scores, from Jill Barshay and the Hechinger Report

How book bans turned a Texas town upside down

A nice in-depth piece from the New York Times, looking at how this baloney plays out on the ground. 

Heritage Foundation and Its Partners Are Methodically Working With State Legislators to Pass Universal School Vouchers

As always, Jan Resseger has done her homework for this depressing story.

November in Florida

At Accountabaloney, Sue Kingery Woltanski has been listening to what Ron DeSantis has to say about his future plans, and it's not pretty.

Praying Coach Is Too Busy For His Old Job

You remember the case of Joseph Kennedy, the Washington state football coach who wanted to hold public prayers on the fifty yard line even though his school district said, "Don't." You remember that the case made it all the way to the Supreme Court, where the court decided in the coach's favor in a decision that required a willful ignoring of the actual facts of the case. 

Justice Gorsuch wrote in his decision:

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment.

It's such a mischaracterization of the facts of the case one has to wonder, if Gorsuch is correct, how such a case could have been decided so incorrectly by lower courts.

The answer, as laid out in detail in a dissent by Justice Sotomayor, is that Kennedy's "observance" was not brief, quiet, or personal. As Sotomayor writes

Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment.

The Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.

To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts.

Also, after noting that the majority just threw out the Lemon test, she writes

In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state. I respectfully dissent.

The dissent uses pages to lay out the many details of how Kennedy was not quiet or brief, including his invitations to opposing teams to join in, and that very special time where he went out and led a student prayer right in front of the administrator who has just asked him not to. Why the District didn't just fire him for insubordination I do not know.

In the end, SCOTUS ordered the district to reinstate Kennedy as coach even though they had never fired him in the first place--he'd simply failed to reapply for the job and subsequently played victim; it didn't matter, as Kennedy's lawyer kept saying he was fired, and Justice Alito also said he was fired. But SCOTUS said he had to be re-employed, his lawyer threatened to spank the school district if they didn't, and Kennedy said he'd be back the instant they sent word.

He was sent reinstatement paperwork at the beginning of August. But now the fall football season has come and--twist!-- Kennedy is nowhere near Bremerton. Danny Westneat at The Seattle Times has been tracking his busy fall:

Instead, as the Bremerton Knights were prepping for the season in August, Kennedy was up in Alaska, meeting with former Vice President Mike Pence and evangelist Franklin Graham. On the eve of the first game, which the Knights won, Kennedy was in Milwaukee being presented with an engraved .22-caliber rifle at an American Legion convention.

The weekend of the second game, which the Knights also won, Kennedy appeared with former President Donald Trump at the Trump National Golf Club in New Jersey. He saw Trump get a religious award from a group called the American Cornerstone Institute.

Coming up this month, Kennedy’s scheduled to give a talk as part of a lectureship series at a Christian university in Arkansas.

“Place a PR/Publicity Request,” invites his personal website, where he’s known as Coach Joe.

It’s an increasingly surreal situation for the Bremerton schools. They were ordered to “reinstate Coach Kennedy to a football coaching position,” according to court documents. But the now-famous coach is out on the conservative celebrity circuit, continuing to tell a story about “the prayer that got me fired” — even though Bremerton never actually fired him.

Read the full Seattle Times piece if you need to raise your blood pressure a bit. 

So given the choice between doing the job he sued over, or making the circuit as a celebrity martyr, Kennedy has chosen the latter. If there was ever the slightest shred that there was a real matter of principle at the heart of this case, it should evaporate. Just one more excuse to batter the wall between church and state. 

Why Permissionless Education

"Permissionless" is a bit of a buzzword in some corners of the choicer community these days. 

Jeanne Allen of the Center for Education Reform tosses it around a bit, particularly when she's working on the STOP award, a prize that Pennsylvania gazillionaire Jeff Yass funds and promotes. The P in STOP stands for permissionless.

Meanwhile, the Stand Together Trust, which used to be the Charles Koch Institute, likes "permissionless" a lot. Their substack, previously "Learning Everywhere," is now called "Permissionless Education" and the Stand Together folks even plan to do a whole session at the 30th annual SPN meeting entitled "Expanding the Permissionless Education Market: Lessons from Everyday Entrepreneurs." Because nothing says "everyday entrepreneurs" like Koch money and the State Policy Network, that great collection of big-time right-wing thinky tanks. 

"Permissionless" is a term that seems to have emerged from the world of blockchain. Here's a guy named Tim Denning talking about his permissionless revelation:

Permission-seeking is such a tragedy.

So much human potential gets wasted because of it. When I went down the rabbit hole of blockchain technology years ago, I came across the word “permissionless.”

I instantly fell in love.

He goes on to describe the permissionless economy in glowing terms. You don't have to get past gatekeepers. You don't need skills or qualifications to start. There are no bosses. "The value you add creates proof-of-work."

If you haven't spent much time soaking up blockchain discussions, they very much resemble the naive dreams of libertarian free-marketeers. Just be awesome in your own special way, and success and prosperity will find you. 

But mostly, you shouldn't need anybody's permission to be awesome, and you definitely should never have to answer to anyone.

You can find places where blockchain world overlaps with education, like ed3, hoping to develop the future of education with web3. Here they are talking to Manuel Maccou at BanklessDAO (he's also a co-creator of Cypto Nexus) about how a Decentralized Autonomous Organization (DAO) can "enable permissionless education where teachers become students and students become teachers." Maccou is currently working on Mass Effect, a "knowledge exchange protocol." 

If that all seems a bit much, the world of education dismantlers is just focusing on that one term-- permissionless.

Here's the Yass definition of permissionless education: "free to exist and thrive without dependence on regulatory bodies."

From the Center for Education Reform: As Ted Kolderie puts it, innovation is letting people try new things, without having to prove it already works. In other words, without permission.

And here's Adam Peshek at Permissionless Education explaining that proposed schools shouldn't have to produce a bunch of reports for government or investors or anyone else (also, interestingly, noting that charters have not turned out to be laboratories of innovation at all, and that's why we need to let other avenues grow.)

The main thread is simple enough. "Innovators" should be free to try whatever they think might work, which would be a more acceptable idea if we were talking about new frontiers in toaster design. But we're not talking about toasters--we're talking about letting folks experiment on young humans.

Permissionless is about being unaccountable, about not having to answer to anybody. Which is just one more variation on the old Koch-far right search for a government-free Land of Do As You Please.

Education--particularly public education and all education being paid for with public tax dollars--must be accountable, and not just to the "consumers" in the "marketplace" (though they do in fact deserve assurances that they are not "buying" toxic junk), but to all the members of the society into which those students will be emerging. 

In fact, I suspect you'd find many people on any side of the various political divides who would stand up and say, "Yes, I am opposed to accountability and think schools should not be held accountable in any way." No, nobody would say that. Which is why we've got education dismantlers saying "permissionless" instead. 

 

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.