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The concept of a charter school began in the 1970s when an educator suggested that groups of teachers be permitted to experiment with new approaches in public schools. In the 1980s, the idea was further discussed by Albert Shanker, the former president of the American Federation of Teachers. Minnesota passed the nation’s first charter school law in 1991. Since that time, 45 states and the District of Columbia have enacted charter school legislation (Education Commission of the States, 2020). During the 2020–21 school year, there were 7,800 charter schools serving 3.7 million students, constituting 7.5% of the public school population (White, 2022).

As publicly funded educational institutions that operate under a contract (charter) with the state or a state-authorized entity, charter schools present unique and nuanced legal and practical considerations. Charter schools are given more flexibility to experiment with curriculum and school policies, but in return, are held to performance standards that are outlined in the charter. They are free of charge and must be open to all students.1

Some have questioned whether charter schools are truly public, and in turn, whether charter schools are obligated to provide the same legal protections as traditional public schools. Thus, it is not surprising that courts have been asked to address whether charter schools are considered state actors or private entities. In this article, we present court cases that illuminate some of the legal issues that the courts are currently grappling with, particularly as their public/private status relates to discrimination, employment, and establishment of religion under the First Amendment.

These considerations are important because they determine what legal requirements educational leaders are required to follow.

Are Charter Schools Truly Public?

To date, there have been some conflicting legal decisions on whether charter schools are truly public (Green & Eckes, 2023). For example, the Fourth Circuit Court of Appeals ruled that charter schools in North Carolina are state actors in Peltier v. Charter Day Sch. Inc. (2022), but the Ninth Circuit held that charter schools in Arizona are not state actors in an employment matter (Caviness v. Horizon Learning Center, 2010).2 In June 2023, the U.S. Supreme Court declined a request to examine Peltier; this decision could have had a resounding impact on public education in the U.S.

In Peltier, the charter school enacted a dress code policy because it wanted to instill order. This policy required female students to wear skirts or skorts to school; girls were referred to as “fragile vessels.” Three parents sued and argued that this policy created a sex-based classification, which violated both the Equal Protection Clause of the Fourteenth Amendment under the U.S. Constitution and Title IX of the Education Amendments of 1972. At the heart of this case was whether this charter school and all other charter schools in North Carolina were state actors that were required to comply with federal laws protecting students from discrimination based on sex. In short, the Peltier case asked whether charter schools were truly public schools.

Charter school officials contended that they were not subject to federal laws because they were not state actors. They relied on the Caviness decision, which found that a private nonprofit corporation running a charter school was not a state actor for employment purposes. Ultimately, the Fourth Circuit ruled against the charter school in Peltier, finding that charter schools perform a state function and are state actors. Persuaded by the charter school officials’ arguments, the dissenting judges argued that the Caviness ruling should have applied to this North Carolina case.

The Peltier case was highly watched by those who work in both public and private education spaces, and both had reservations about how the Supreme Court might rule if it agreed to review this case. Public school advocates were concerned that if the Supreme Court took the case and found that charter schools were not state actors, they would not be required to follow federal or state civil rights laws. Such a decision could open the door to explicitly discriminatory policies at charter schools. There were also concerns that if charter schools were considered private entities, it could lead to the creation of religious charter schools.

Religious Charter Schools

In recent months, a state virtual charter school board in Oklahoma approved an application for the first religious charter school in the country. When approving the school, some virtual charter school board members argued that charter schools are not state actors, and they also relied on other recent Supreme Court cases that permitted public funds to be used to operate private religious schools (Green & Eckes, 2023).

The Supreme Court has issued three recent decisions that set the stage for the legal question regarding permissibility of religious charter schools. In 2017, the Court found that Missouri unconstitutionally excluded a religious preschool from its grant program to fund playground renovations (Trinity Lutheran Church v. Comer). In 2020, the Court determined that the Montana Supreme Court incorrectly nullified a private school choice program on the grounds that it excluded religious schools (Espinoza v. Montana). In 2022, Maine’s decision to exclude religious schools from its private school choice program was found to violate the First Amendment (Carson v. Makin). Quoting Espinoza, the Court noted that “a State need not subsidize private education but once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (p.1991). The former Attorney General of Oklahoma argued that after these three decisions, not allowing religious charter schools would violate the First Amendment’s Free Exercise Clause. Of course, it is important to point out that these Supreme Court decisions involved private schools and not charter schools.

At the heart of the case will be the issue of whether charter schools are state actors under the Establishment Clause of the First Amendment. For example, if Oklahoma charter schools are found to be state actors, and therefore public schools, then they cannot be religious. However, if they are not found to be state actors, building on the Court’s reasoning in Trinity Lutheran, Espinoza, and Carson, Oklahoma charter schools would be considered private schools and prohibitions against religious charter schools might violate the Free Exercise Clause of the First Amendment under the U.S. Constitution. Lawsuits have already been filed that challenge the establishment of the religious charter school in Oklahoma (OKPLAC, Inc. v. Statewide Virtual Charter School Board, 2023).

Final Thoughts

Determining whether a charter school is a state actor is a significant legal question with major implications for the education system and educational leaders. Indeed, it could upend the educational landscape if charter schools are found not to be state actors; the underpinning of U.S. public schools is that they are free and open to all students, and a finding that charter schools are not state actors could present significant implications for statutory and constitutional protections that aim to promote equity. To illustrate, while traditional public schools would be required to follow the Individuals with Disabilities Education Act, as private actors, religious charter schools would not be required to provide the same type of special education services to students. Likewise, it would likely be considered sex discrimination under Title IX and the Equal Protection Clause of the Fourteenth Amendment for a public school to mandate that girls wear skirts to school every day, but a private religious school would have greater leeway to create such policies. Therefore, the public/private distinction with charter schools is an issue for principals at charter schools and traditional public schools to watch closely.

1. However, some reports note the potential for inequitable access to charter schools (see for example, brookings.edu/articles/the-barriers-that-make-charter-schools-inaccessible-to-disadvantaged-families).

2. A Fourth Circuit opinion must only be followed by these states: Maryland, North Carolina, South Carolina, Virginia, and West Virginia. A Ninth Circuit opinion must only be followed by these states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Suzanne Eckes, JD, PhD, is the Susan S. Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison. She has published widely on education law-related topics.

References

Carson v. Makin, 142 S. Ct. 1987 (2022).

Caviness v. Horizon Learn. Ctr., 590 F.3d 806 (9th Cir. 2010).

Educ. Comm’n of the States (Jan. 28, 2020). 50-State comparison: Charter school policies. ecs.org/charter-school-policies/#:~:text=Currently%2C%2045%20states%20and%20the,Columbia%20have%20charter%20school%20laws

Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246 (2022).

Green, P., & Eckes, S. (2023). Are charter schools “public” or “private”?: State leaders’ answer could decide the legal fate of religious charters. Brookings. brookings.edu/articles/state-leaders-could-decide-the-legal-fate-of-religious-charters/

Mervosh, S. (June 5, 2023). Oklahoma approves first religious charter school in the U.S. The New York Times. nytimes.com/2023/06/05/us/oklahoma-first-religious-charter-school-in-the-us.html

OKPLAC, Inc. v. Statewide Virtual Charter School Board, CV-2023-1857 (2023). aclu.org/cases/okplac-inc-v-statewide-virtual-charter-school-board?document=Complaint-OKPLAC-Inc-v-Statewide-Virtual-Charter-School-Board

Peltier v. Charter Day Sch., 37 F.4th 104 (4th Cir. 2022).

Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017).

White, J. (Dec. 6, 2022). How many charter schools are there? National Alliance for Public Charter Schools. data.publiccharters.org/digest/charter-school-data-digest/how-many-charter-schools-and-students-are-there/