The Supreme Court deadlocked on Thursday in St. Isidore of Seville Catholic Virtual School v. Drummond. The tie is a loss for low-income families, who are the primary beneficiaries of charter schools. The Supreme Court’s decision not only calls into question the rights of faith-based organizations to compete in the charter school marketplace, it also leaves intact a recent ruling holding that charter schools are legally equivalent to traditional district schools. Charter schools need more autonomy than district schools if American families are going to have real choice in education.
Although the justices did not issue an opinion, the oral argument revealed that they were split on whether faith-based organizations could operate charter schools. But the religion question hinges on a more fundamental issue — whether charter schools are private organizations or “state actors,” the legal parlance for governmental or quasi-governmental entities that are treated as the government for legal purposes.
If faith-based charter schools are private entities, then they are entitled to the free exercise of religion, and the state could not discriminate against them on the basis of religion any more than it could discriminate against religious organizations that contract with the city to find homes for foster children. If, on the other hand, charter schools are state actors, then they cannot operate as faith-based schools for the same reason that traditional public schools cannot be religious: state actors must be secular.
While the “state actor” question may seem arcane, it has enormous consequences. The true promise of charter schools is that they are an alternative to traditional public schools. In the traditional model, the government operates the schools. In the charter model, the government contracts with private entities that operate the schools.
Charter schools are regulated by the government, to be sure, but the oversight is coming from outside the school. In this way, charter schools are similar to private organizations of all stripes which contract with the government to provide health care, child welfare, job training, and other essential social services. Private entities don’t become public just because they have to follow the rules that go along with doing business with the government.
The Supreme Court in St. Isidore missed an opportunity to recognize that charter schools are private entities, not state actors. This leaves charter schools vulnerable to expensive legal challenges. If viewed correctly as private entities, single-sex charter schools, for example, are within their legal rights to admit students by gender. If viewed incorrectly as state actors, these same schools will be hard-pressed to survive a challenge under the Fourteenth Amendment’s equal protection clause. The same is true of tribal schools and even schools that focus on underserved communities.
The risks of the “state actor” label for charter schools are real. Consider the recent ruling against Charter Day School (CDS), a North Carolina charter school that requires a dress code. A parent sued the school on the grounds that its uniforms violated the equal protection clause. The school responded that, as a private entity, it was not subject to the Fourteenth Amendment. It cited precedents from the First, Third, and Ninth Circuit Courts of Appeal, declaring that the charter schools are not state actors. Nonetheless, the Fourth Circuit Court of Appeals ruled the school was a state actor.
Not only did the Charter Day School lose its dress code, it was forced to pay its legal expenses as well as the attorney fees of the parent, which, after seven years of litigation, were in the millions of dollars. Further, the shifting of the plaintiffs’ attorneys fees to the school was not a feature of this case. Constitutional challenges against state actors are brought under a federal statute that allows for the plaintiffs to recover their attorneys fees in successful cases. As Judge J. Harvie Wilkinson III lamented in his stirring dissent, “Regardless of the constitutional merits of such challenges, the costs of litigation may well accomplish opponents’ lamentable goal of rendering such innovative and diverse programs an experiment that died aborning.”
Because of the Supreme Court split, the regulatory climate for charter schools remains uncertain. Fortunately, the demand signal for charter schools remains strong. Since launching in the 1990s, charter schools have consistently outperformed traditional public schools, averaging over two weeks of additional learning per year — equivalent to 14 extra months in a full K–12 career. Low-income students benefit even more, growing 13 percent faster than their peers in traditional schools, graduating college at four times the rate, and earning $2,300 more annually as young adults. The results are further proven by the steady increase in charter school enrollment, which now tops almost four million students across the United States.
As the charter school model continues to grow, there will be more opportunities for courts to rule on the status of these schools. In time, the Supreme Court will resolve the issue left pending in St. Isidore. Let’s hope that justices recognize that, to compete, charter schools require the flexibility that the law affords private parties.
Michael Toth is a resident fellow at the Foundation for Research on Equal Opportunity (FREOPP) and a research fellow at the University of Texas at Austin Civitas Institute. Gavin Schiffres is a research fellow at FREOPP and founder of Kairos Academies, a charter school network.
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