OPINION:
Now that the elections are mercifully behind us, it’s probably time to refocus on more important issues, like the slow-motion train wreck that is American public education — as evidenced in the disgraceful National Assessment of Educational Progress reading and math test scores released on Oct. 24.
These failures are not new, nor are they uniquely tied to the COVID-19 pandemic. They are, however, why millions of families have abandoned government-run schools for charter schools, private schools, home schooling and other options.
Unfortunately, one of those options is threatened by the federal judiciary.
The Supreme Court will soon decide whether to accept a North Carolina charter school’s petition for certiorari asking the court to “review and reverse” the 4th Circuit Court of Appeals’ June decision in Peltier v. Charter Day School. The Supreme Court’s decision on the petition may be one of the most consequential it will make this term.
Not only does the future of the nation’s roughly 7,700 charter schools (and the nearly 3.5 million students who attend them) hang in the balance, but the independence and integrity of pretty much all nongovernment social-services providers, especially those operated by or affiliated with religious institutions, may also be threatened.
The case goes back more than seven years, when three Charter Day School students, assisted by the American Civil Liberties Union, filed a lawsuit in federal district court claiming that the school’s uniform policy, which requires girls to wear jumpers, skirts or skorts (with some exceptions), violated their constitutional rights.
This is contrary to North Carolina’s 1996 Charter School Act, which gives charter schools wide-ranging flexibility in the methods and policies they employ. The law states clearly that charter schools “operate independently of existing schools” and are “exempt from statutes and rules” applicable to government-run schools in the Tar Heel State.
Accordingly (and not surprisingly), the North Carolina Supreme Court, in December 2021, ruled in State of North Carolina v. Kinston Charter Academy “that North Carolina charter schools are not state agencies.”
The 4th Circuit, however, in a split decision, sided with the ACLU and concluded that Charter Day School is, in fact, a “state actor” and (most ominously), therefore, must comply with the policies and regulations that apply to government-run schools.
The ACLU’s position has, of course, been championed by the usual suspects, including the American Federation of State, County and Municipal Employees, American Federation of Teachers, National Education Association, Human Rights Campaign, the National Center for Transgender Equality and the Women’s Media Center.
The good news is that in mid-October, 10 states — Alabama, Alaska, Arkansas, Kansas, Mississippi, Nebraska, South Carolina, Tennessee, Texas and Virginia — as well as the leaders of the North Carolina House and Senate filed amicus briefs supporting Charter Day School’s petition, arguing that the court’s decision on the cert petition is crucial.
If the Supreme Court allows the appellate court’s decision to remain undisturbed, teachers unions and school-district bureaucrats around the country will demand that charter schools fall in line with all of the rules and regulations, personnel policies and curriculum decisions that have made many government-run schools the disasters they are today.
As Great Hearts, which operates more than three dozen charter schools in Arizona and Texas, serving more than 25,000 students, wrote in an amicus brief: “Unless this court corrects the 4th Circuit’s error and provides clear guidance that charter schools are not presumptive state actors,” the decision “will wreak havoc” on educational systems across the country, harming in particular low-income and minority students who have been “the greatest beneficiaries” of the “proven educational and social benefits” of charter schools.
Most importantly, it’s not just charter schools that are likely to be adversely affected by the 4th Circuit’s erroneous decision. Many other nonprofit service providers and the people they help also would be harmed, as Catholic Charities of the Diocese of Arlington (Virginia), the Jewish Coalition for Religious Liberty, the Islam and Religious Freedom Action Team of the Religious Freedom Institute, and Notre Dame Law School’s Religious Liberty Clinic all pointed out in briefs supporting Charter Day School.
The Catholic Charities brief is direct and succinct: “The 4th Circuit’s overbroad approach to the state-action doctrine threatens far more than charter schools. It also threatens religious social-service providers … [which] could be deemed state actors.”
In short, the question confronting the judiciary is whether any organization will be allowed to exist outside the realm and reach of the government (at whatever level). For these organizations and everyone who relies on them, that is a legitimately existential question.
The Supreme Court needs to accept the petition and clarify this mess.
• Michael McKenna, a columnist for The Washington Times, co-hosts “The Unregulated Podcast.” He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.
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