By a vote of 10 to 6 along ideological lines, the en banc Fourth Circuit ruled yesterday (in Peltier v. Charter Day School) that a public charter school in North Carolina violated the Equal Protection Clause of the Fourteenth Amendment when it adopted a dress code that required female students to wear skirts, skorts, or jumpers. The court divided sharply on the question whether a public charter school is a state actor subject to the Equal Protection Clause.
Judge Marvin Quattlebaum wrote the lead dissent. Here are some excerpts from the introduction to his dissent:
The question is not whether we like or don’t like Charter Day School’s requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question—is Charter Day School a state actor? …
Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under § 1983. The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues. The immediate casualty of the majority’s decision is a small part of a dress code at a particular charter school. That is the least of my concerns. My worry is that the majority’s reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.
But the implications of the majority’s decision extend beyond even charter schools. By casting aside guidance from Supreme Court precedent, the majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of a § 1983 claim. Frankly, it is hard to discern, much less define, the limits of what constitutes “state action” after the majority’s decision.