Last summer, by a vote of 10 to 6 along ideological lines, the en banc Fourth Circuit ruled (in Peltier v. Charter Day School) that a 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 threshold question whether a charter school is a state actor subject to the Equal Protection Clause.
Charter Day School has teed up this threshold question in a certiorari petition that is set for the Court’s conference this coming Friday. Specifically, the certiorari petition, filed by a talented team of lawyers at the Baker Botts law firm, poses the question “[w]hether a private entity that contracts with the State to operate a charter school engages in state action when it formulates a policy without coercion or encouragement by the government.” The petition points out, as Judge Marvin Quattlebaum did in his dissent, that the Fourth Circuit’s ruling conflicts with rulings from other circuits.
The petition has attracted strong amicus support, including from ten states that argue that the Fourth Circuit’s ruling jeopardizes the very existence of charter schools as “innovative, independent schools that operate outside the State’s government-run public-school systems.” As the Wall Street Journal has pointed out, the remarkable success of charter schools has made them a target of teachers unions and other defenders of the decrepit public-school monopoly.
Let’s hope that the Court promptly grants the petition and decides the case this Term.