Baker A. Mitchell and Robert P. Spencer:
The Fourth Circuit’s finding appears to have been based on little more than the convention of calling charters “public charter schools” and their being mostly funded by public sources. But hundreds of American cities contract municipal services out to private companies, which generally aren’t considered state actors. The Supreme Court rejected state-action claims against an investor-owned public utility in Jackson v. Metropolitan Edison Co. (1974) and an operator of a public-access TV channel in Manhattan Community Access Corp. v. Halleck (2019). If these aren’t state actors, surely neither are North Carolina’s charter schools, which the law promises freedom from government control.
Far more is at stake than CDS’s school-uniform policy, which was designed by parents of our students. The ruling comes at a time when the charter-school movement is growing. Oklahoma’s attorney general recently issued a legal opinion stating that religious organizations must be allowed to operate charter schools in the Sooner State. A key aspect of the opinion was a finding that charter schools are not state actors and, therefore, the Constitution’s Establishment Clause doesn’t prohibit the inculcation of religious values, as it does in government-run schools. In Carson v. Makin (2022), the U.S. Supreme Court held that a state voucher program couldn’t discriminate against religious schools.