Why judges say charters are NOT public schools— students and parents should be nervous

The common refrain is that charter schools are public schools. Critics, such as Diane Ravitch, have said that charter schools accept public money but act private. I have levied a variety of critiques at charters (Even made Jonathan Alter a little bit mad) despite the fact that I was an instructor at an Aspire charter school in California and that I currently sit on UT-Austin’s charter school board. See CI’s full thread on charter schools here.

At the recent UCEA convention in Denver, I had the pleasure of presenting in a conference session about charters schools and equity. At the conference I was blown away how judges are treating charters schools as private schools and the implication that these choices have for student who attend those schools. I have excerpted below from a law journal article authored by Preston C. Green III, Erica Frankenberg, Steven L. Nelson, and Julie Rowland.

One of the challenges of the professoriate is making our work accessible to a wide-audience outside of the professional journals that we publish in. So I have highlighted here on CI, for your reading pleasure, why judges say charters are not considered public schools.

Citation: Green, P., Frankenberg, E., Nelson, S., & Rowland, J. (2012). Charter schools, students of color and the state action doctrine: Are the rights of students of color sufficiently protected? Washington and Lee Journal of Civil Rights and Social Justice, 18(2), 254-275.

A recent federal appellate court decision suggests that students of color should also be concerned about the legal protections that charter schools might provide to students.¹⁸ Because state authorizing statutes consistently define charter schools as “public schools,”¹⁹ it would appear that charter school students are entitled to constitutional protections.²⁰ Students attending public schools have challenged deprivations of federal constitutional and statutory rights under 42 U.S.C. § 1983, which establishes a cause of action for deprivations of federal constitutional and statutory rights “under the color of state law.”²¹ Students have sought damage awards pursuant to § 1983; “actions for injunctive or declaratory relief are [also] a major portion of the case law.”²² However, in 2010, the Ninth Circuit concluded in Caviness v. Horizon Learning Center²³ that a private, nonprofit corporation running an Arizona charter school was not a state actor under § 1983.²⁴ The Ninth Circuit specifically rejected the assertion that charter schools were state actors because they were defined as “public schools” under the state statute.²⁵

Although the Caviness case was an employment case, it is important to recognize that a similar analysis could lead to the conclusion that charter schools are not state actors with respect to student constitutional issues. Students attending public schools are guaranteed constitutional protections.¹⁵⁶ There are constitutional safeguards for student expression.¹⁵⁷ Public school students are protected from unreasonable search and seizure.¹⁵⁸ The Constitution also requires public schools to provide procedural due process safeguards when suspending or expelling students.¹⁵⁹ Of the seven states in the Ninth Circuit with legislation authorizing charter schools,¹⁶⁰ only Oregon guarantees that all federal rights apply to charter schools.¹⁶¹ With the exception of Oregon, state legislatures do not compel charter schools to follow constitutional guidelines with respect to due process. California and Idaho merely require potential charter school operators to disclose their disciplinary policies in their initial charter application.¹⁶² Alaska, Arizona, Hawaii, and Nevada do not even demand that charter schools disclose their disciplinary policies at the time of application.¹⁶³

Students of color attending charter schools should be concerned about the potential lack of constitutional due process protection. Studies of data at the national, state, district, and building levels have consistently found that students of color are suspended at two to three times the rate of other students.¹⁸⁰ African-American students should be especially concerned about the possible lack of due process protection.¹⁸¹ According to the U.S. Department of Education Office for Civil Rights, in the 1970s African-Americans were two times more likely than white students to be suspended from school.¹⁸² By 2002, the risk of suspension for African-Americans increased to nearly three times that of white students.¹⁸³ Further, a study of office discipline referrals in 364 elementary and middle schools during the 2005-06 school year found that African-American students were more than two times as likely to be referred to the office for disciplinary issues as white students.¹⁸⁴ The same study found that African-American students were also four times more likely to be sent to the principal’s office than white students.¹⁸⁵

Because of their foci on autonomy and accountability, supporters of charter schools have argued that they are the perfect vehicle for addressing the educational needs of students of color. This article points out, however, that charter schools may not be state actors under federal law with respect to student rights. Consequently, students of color may be unwittingly surrendering protections guaranteed under the Constitution in order to enroll in charter schools.

I have already discussed how charters can wield contracts to exclude students from school here. In conclusion, Professor Green commented via email:

The key takeaway about Caviness is that it’s unclear whether the constitutional rights of kids are protected in charter schools. In a NEPC brief, Julie Mead and I point out that charter school statutes can address this confusion by clearly stipulating that children are guaranteed the same rights in charter schools as they would receive in traditional public schools… there are important implications for African-American males with respect to Due Process, suspensions, and expulsions.

Edit 1/3/2012: Thanks for the headsup emails from Karen and Ken. The National Labor Relations Board thinks so too (charters are private not public). They ruled so in the case of a charter school in Illinois. See a discussion here of the potential precedent.