With Separation of Church and State on the Line, Supreme Court Makes an Unexpected Move
On the eve of last week’s annual School Choice Week celebration, the Supreme Court gave millions of parents, teachers, and students, including the public charter school community, a surprising gift. Many Americans are likely unaware of pending legal activity in Washington, D.C., that could dramatically alter public education as we’ve known it. The pending litigation is a big deal, and the Supreme Court acted with common sense by seeking outside advice on whether or not to take the case.
The case at issue is Peltier v. Charter Day School. The defendant, Charter Day School (CDS), has appealed an en banc ruling from the Fourth Circuit Court of Appeals to the Supreme Court. The Fourth Circuit’s ruling legally designated the North Carolina public charter school as a public school, finding that it had acted under the “color of state law” when it implemented a policy prohibiting girls from wearing pants to school.
The distinction matters. The Fourth Circuit is the first federal court to formally rule that public charter schools are in fact public institutions, as they have been for all practical purposes for 32 years. Public institutions must abide by the U.S. Constitution. By requiring girls to wear skirts, no matter the weather or the activities they engage in, CDS committed gender discrimination in violation of the Constitution’s Equal Protection Clause.
Charter Day School argues that public charters are actually private schools masquerading as public schools, though they’re funded by taxpayer dollars and subject to state oversight and federal funding statutes. If the Supreme Court were to agree that CDS—and by extension, all public charter schools—are private, CDS would be free to implement any rule it wants. That would include discriminatory policies around gender, race, religion, disability, sexual orientation, and so on. With limited exceptions, private school students don’t enjoy the same constitutional protections as students whose education is the responsibility of state actors.
If the deeply conservative CDS is not subject to the Constitution, it would also be freed from protections regarding the separation of church and state. No doubt, CDS would commence with religious instruction on the public dime.
Religious and conservative organizations are lobbying the Court to take the Peltier case and to rule that while Charter Day acts like a public school, it’s really not one. Religious advocates want to access education tax dollars to run faith-based operations while being freed from the basic constitutional requirements that constrain all other public agencies. In Oklahoma, the Catholic Church is applying for a charter to run a virtual school. Arizona’s most successful charter school operator, Great Hearts Academies, which operates 42 charter schools, has quietly been courting churches and pastors to partner in a network of private Christian academies dubbed Great Hearts Christos. Plans call for three church-based schools to be opened in the Phoenix area this August.
Surprisingly, given both the lobbying and its own recent track record of favoring religious schools—including a ruling last year that state governments that give funding to private schools must share funds with schools that teach religious doctrine—the Court did not immediately grant CDS’s petition for certiorari. It’s even more novel when you consider that only four Supreme Court justices must give a thumbs-up on any case for the Court to agree to hear it. There are six conservatives on the Court, all raised Catholic, and most have made no bones about the role they desire for Christianity in the public domain. The overturning of Roe v. Wade is a case in point.
No one knows why at least four justices voted to refer Peltier to the solicitor general for advice, but it’s likely a good thing that they did. President Biden appointed the current solicitor general, Elizabeth Prelogar. Early in her career, Prelogar clerked for both Justices Ruth Bader Ginsburg and Elena Kagan. It’s hard to imagine Justices John Roberts, Clarence Thomas, Brett Kavanaugh, Samuel Alito, Neil Gorsuch, and Amy Coney-Barret seeking advice from that quarter, but at least one of them must have done so.
The solicitor general has such a close nexus to the Court that he or she is sometimes referred to as the “10th Justice.” When the Court issues a “Call for the View of the Solicitor General” (CVSG), the solicitor general researches the law and the facts, then briefs the Court. The justices have no obligation to accept the recommendations, but historically, they carry significant weight.
The Court usually issues a CVSG a few times per session. When it does so, it’s often a sign that the underlying case has the potential for great impact or the disruption of how the government administers programs—like public education.
It’s good to see that at least one conservative on the Court recognizes both the historic and pragmatic implications of Peltier. Erasing the long-established line separating church and state in public education would likely divide the country even more sharply than striking down Roe.
The Founders were wise when they established underlying concepts and practices that have so far kept America relatively free from the violent religious oppression and “holy” wars that drove many of our ancestors to migrate to America in the first place.
In the months while we wait for Solicitor General Prelogar’s advisory brief and the Court’s ultimate decision on certiorari in Peltier, expect to hear much from the right about the case. You won’t hear them saying that charter schools should be allowed to discriminate, or that these schools are entitled to teach whatever they wish with public monies. No, you’ll hear more about “the need for unique educational choices.” Or complaints about “suffocating litigation or “an attack on religion.” Don’t be fooled.
True proponents of public school choice reject discrimination, by gender or otherwise. We know that equitable funding formulas, increased parental power, diverse learning models, more individualized college and career preparation, culturally responsive curriculum and pedagogies, and wraparound services for marginalized students are what is needed to modernize our school systems – along with freedom from stifling bureaucracies. The autonomous, secular schools striving to offer those innovations are the ones we celebrated last week.
Let’s hope that Solicitor General Prelogar convinces the Court to recognize that the en banc Fourth Circuit got it right: public charter schools are public. The Court should deny certiorari to avoid another outcome that would upend the Constitution.
