Supreme Court won't hear charter school dress code case that promised broader fallout

The Supreme Court on Monday declined to take up a case that could have upended the charter school industry, but a legal fight over the future of the embattled segment of public schools is not over.

Justices denied a petition to hear Charter Day School, Inc. v. Peltier after conferring over the case last Thursday. Religious liberty groups, some school choice organizations, plus 10 attorneys general in Republican-led states had asked the justices to intervene after the 4th U.S. Circuit Court of Appeals struck down a charter dress code that required girls to wear skirts.

The appellate court's ruling will stand, including its determination that North Carolina charter schools are "state actors" that work on behalf of the government.

“Today’s announcement is a victory for the thousands of students who attend public charter schools in North Carolina and for the 3.6 million students like them nationwide,” said Ria Tabacco Mar, director of the ACLU Women’s Rights Project, in a statement on Monday.

“Girls at public charter schools have the same constitutional rights as their peers at other public schools — including the freedom to wear pants. We will continue to fight for all girls to learn in safe and equal schools.”

No justice noted any dissent from the high court’s decision to not hear the case. As is customary, the court also offered no explanation for the rejection.

Yet the legal fight has now extended beyond dress codes to entangle public religious charter schools and constitutional limits between church and state, after Oklahoma authorities’ landmark decision this month to approve a public and directly taxpayer-funded Catholic school that teaches religious principles like a private institution.

Litigation over the Oklahoma decision is expected and could someday reach the high court.

Charter schools are public campuses that receive taxpayer dollars and don’t charge tuition, but they have significant autonomy to operate independently and privately — outside the bounds of some state and local regulations that apply to traditional public schools.

Some religious liberty and school choice advocates have seized on that distinction to argue that charters are therefore not state actors, and are instead private entities that do not act on behalf of the government. If that’s true, proponents argue, states would have to permit public religious charter schools.

“We are pleased that the Supreme Court has declined to hear the case, allowing the Fourth Circuit’s decision to stand," said Nina Rees, president and CEO of the National Alliance of Public Charter Schools, in a statement. "Charter schools are public schools and are, in fact, state actors for the purposes of protecting students’ federal constitutional rights."

The Biden administration last month urged justices to deny the conservative-led petition to review the North Carolina case. “A holding that [Charter Day School] is not a state actor would allow States to evade constitutional constraints by delegating core governmental functions to private entities,” Solicitor General Elizabeth Prelogar and a group of Justice Department attorneys stated in their brief to the court.

At least four of the Supreme Court's nine justices must vote to accept a case, according to the court's practice. Courts have found it difficult to discern whether an entity is a state actor, the Congressional Research Service has noted.

Josh Gerstein contributed to this report