Charter schools are public schools — except, apparently, when they aren’t

In a recent Education Week blog post, author and education reformer Sam Chaltain asked a question that, until recently, seemed beyond doubt: Do students in charter schools have First Amendment rights?

The answer is in some doubt as a result of a pair of court rulings absolving charter schools of violating the rights of students or employees.

Unlike truly private schools, charter schools derive their funding and their legal existence from local school districts (that’s where the “charter” comes from). School boards hold life-and-death authority over these schools, and state laws generally require that (unlike truly private schools) they accept all qualified applicants.

Charter schools do enjoy a measure of separation from the government because they are statutorily exempted from certain state oversight requirements that apply to traditional public schools. But the Constitution is hardly “red tape,” and state legislatures have no authority to exempt people from the Bill of Rights.

In the case Chaltain focuses on, Caviness v. Horizon Community Learning Center, a federal appeals court decided that a fired Arizona teacher could not bring a due process claim against the for-profit contractor operating his charter school. The teacher argued that he was constitutionally entitled to a “name-clearing” hearing to rebut the misconduct accusations that prompted his firing — as he would have been at an ordinary public school.

A constitutional claim can be brought only against a government agency or against a private entity that is functionally equivalent to a government agency (for instance, a privately employed police officer deputized by the state to make arrests). In the Caviness case, the Ninth Circuit U.S. Court of Appeal ruled that charter schools are not “state actors” for purposes of employee due process rights, because the service they provide — K-12 education — is not “exclusively” a government function.

The Caviness opinion is weakly reasoned, shrugging off overwhelming evidence (including the opinion of the Arizona attorney general) that charter schools are “public” for all other purposes, including the state open-meetings law.

The opinion is so unpersuasive that, just a year later, a different three-judge panel in the Ninth Circuit refused to follow it in a comparable case arising in Idaho. The panel in that case relied on an Idaho statute that, even more explicitly than Arizona’s, made charter schools the legal equivalent of public schools (disregarding the court’s insistence in Caviness that the way a state defines its charter schools is irrelevant).

We could safely treat the Caviness ruling as an outlier, except that the California Court of Appeals recently used similar reasoning in discarding a student’s claim that he was unfairly expelled from an Orange County charter school.

In that case, Scott B. v. Board of Trustees of Orange County School of the Arts, a 14-year-old was thrown out of a Santa Ana, Calif., charter school for a string of disciplinary write-ups, including bringing a small knife to school and waving it at a classmate in a threatening way. The student argued that he was denied a hearing to present evidence in his defense, which state law requires when a student is expelled from a public school.

But the appeals court decided that a disciplinary removal from a charter school does not count as “expulsion.” The judges explained that, when a student is kicked out of charter school (a school that he and his family voluntarily chose), he has the legal right to reenroll immediately in traditional public school. Because the removal does not interfere with his right to continue receiving a free education, the judges concluded, it is not an “expulsion.”

The Scott B. case was almost exclusively about California state law; the constitutional due-process right to a hearing was mentioned only fleetingly. Still, the takeaway leaves students in California charter schools subject to being summarily removed without the opportunity to defend themselves that the Constitution would require at an ordinary public school.

These rulings still represent a minority view. Most courts regard charter schools as a part of the public school system, bound by the statutory and constitutional constraints that govern all public schools. For instance, Pennsylvania’s Supreme Court has ruled that charter schools are “state agencies” that must respond to requests for records under the Right-to-Know Act. And federal district courts in Ohio, Illinois and elsewhere have allowed students or employees to bring federal civil-rights claims against charter schools.

Students (and employees) should not assume that they have no constitutional protection in charter schools. If the administrators of charter schools do not recognize their duty to respect constitutional boundaries, then clarification from state legislators — as we saw in 2010, when California explicitly extended retaliation protection to teachers in charter schools — is in order. The public should not be asked to subsidize schools that regard basic individual liberties as a bureaucratic annoyance.