Quiz time! Are charter schools allowed to violate students’ civil rights?

  • A. Yes
  • B. No
  • C. Some
  • D. We don’t know yet

The correct answer is “D – we don’t know yet.” Why? Because lawsuits over civil rights violations are being decided different ways. The key question is whether charter school management organizations count as “state agents” — that is, acting on behalf of a government body.

You might think it’s a straightforward question, but it’s not. Federal law is inconsistent. Some courts have decided that both for-profit and nonprofit management organizations, as private contractors, are not state agents and do not have to grant students and teachers the same constitutional rights.

Other courts have found that they are state agents.

Part of the reason for these different opinions is that charter school setups vary between states and even between school districts in the same state. Another part is that charter schools are seen as separate from charter school management organizations. Even when a school is considered public, the management organization is private.

It gets even trickier. In Caviness vs. Horizon Community Learning (filed in Jan 2010), the 9th Circuit Court found that charter schools are “state actors” in some respects but not in others — even if they are designated as “public schools” by state law. The decision pointed out that “a private entity may be designated a state actor for some purposes but still function as a private actor in other respects.” (p.75) So some constitutional protections apply and others don’t.

What’s at stake are the civil rights of our children, including:

the Due Process clause, which requires due process when expelling students or firing employees;

the Equal Protection Clause, which protects against discrimination based on race, gender, or other factors;

and the Establishment Clause and the Free Exercise Clause, which together provide for the separation of church and state and the free exercise of religion.

And some charter school advocates are fighting a legal battle to make sure that charter school companies are exempted from lawsuits over violations of these rights. In an article written for the University of Detroit Mercy Law Review, “Charter Schools: Are For Profit Companies Contracting for State Actor Status?”  Bradley T. French writes, “the essence of charter school success comes from privatization of their operation. . . While they may be given initial authority and some funding by the states, they are managed by private charter school management companies.”  French argues that because charter school management companies are private contractors, they are not state agents. This debate is ongoing.

We have to keep a close eye on this. There is a debate raging between people who are for and against charters. But beyond that simple yes-no question are complexities that could have serious consequences. When charter school legislation comes up in the state of Washington, we need to examine it closely, or else we risk the sacrifice of our children’s constitutional rights.

So let’s get informed.

More to explore:

Article about the Caviness vs. Horizon Community Learning Center decision

Full text of Caviness vs. Horizon Community Learning Center

Bradley T. French, “Charter Schools: Are For Profit Companies Contracting for State Actor Status?” University of Detroit Mercy Law Review, vol 83:251, 2006.

Maren Hulden, “Charting a Course to State Action: Charter Schools and § 1983,” Columbia Law Review, Vol. 111:1244, 2011.

Kristin