Charter Schools Facing Questions Regarding Constitutionality

By Mia Holtzein-Sirman, Staff Writer

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Charter schools are publicly funded yet independently run. This means they rely on government funding but are not required to adhere to a state’s curriculum or standards. Charter schools were conceived to allow more flexibility in teaching styles and curriculum planning.[1] They are not part of public-school districts but are run by private organizations and overseen by the state or local government.[2] Charter schools are meant to be innovative and reactive to the needs of students to further their education. However, charter schools are currently facing scrutiny as courts seek to determine if they should be considered state actors and, thus, be subject to constitutional restrictions. In Charter Day School Inc. v. Peltier, parents sued a charter school because its dress code allegedly violated the Fourteenth Amendment’s Equal Protection Clause.[3] Oklahoma groups, including the state’s Attorney General, have challenged a proposed charter school run by the Catholic Church on the grounds that it will unconstitutionally promote Catholicism using public funds.[4]

To be considered a state actor, an entity must either be a part of the government or act on its behalf. Private citizens and businesses cannot be sued for constitutional violations.[5] Although this has traditionally only applied to the federal government, the Fourteenth Amendment extended this doctrine to state governments.[6] Thus, for charter schools to be sued for violating the Fourteenth Amendment’s Equal Protection Clause or the First Amendment’s Establishment Clause, they must be considered state actors. This is a difficult determination, as there is no “bright line test” separating state action from private action, and it is a fact-specific determination.[7]

In the case of Charter Day School Inc. v. Peltier, the Fourth Circuit Court of Appeals determined that charter schools in North Carolina are state actors because they are fulfilling a duty to provide free education in the state, which is required by the North Carolina Constitution.[8] Additionally, they are state actors since they are only given grants to operate through a state board.[9]

Charter Day School, Inc. arose from a dress code requiring that all girls attending the school must wear skirts or dresses. The school’s founder stated that this was to preserve “chivalry” and that women are “regarded as a fragile vessel that men are supposed to take care of.”[10] The parents of the girls impacted by the dress code sued the school under the Fourteenth Amendment because they believed the rule unfairly impacted girls, making it harder for them to play, feel comfortable, and stay warm.[11] The school asserted that it was a private actor and that the Fourteenth Amendment should not apply. The court determined that the school is a public entity based on North Carolina’s designation of charter schools as public schools and their employees as public-school employees.[12] Additionally, it found that school choice does not protect the Charter Day School because the government cannot offer an educational option with discriminatory policies. The court added that if people want to attend a “discriminatory” school, it must be a private one.[13]

While the Fourth Circuit Court determined that charter schools are state actors based on the North Carolina Constitution, the Supreme Court has asked the U.S. General Solicitor to weigh in on the questions of constitutionality.[14] Conservative groups disagree with the Fourth Circuit Court’s decision, as they fear that designating charter schools as state actors will limit the innovation they provide and the schools will be subject to Constitutional challenges.[15] On the other hand, civil rights advocates are concerned that a reversal of the state actor designation will cause charter school students nationwide to lose their constitutional protections.[16]

Recently, the Catholic Archdiocese of Oklahoma City applied to open a virtual religious charter school in Oklahoma to serve rural Catholic families.[17] On April 11, 2023, the initial proposal for the school was rejected.[18] However, the Church was not deterred and numerous individuals, including Governor Kevin Stitt of Oklahoma, support the efforts to open the nation’s first religious school funded as a charter school.[19] These individuals believe that Oklahoma has favorable public school regulations that could allow a state-funded religious school to exist.[20] Additionally, the supporters cite two recent Supreme Court cases they believe support their efforts to open the school. Both cases determined that preventing religious schools from receiving state money through scholarship programs or student-aid tuition violated the First Amendment.[21] Thus, supporters of the Catholic charter school proposal believe the precedent exists to allow state funding of religious charter schools in Oklahoma.

The opponents of creating a religious charter school argue that its creation would violate the Establishment Clause of the First Amendment.[22] They state that Oklahoma has already determined that charter schools are public schools through the Oklahoma Charter Schools Act, which plainly defines charter schools as public schools established by a contract with a school district or government board.[23] The Act also defines a charter school’s numerous characteristics as identical to public schools.[24] Additionally, prior court rulings in Oklahoma have determined that charter schools are public schools, and the Department of Education website defines them as such. 

Because it has been established that Oklahoma charter schools are considered public schools in the state, the opponents argue that creating a religious charter school would violate the Constitution. There are two parts to their argument that it violates religious freedom.[25] First, public schools should not be allowed to preach religion as a matter of religious freedom. Second, it is against religious freedom to use taxpayer dollars to fund any religious institution. This would clearly go against the wishes of Oklahoma taxpayers, who in 2016 rejected an initiative that would have allowed public money to fund religious activities.[26]

According to the current laws in certain states and precedents set by the Supreme Court, charter schools are state actors. Although charter schools can be useful in promoting innovation and exploring new teaching methods, they may still be bound by the Constitution. Thus, they cannot violate it by preaching about religion or instituting unfair dress codes where they are deemed to be state actors.

[1] Jacob Fischler, Understanding Charter Schools vs. Public Schools, U.S. News (October 19, 2021),

[2] Id.

[3] Mark Walsh, Supreme Court Asks for Biden Administration’s Views on Legal Status of Charter Schools, Education Week (January 9, 2023),

[4] Beth Wallis, Oklahoma Catholic Church Hopes to Open First Publicly Funded Religious Charter Schools, NPR (April 10, 2023),

[5] The State Action Doctrine for Federal Constitutional Claims, Bona Law (August 18, 2020),


[7] Nora De La Cour, This Potential SCOTUS Case Could Change the Course of US Charter Schools, Jacobin (January 24, 2023),

[8] Bonnie Peltier v. Charter Day School, Inc., 37 F.4th 104, 117 (4th Cir. 2022). 

[9] Id.

[10] Id. at 125.

[11] De La Cour, supra note 7. 

[12] Walsh, supra note 3. 

[13] Charter Day School Inc., 37 F.4th at 126. 

[14] Walsh, supra note 3.  

[15] Ed Whelan, En Banc Fourth Circuit Sharply Divides on Whether Charter School is State Actor, National Review (June 15, 2022),

[16] De La Cour, supra note 7. 

[17] Wallis, supra note 4. 

[18] Jonah McKeown, Oklahoma Board Rejects Initial Proposal for Catholic Charter School, Catholic News Agency (April 12, 2023),

[19] Id.

[20] Id.

[21] Id.

[22] Legal Memorandum on Whether Oklahoma Charter Schools May Provide Religious Education, Americans United (January 31, 2023),


[24] Id.

[25] Rachel Laser, Public Schools Must Never Be Allowed to Become Sunday Schools, The Oklahoman (April 14, 2023),

[26] Id.

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