N.C. Charter School Operator Petitions Supreme Court

N.C. Charter School Operator Petitions Supreme Court


N.C. Charter School Operator Petitions Supreme Court
To Reverse Appellate Court Ruling That
“Profoundly Threatens” America’s Charter Schools

WASHINGTON, DC, Sept. 12, 2022—Charter Day School, Inc., a North Carolina charter school operator that has been criticized by activist organizations because of its student uniform policy, asked the Supreme Court today to “review and reverse” a recent appeals court ruling holding the policy unlawful. The 10-6 ruling by the Fourth Circuit Court of Appeals in Richmond was issued June 14.

The organization’s “Petition for a Writ of Certiorari” is based on the Fourth Circuit’s finding that the private non-profit charter school operator is a “state actor” and, in the court’s opinion, bound by the rules and regulations that control government-run public schools. Charter Day School, Inc., maintains that the Fourth Circuit ruling is flawed, running counter to long-standing analogous state-action rulings by both the Supreme Court and three federal appellate courts.

“North Carolina charter schools—like many throughout the Nation—build upon a critical insight: Allowing private entities to operate publicly funded schools with minimal government oversight supercharges educational innovation and expands parental choice.

“The [court of appeals] decision … profoundly threatens this model,” Charter Day School, Inc. officials say, by declaring that the private educational corporations that run charter schools—along with their volunteer boards—are “state actors subject to suit under 42 U.S.C. 1983 [which allows individuals to sue for alleged constitutional violations], even for policies they design with no government input whatsoever. This holding undoes the central feature of charter schools by treating their private operators as the constitutional equivalent of government-run schools.”

Citing Fourth Circuit Judge A. Marvin Quattlebaum, Jr., one of six dissenters in the June 14 ruling, the school notes that prior to the June 14 decision “neither the Supreme Court nor any federal appellate court” had ever concluded that a publicly funded charter school is a state actor under 42 U.S.C. 1983. Indeed, following Supreme Court guidance in analogous cases, “the First, Third and Ninth Circuits have all held that a private education contractor does not engage in state action, unless the state coerced or encouraged the challenged conduct.”

Classical Charter Schools of America

Charter Day School, Inc.’s petition argues that the Fourth Circuit ignored the prior rulings that addressed “the same or very similar issues” and reached the opposite conclusion. The petition also takes strong issue with the Fourth Circuit’s finding that “providing education is a traditionally exclusive state function—like holding elections or exercising eminent domain—despite centuries of evidence to the contrary.” This finding appears to have been based not on any actual provision in North Carolina law, but on the fact that charter schools typically are called ‘public charter schools.’

The petition for certiorari stresses that far more is at stake than the school’s “parent-designed” school-uniform policy, requiring girls to wear skirts, jumpers or skorts (shorts that look like skirts), which most activists and journalists have focused on. “The Fourth Circuit’s rationale lacks meaningful ‘limiting principles’ and would cover charter-school operators throughout the country,” school officials warn. This would threaten the independence of such schools and, as Fourth Circuit Judge J. Harvie Wilkinson III warned in his dissent, “send … education in a monolithic direction, stifling the competition” that spurs educational improvement.


The North Carolina Charter School Act, enacted in 1996, aims to “improve student learning” and “encourage the use of different and innovative teaching methods.” The goal is to “provide parents and students with expanded choices” in “educational opportunities.” The statute deems charter schools to be “public schools” in the sense that they are open to all, tuition-free, and receive state funding for each student that enrolls. The similarities with government-run public schools “end there,” the Charter Day School, Inc. petition stresses.

North Carolina gives charter-school operators wide discretion to devise educational policies, free of government interference. Indeed, the Charter School Act states clearly that charter schools “operate independently of existing schools” and are “exempt from statutes and rules applicable to a local [governmental] board of education.”

Charter Day School, Inc., founded in 1999, is located in Leland, NC, near Wilmington, and holds the charters for four schools now known as the Classical Charter Schools of America (CCS-America). The original school in Leland currently enrolls nearly 1,000 students in kindergarten through eighth grade. The three other CCS-America schools, in downtown Wilmington, Whiteville, NC, and Southport, NC, enroll approximately 1,700 additional students. All four are Title 1 schools, serving high proportions of low-income students, and outperform most of the district schools in the areas they serve. The schools stress traditional values, such as truthfulness and respect, and use a classical curriculum and proven teaching methods, such as phonics-based reading instruction, grammar lessons beginning in kindergarten, and teaching history chronologically, starting in first grade. Students study Latin beginning in fourth grade.