National Conference of State Legislatures (NCSL)
Public Schools For Sale?
Robert Skeels | A legal argument for why privately managed charters are not “public schools”
Skeels is a Los Angeles based social justice writer, public education advocate, and immigrant rights activist. He holds a BA in Classical Civilization from the University of California at Los Angeles (UCLA), and is a Law Student at Peoples College of Law (PCL).
Generally charter schools are not public schools. This has been long established by both existing case law and public policy. The Washington State Supreme Court (2015) held that charter schools are not “common schools” because they are governed by appointed rather than elected boards. The 9th Circuit US Court of Appeals (2010) ruled that charter schools are not “public actors.” The California Court of Appeals (2007) ruled that charter schools are not “public agents.” Additionally, the National Labor Relations Board (NLRB) joined scores of other government agencies in unequivocally determining that charters are, in NLRB’s words, “private entities.”
By definition if a charter school is operated by a for-profit company, or by a 501c3 non-profit corporation (e.g. Harlem Success Academy), then it is not a public school. The United States Census Bureau frames this latter issue best:
> “A few “public charter schools” are run by public universities and municipalities. However, most charter schools are run by private nonprofit organizations and are therefore classified as private.” (US Census Bureau. (2011). “Public Education Finances: 2009 (GO9-ASPEF)”. Washington, DC: US Government Printing O ce. Print. vi).
Because these lucrative charter schools are not public, and therefore not subject to even a modicum of public oversight, they are able violate the constitutional rights of their students. The decision in Scott B. v. Board of Trustees of Orange County High School of the Arts saw scholar Rosa K. Hirji, Esq. write:
> “The structures that allow charter schools to exist are marked by the absence of protections that are traditionally guaranteed by public education, protections that only become apparent and necessary when families and students begin to face a denial of what they were initially promised to be their right.” (American Bar Association https://apps.americanbar.org/litigation/committees/childrights/content/articles/winter2014-0114-charter-schools-upholding-student-rights.html )