Seven-year-old Tiana Parker is attending a new school in Tulsa this week - and the rest of us would be wise to understand why.
Tiana’s father pulled her out of Deborah Brown Community Charter School earlier this week when school officials barred his dreadlocked daughter from entry because of a policy that forbids “faddish hair styles.”
Can a public school do that? And does it matter that they’re a public charter school?
Historically, when it comes to issues of student expression in public schools, courts have employed a variety of tests to determine whether restrictions on student dress violate First Amendment rights. Some courts apply a two-part test taken from the Supreme Court’s flag-burning cases. Under this test, a court will ask two questions: Did the student intend to convey a particularized message? And is that particularized message one that a reasonable observer would understand?
As an example, a federal court in New Mexico applied this legal test to determine that a student did not have a First Amendment right to wear sagging pants. The student argued that his wearing of the sagging pants conveyed the particular message of African American heritage in the hip-hop fashion and lifestyle. But in Bivens v. Albuquerque Public Schools, the court rejected the student’s First Amendment claim, finding that a reasonable observer would not find a particularized message in his conduct. “Sagging is not necessarily associated with a single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States,” the judge wrote.
Other courts will apply the standard from the famous 1969 case, Tinker v. Des Moines Independent School District, which states school officials cannot regulate student expression unless they can reasonably forecast that the expression will cause a material interference or substantial disruption of the school environment. Or a court could apply the more deferential standard from the 1986 decision in Bethel v. Fraser, in which the U.S. Supreme Court deemed that school officials had greater leeway to regulate student speech that was indecent and lewd. And finally, some courts will analyze student dress challenges under the so-called O’Brien standard. Under the O’Brien test, which is based on a case from 1968, a dress code or uniform policy will be constitutional if the policy is authorized under state law; furthers an important governmental interest; is unrelated to the suppression of free expression; and requires incidental restrictions on First Amendment freedoms that go no further than necessary to further the governmental interest.
So does Tiana Parker’s family have a basis for saying that her First Amendment rights were violated?
As it turns out, if she were enrolled in a traditional public school the answer would still be no better than “Maybe,” and, because her reasons for wearing dreadlocks were not motivated by political or religious interests, a more likely answer is “Probably Not.”
But Tiana wasn’t enrolled in a traditional public school. She was enrolled in a public charter school. And although the case law for free-expression claims is still emerging when it comes to charter schools - which receive public money but are, in effect, private organizations - the early returns would suggest that the answer there is a more definitive “No.”
Consider the story of Michael Caviness, a teacher at a public charter school in Arizona who was fired, and who then sued his former employer for depriving him of his constitutional rights. According to Caviness, the Horizon Community Learning Center was a state actor for all purposes because of its statutory characterization as a “public school,” and because it performed a public function in providing public education.
But the Ninth Circuit Court of Appeals disagreed. “This case presents the special situation of a private non-profit corporation running a charter school that is defined as a public school by state law,” the court explained, before ruling that “a state’s statutory characterization of a private entity as a public actor for some purposes is not necessarily dispositive with respect to all of that entity’s conduct. Rather, a private entity may be designated a state actor for some purposes but still function as a private actor in other respects. Merely because Horizon is a private entity performing a function which serves the public does not make its acts state action.” The court’s ruling added that “except as otherwise specified in Arizona statutes regulating charter schools, or in the school’s own charter, a charter school is exempt from all statutes and rules relating to schools, governing boards and school districts.”
Say what? You mean public charter schools are, for purposes of the law, still private entities in many regards? Like, say, student (or teacher) free-speech rights?
Alarmingly, early rulings suggest that the answer is yes. Indeed, in the Caviness opinion the Ninth Circuit cited a 1996 case of its own, George v. Pacific-CSC Work Furlough, in which it reviewed the complaint of a custodial staff employee of a private entity which operated a correctional facility for the state of California. “After the custodial employee was terminated,” Judge Sandra Ikuta explained, “he sued the private company, alleging that his First Amendment rights were violated because he was terminated for speaking out about safety and security problems.”
Ikuta and her colleagues rejected the employee’s theory that Pacific was a state actor because it was performing and fulfilling a traditional state and government function. “The relevant inquiry,” they ruled, “is whether [Pacific’s] role as an employer was state action” in the employee’s case, and noted that "[a]n entity may be a state actor for some purposes but not for others.” We concluded that while “Pacific ha[d] been granted certain powers and privileges under the law to allow it to function adequately as a prison,” the plaintiff failed to show state action because the “complaint offer[ed] no indication Pacific ha[d] become the government for employment purposes.”
Ikuta went on to add that the U.S. Supreme Court, “as well as case law in this and our sister circuits, permits the state to subsidize the operating and capital costs of a private entity without converting its acts into those of the state. Ultimately, Horizon’s actions and personnel decisions were made by concededly private parties, and turned on judgments made by private parties without standards established by the State.”
In other words, public charter schools are not, under the law at least, full-blown public schools. That means that even if she had wanted to try, Tania Parker would have had no First Amendment standing. And it means that the two million students in the country currently enrolled in public charter schools - approximately 4% of the total student population, and growing - may have no free expression rights whatsoever.
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