Having it Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools

Abstract

This Article discusses how charter schools have used their hybrid characteristics to obtain the benefits of public funding while circumventing state and federal rights and protections for employees and students that apply to traditional public schools. The first Part explains how charter schools have emphasized their “public” characteristics to withstand state constitutional challenges that they are ineligible for public funding because they are private schools or fall outside of a system of public schools.

The second and third Parts of this Article explain how charter schools have emphasized their private characteristics to avoid having to comply with state and federal protections that protect employees and students. Specifically, the second Part discusses how privately run charter school boards and EMOs have evaded state union election laws by arguing that they are private entities that are covered by the National Labor Relations Act (NLRA), a federal statute that governs private-sector employment. The third Part discusses how charter schools have attempted to evade federal constitutional and statutory protections for employees and students by arguing that they are not state actors pursuant to 42 U.S.C. § 1983, a federal statute that establishes a cause of action for deprivations of federal constitutional and statutory rights under the color of state law. These Parts also point out that attempts to circumvent state and federal protections for students and employees may have unintended consequences, such as inviting federal involvement in charter school labor policies, or causing state courts to revisit the question of whether charter schools are public schools eligible for funding under state constitutional law.