All Aboard!: Making Charter School Boards All-Purpose State Actors Under the Supreme Court’s Amtrak Case

Abstract

Although charter schools are commonly characterized as public schools, they are really hybrid institutions that possess both public-school and private-school characteristics. Because of this hybrid nature, it is unclear whether charter school boards are state actors that must comply with the Constitution. Indeed, the Fourth and Ninth Circuits have reached different conclusions regarding this question. In the meantime, a virtual charter school board in Oklahoma approved a proposal for the country’s first religious charter school. The legality of this charter school will turn on whether Oklahoma charter schools are state actors for Establishment Clause purposes. If they are not state actors under this constitutional provision, then prohibitions against religious charter schools might violate the Free Exercise Clause.

To avoid this ambiguity, states that want their charter schools to comply with all constitutional provisions should amend their enabling statutes to establish charter school boards as government-created and -controlled corporations. The benefit of this designation is that these entities are state actors for all purposes, just like any other governmental entity. The Supreme Court established the guidelines for establishing this status in a federal governmental action case, Lebron v. National Railroad Passenger Corporation (also known as Amtrak). This article explains how states can amend their laws pursuant to Lebron to ensure that charter school boards are all-purpose state actors.