Signing Their Rights Away

A series of court rulings suggests that students who attend charter schools do not have the same rights as public school students…

scalesQuick reader: if you dramatically scale up schools in which students have fewer rights than students who attend traditional public schools, with what do you end up? If you answered *more students with fewer rights,* congratulations! You have won the opportunity to learn more on this important, yet little discussed topic. Our expert witness today: one Dr. Preston Green, a professor of law and educational leadership, who has been monitoring a series of court rulings regarding the rights of students in charter schools. Or make that the lack of rights. Dr. Green warns that both state and federal courts have issued rulings stating that students in charters do not have the same due process rights as public-school students. So what does this mean for cities like Los Angeles where a dramatic expansion of charter schools is on the table? *Half of the publicly-funded schools in Los Angeles might be legally permitted to ‘dismiss’ students without due process.* says Dr. Green. *We have to ask ourselves if such a scenario is acceptable.*

I asked Dr. Green to explain some recent court rulings on student rights, and how they relate to the larger debate over whether charter schools are public or private entities. Take it away, Dr. Green. Court is in session…

By Preston Green
Charter advocates claims that charter schools are *public schools* because *they are open to all, do not charge tuition, and do not have special entrance requirements.* But what about student rights?  State and federal courts have issued rulings suggesting that students attending California charter schools do not have the same due process rights as those enjoyed by public-school students. In Scott B. v. Board of Trustees of Orange County High School of Arts, a state appellate court found that charter schools were exempt from due process procedures that applied to public-school expulsions. In reaching this conclusion, the court observed that the state education code generally exempted charter schools from rules that applied to traditional public schools, and the expulsion statute was one of those rules.

In reaching this conclusion, the court observed that the state education code generally exempted charter schools from rules that applied to traditional public schools, and the expulsion statute was one of those rules.

Schools of choice
Corey 2The
Scott B. court also distinguished charter-school dismissals from public-school expulsions. The court characterized charter schools as *schools of choice* that children were not required to attend. Thus, when a charter school dismissed a student, that student could immediately return to a public school. By contrast, a student who was expelled from a traditional public school had to complete the terms of his expulsion before returning to the public school systems. In other words, the court concluded that charter-school dismissals didn’t raise the same due process concerns as public-school expulsions. But as Rosa Hirji, the co-chair of the Children’s Right Litigation Committee of the American Bar Association, has pointed out, California school districts don’t always take back students who have been dismissed from charter schools with open arms. 

State actors?
The issue of whether charter schools are considered *state actors* is also relevant here. In Caviness v. Horizon Community Learning Center, the U.S. Court of Appeals for the Ninth Circuit Court, which has jurisdiction over California, held that a private corporation that operated an Arizona charter school was not a *state actor* with respect to employment decisions under 42 U.S.C. § 1983. In the Caviness case, a teacher claimed that a charter school fired him without due process, thus depriving him of his civil rights in violation of § 1983. The court ruled that the charter school statute exempted the corporation from all rules related to school districts, including rules requiring hearings after dismissals.

Under the analysis used by the Caviness court, California charter schools might not be considered *state actors* for student discipline purposes. Last year, California legislators had the opportunity to address this problem. Senate Bill 322 would have guaranteed that charter-school students receive the same due process rights as public-school students. The California Charter Schools Association opposed the bill, which has since been tabled.

LA-TImes-Broad-Protest-PhotoMajor implications
The
Scott B. and Caviness decisions have major implications for a city like Los Angeles, where Eli Broad has proposed shifting half of Los Angeles’ public school students into charter schools. If Broad gets his wish, then half of the publicly-funded schools in Los Angeles might be legally permitted to *dismiss* students without due process. Also, other charter schools in Los Angeles might refuse to enroll these dismissed students because of their legal status as *schools of choice.* Furthermore, the city’s public schools might refuse to enroll some of these dismissed students, but instead treat the charter schools’ disciplinary decisions like expulsions. To put it bluntly, the only educational option that might be left for some dismissed charter school students would be alternative schools.

If Broad gets his wish, then half of the publicly-funded schools in Los Angeles might be legally permitted to *dismiss* students without due process.

We have to ask ourselves if such a scenario is acceptable. Parents might be inadvertently signing away their children’s due process rights when they attend charter schools.

Green

Preston Green is the John and Carla Klein Professor of Urban Education at the Neag School of Education at the University of Connecticut. He is also a professor of educational leadership and law. Read more of his scholarship on the legal status of charter schools here and hereFollow him on Twitter at @DrPrestonGreen.

 

26 Comments

  1. The U.S. Constitution mostly protects American citizens from their own government but doesn’t do as much to protect them from private sector businesses where most Americans work. The move to privatize the U.S. public sector, where workers have more protections than workers in the private sector, thanks to the U.S. Constitution, is also stripping public sector workers of those due process protections. Labor unions that offer protection to workers have been under attack for decades until less than 7% of private sector workers belong to labor unions. About a third of public sector workers belong to labor unions but even those protections are under attack as teachers are starting to lose court cases challenging their due process rights as public sector employees. I think the result, if the assault on due process rights and American workers is successful, is a return to the era before President Teddy Roosevelt’s support of labor unions in the early 20th century and the Fair Labor Standards Act of 1938. Prior to this, 40% of Americans lived in poverty and less than 8% of 17/18 year olds graduated from high school—and it was much worse for minorities.

    Today, in New Orleans, for instance, we have already seen what happens to thousands of children that the corporate charter schools that now dominate that city expel. With no public schools left, those children end up on the streets where there is a harsh poverty to prison pipeline in place feeding the private sector, for profit prison industry that lobbies Congress for more laws and longer prison sentences to boost profits.

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  2. What is the status of the many charter schools operated by the local elected school boards? All of the charter schools in Kansas are operated by the school district and most of the charter schools in Wisconsin are operated by the school district.

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    1. Even charters that are technically part of the school district may be exempt from the codes of conduct that limit suspensions, for example, as is the case here in Massachusetts. Whenever you see references to autonomy from district rules, that can include due process rights for students.

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      1. So you would say that the crucial difference between public schools and all other schools is the nature of the due process rights for students?

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        1. The crucial difference between public schools and charter schools is that in important respects, including student rights, charter schools aren’t public. These court cases are enlightening because the charter schools are making the argument that they’re not public when it comes to, say, student discipline or teacher due process, and the courts keep siding with them. The issue of student rights is important because it’s so little understood, even by the parents who are putting their kids in these schools, and that in a growing number of cities you have a situation where students in the two systems are treated very differently.

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        2. I think it wold be worthwhile to post about what you think are the crucial differences between “public schools” and “charter schools”. Control by an elected school board lets some charters in and leaves the largest public school district in the country out. Not allowing admission by lottery rules out many magnet programs long part of a public school district, and qualified admission high schools like Thomas Jefferson and Stuyvesant only admit based on standardized test scores. I see a fuzzy world where these lines are extremely hard to draw.

          Students may well have different rights in both charter and public schools in different states (the US Court of Appeals for the Ninth Circuit decision is not controlling in my state, for example), so it may be difficult to draw lines based on student rights that make the divisions you would like them to make. Can you draw such a line without leaving all the schools in some states out, or including all the charter schools in other states in?

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          1. Great suggestion. I think it would be really helpful to go through all the relevant court cases in recent years and look at what charter schools themselves have argued about their legal status. I will call the post “Am I a Man, or Am I a Muppet?” The fuzzy world you describe where there are a lots of different kinds of schools w/ a web of different rules is actually getting clearer. As charter schools serve a growing number of kids in a growing number of cities, it makes more sense to think in terms of systems of schools governed by different laws and policies rather than individual schools with different rules. Adding this to my list, which, alas, is quite long!

          2. I look forward to the post.

            I think you have a difficult task ahead if student’s rights and responsibilities are to be an important way to differentiate “public schools” and “charter schools”. It seems likely to me that you will find the “public school” system in some states on the same side of the divide as a “charter school” in other states. In things as simple as internet posting have resulted in different courts ruling in different ways. Compare, for example Doninger v. Niehoff , a second circuit court opinion to Layshock v. Hermitage School District and J.S. ex rel. Snyder v. Blue Mountain School District, both third circuit court opinions.

          3. If you’re interested, this paper on the Legal Status of Charter Schools in State Statutory Law is a great place to start. The authors go through and look at how courts have been ruling on various issues, including student rights, fiduciary responsibilities, etc.

          4. I will certainly take a look. A fast read seems to indicate that much of the article is concerned with charter schools that have their own independent boards, not with charter schools like those in Kansas or Wisconsin that are operated by the local school board.

            I certainly applaud the call for clarity in the laws governing all schools in the paper and would wish that public school students under the jurisdiction of the Second Circuit Court did not have to sign away more rights than do public school students under the jurisdiction of the Third Circuit Court.

    1. You’re welcome – and I didn’t have to do much. Just find someone really smart who actually knows some things and help him get his knowledge out into the world. Thanks for reading!

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  3. I don’t think it’s right to discriminate a student by suppressing their rights on the basis of being in a charter school. They should be able to enjoy the same due process rights as those in public schools.
    This is a really great post. Thanks for sharing and bringing these discrepancies to the limelight.

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    1. Bradley,

      Students in some traditional public schools do not enjoy the same due process rights that students in other traditional public schools enjoy. Their due process rights are defined by different courts, and the courts do not agree on the due process rights. Which set of due process rights would you have students at charter schools have?

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      1. Teachingeconomist,
        The fact that courts do not agree on the due process rights is where the challenge comes in. However I would prefer the due process rights applied to all students be fair to every student regardless of the school the attend whether chartered or public. A situation where a student and their guardian/sponsor/parent feel they got a fair ruling. Knowing that even a student in another school would have gone through similar due process rights.

        However if a student feels that had they been in a particular traditional public school they would have gotten a fairer ruling e.g they would have escaped expulsion, then that’s where I feel it’s not right.

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        1. I agree that students that the fact that students are not treated the same across the traditional public schools is a problem. My point is simply that if you are going to use due process rights to differentiate charter schools from traditional public schools, you need to take into account that due process rights differ between traditional public schools. If your not careful, you may decide that traditional public schools are on the charter school side of your line, but if you work hard to make sure your line puts all traditional public schools on one side and all charter schools on the other side, you risk having a criteria that is constructed solely to pub schools on one side or the other and pretty much meaningless for any other purpose.

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