This is interesting.
You may have heard of this issue of a little girl enrolled in a charter school in Tulsa, Oklahoma was sent home because she came to school with dreadlocks and they have a policy against "faddish hair styled" that includes dreadlocks. Her father pulled from the school. Her new school has no problem with her hair and that school is a regular public one.
(As an aside, the issue of hair is a particularly sensitive one for African-Americans. In fact, comic Chris Rock made a documentary, Good Hair, about this issue because of his concerns for his own daughters. When he went on Oprah, it was one of the most illuminating shows she ever had.)
But what this article in Ed Week points out is not whether a charter school can have a dress code - any school can - but could this little girl's First Amendment right have been violated?
More to the point, are charters really public schools where students have First Amendment rights? The answer may be no.
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 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."
In a case in Arizona about a teacher at a charter school, the 9th Circuit Court of Appeals said:
"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
Apparently, this is not the only case like this because a private company providing custodial work for a state prison in California prevailed and did not have to uphold one employee's claim to First Amendment rights.
If you look at these early rulings,
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.