First Amendment Rights in Charter Schools?

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 action."  

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.


Anonymous said…
I am sicken at the treatment of that little girl (or young lady - don't know her age). My deepest apologies to her and her family and the community of African Americans. This is racists, perhaps not intentionally, but it was and is.

My son isn't part of the boy scouts. He wants to be. His best friends are. They discriminate, so, even thought we aren't gay, we won't participate in this institution.

If this happen at my school, you bet I would rally parents to clarify this policy. Dread locks, or braids/corn rows, are not faddish.


And the funny thing is, I bet the policy was conceived to ensue no kid (likely WHITE), would show up with a 12" pink Mohawk, shaved on the sides...

I am so, so sorry that is kind of physically-based discrimination is even *attempted*.

Perhaps Michelle Obama and her daughters will hear about this, and the kids will choose to go dread; then they could all 'drop in' at the school.

Oh, please, oh please, oh please; wouldn't that just be the best?

-here's hoping
Anonymous said…
If the same standards apply to straight, curly, or kinky hair, no problem.

However, the standards written are specific only to kinky hair, hence they should be sued for large amounts of money.

A technically correct standard would be, Annie, Lucille Ball, or Malcolm X type hair shall not extend more than 2" above the scalp. All knotting or braiding of hair is prohibited.

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