Charter Schools as State Actors: Are They Truly Public Schools

The trend of establishing charter schools across the United States has been accomplished by authorization statutes labelling them as public schools. They are supported by public tax dollars but private entities are obtaining charters and in some cases hiring for-profit companies to operate the schools. Private boards of directors replace a locally elected school board to direct the operation of these schools. As teachers find traditional public schools closing and charter schools entering the market where closures have occurred they must choose between moving to a district still hiring fully certified teachers or entering employment with charter organizations. In making that change teachers must consider whether the terms of their employment have changed and understand the nature of their new relationship with school leadership.;As public employees, teachers were protected by constitutional provisions extending that protection to the states through the Fourteenth Amendment. That amendment is what incorporates much of the Bill of Rights and prohibits deprivation of those rights by state action. As charter schools become a larger employer of teachers the question arises whether these schools are also subject to those constitutional provisions in the same way a public school district is when employing teachers. The state action doctrine, developed in Fourteenth Amendment jurisprudence, controls whether those charter school employers must observe constitutional limitations or the employees have lost those protections by becoming charter employees. The question can only be answered by tracking the development and status of the state action doctrine through the decisions of the U.S. Supreme Court.;The state action doctrine has been famously labeled a "conceptual disaster area" and has eluded consistent interpretation for more than a century. Because the law is often developed in a syllogistic pattern supported by building on previous holdings and remaining consistent in interpretation of fact situations most commentators have searched for some consistency in the holdings of the Court by connecting words that appear in multiple decisions. That method has failed to provide a truly consistent interpretation of state action and leads mostly to the "torchless search" for a way out of a camp echoing cave" as described by Professor Black sixty years ago. This study takes a different approach to the decisions to make sense of the changing interpretation of the doctrine through time.;Reading the cases with an eye to the members of the Court and the prevalent political issues of the day reveals first a steady expansion of the doctrine and then a contraction that follows the patterns of those political issues and pressures felt by the Court from time to time. This method uncovers an arc of decisions that follow that expansion and contraction through time and develop an understanding of how new cases might be decided. Because the Court has not dealt with this issue that projection will assist any litigants attempting to claim constitutional protection to shape their cases to provide the best chance of success.