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June 6, 2003

Federal Court Insists Charter Schools are "Public Schools"

Homeschooling is the largest successful education reform movement in America, but many people outside the homeschool movement hope that charter schools may transform education, too. A recent federal district court case in Ohio provides a cautionary note. Because many Ohio homeschoolers must choose whether to operate independently or as enrolled students in a "virtual charter school," this recent case is something Ohio homeschoolers should understand.

The Riverside Community School in Cincinnati is a charter school, which fired one of its teachers in 2001 (In Ohio, a charter school is referred to as a "community school," which should not be confused with a private "chartered" school.). The teacher sued for violation of her civil rights, and the school attempted to dismiss the suit by arguing that it was a private school, and not a unit of government. The judge ruled that an Ohio "community school" is a "state actor," and therefore is bound by the same rules that apply to the government.

The court used four legal tests to determine when private conduct may be considered "state action." The four tests that the court identified were: (1) the public function test, (2) the state compulsion test, (3) the symbiotic relationship/nexus test, and (4) the "entwinement" test.

The court concluded that "free, public education, whether provided by public or private actors, is an historical, exclusive, and traditional state function." This satisfied the "public function test." By "free, public education," the court presumably means education funded by taxpayers, as is currently the practice under Ohio's community school law. The court also found that Riverside Community School failed the "entwinement" test writing, "[P]rivate conduct may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations on state actors." The judge concluded that Riverside had been granted the authority to provide free public education to all students in a nondiscriminatory manner. According to the judge, no other entity has been so mandated by the state of Ohio besides local school districts. As such, the judge found that Riverside's conduct was so "entwined with governmental policies" that the court was forced to consider them "public actors subject to the constitutional limitations on state actors."

For homeschooling parents who are committed to providing a distinctively religious education, this case is troubling. The court also notes a Michigan charter school case where the Michigan court assumed, without any need for analysis, that a Michigan charter school is subject to the "separation of church and state" provisions because it was a public school. Home School Legal Defense Association supports the right of all parents to direct the education of their own child. However, HSLDA is committed to warning parents of the legal implications of their choices. Parents who choose an Ohio charter school (community school) need to understand that the public benefit of a charter school education really does come with "strings attached."