Charter Day School v. Peltier is a case that has no business being in front of the Supreme Court, and yet, there's a very good chance it will get one of the few precious slots for arguments before the year is out. On its surface, the case is over a matter that the Supreme Court has, before now, largely treated as beneath their attention: Dress codes in secondary education.
The case was initially decided last summer by the Fourth Circuit Court, which found that it's gender discrimination to force junior high girls to wear skirts while boys are allowed to wear pants. That finding should be obvious and unassailable, yet court watchers are deeply worried that the Supreme Court will take it up soon, and not just because of Justice Samuel Alito's nostalgia for girls in knee socks and plaid skirts.
No, the real danger here is the six Republican justices will see a case about outdated dress codes as an opportunity to advance a long-term and deeply unpopular right-wing agenda: Destroying secular public education and replacing it with theocratic indoctrination.
It was official school policy, he explained, to treat girls "more gently than boys."
On its surface, this case should be a cut-and-dry one. As Judge Barbara Milano Keenan explained in the Fourth Circuit opinion, Charter Day school in North Carolina "receives 95% of its funding from federal, state, and local governmental authorities" and is open to "all students who are eligible to attend North Carolina public schools." Its dress code, which forced girls to wear skirts and boys to wear pants, isn't just sexist on its surface. The justifications for this policy were proudly discriminatory. The school's founder, Baker Mitchell, argued that the dress code was necessary to teach kids that "women are regarded as a fragile vessel that men are supposed to take care of and honor." It was official school policy, he explained, to treat girls "more gently than boys."
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Rather than pretend this isn't discrimination, however, the school is arguing that it shouldn't have to abide by federal and state laws banning discrimination. That, too, should be an asinine argument, as the school is taxpayer funded. As legal experts Jessica Mason Pieklo and Imani Gandy of the "Boom! Lawyered" podcast point out, under normal circumstances, the Supreme Court would never take up such a specious case. But this is not a normal Supreme Court. This is a court that's determined to pull every lever in its power to undermine the First Amendment and redefine "religious freedom" as the right of Christian conservatives to force their faith on others. This case gives them an opportunity to advance that agenda.
To understand why, it's crucial to look at why the Christian right is so gung-ho about charter schools. As Kathryn Joyce reported in a multi-part series for Salon, Christian conservatives put charter schools at the center of their long term plan to replace real education with right-wing indoctrination. Under the guise of "school choice," they are creating these alternative schools that peddle far-right views, often ones that are completely false, about American history and science. Even though it's technically illegal for these schools to use taxpayer money to promote religion, the fact that they're run by private organizations means they often lack oversight and can skirt the boundaries or even straight-up break the laws against proselytization. The hope is that, by draining public money away from ordinary public schools and into charter schools, conservatives can destroy the former and leave parents with no options other than putting their kids in schools that are geared towards right-wing indoctrination.
Despite the already appalling leeway such schools have to violate the constitutional rights of students, they still are technically expected to obey laws regarding religious freedom and equal protection, something that conservatives have been angry about for years. After Donald Trump got three justices seated on the Supreme Court, giving Republicans a solid 6-3 majority, however, conservatives correctly believe they've got a shot at tearing up even the most straightforward readings of constitutional law in order to start building the theocratic systems of their dreams.
Conservatives are clearly hoping the Supreme Court will rule that these privately run schools can have it both ways: They can take public funding and function as replacements for public education, but they don't have to follow the laws that protect public school students from discrimination. A broad ruling here could open the door to publicly funded schools treating non-Christian students as second class, implementing policies to harass and penalize LGBTQ kids, and even discriminating against students on the basis of race.
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This isn't the only case in the pipeline that could be used to create a massive loophole in equal protection laws in education. As Aaron Rupar and Lisa Needham at Public Notice explained last week, "the Diocese of Tulsa and the Archdiocese of Oklahoma have joined forces to apply to open a Catholic charter school in the state." This should, by any measure, be straight up illegal, because the First Amendment's non-establishment clause means "tax dollars are not supposed to support religious institutions." But the pro-theocracy bent of the current Supreme Court is such that they may very well ignore the plain text of the constitution in order to argue that yes, the state should be running unapologetically religious schools.
Despite all the rhetoric about "school choice," the long-term plan here is for such schools to completely replace public education. As with many other Republican ideas, like banning abortion or ending Social Security, they know the public isn't on board. So they create these elaborate workarounds, hoping to covertly implement their ideas in a gradual way, so it passes public notice until it's too late to stop them.
One can see the evil genius here at work. The process of shifting government funds out of public schools and into private religious organizations will happen slowly, and most people won't feel too worried about it so long as they believe they have a "choice" to put their kids in a secular institution. So when the plan finally comes to fruition and public schools collapse from defunding, most of the public will be caught flat-footed. The surface debate is over dress codes, but the larger agenda here is deeply radical.
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