A common refrain from education advocates is that school choice is “the civil rights issue of our time.” 

In a lecture on Oct. 19, a leading scholar of education and law warned that allowing parents to choose to send their students to charter schools that operate without sufficient oversight will actually threaten the student’s civil rights.

“I’ve heard people make arguments about the real need for school choice,” said Preston Green III, Ed.D. He acknowledged that charter schools—a key element of school choice—can provide needed opportunities for families, but said that local governments must regulate them.

“Certainly, communities of color have said that many of them do support school choice programs, because they feel that it meets a need. If there is that need, then we can meet it, but we cannot then step aside and then say that they cannot be regulated. There have to be protections in place for communities, for students, and for school districts.”

Green, the John and Maria Neag Professor of Urban Education at the University of Connecticut, delivered his remarks as part of the Graduate Schools of Education’s annual Barbara L. Jackson, Ed.D., lecture.

An Expanding Role in Education

He began by acknowledging that charter schools, which are not subject to all the rules and regulations of local education departments, but are funded by taxpayer funds, are not only a fundamental part of the landscape, but are expanding. 

In the United States, there are 7,500 charter schools in 45 states and the District of Columbia, serving 3.4 million students. Although the rules governing the schools vary widely across the country, there are three general areas where many of them fall short, he said. 

They are the loss of civil rights, increased stress to fiscally strapped districts, and predatory contracts.

When it comes to civil rights, Green said, marginalized groups should remember one thing: “They can’t keep you out, and they can’t drum you out,” he said.

Families should know, he said, that they are protected by federal statutes that all schools, be they public, charter, or private, must follow. They include Title VI, which prohibits discrimination against a person based on their race, ethnicity, of national origin; Title IX, which protects against discrimination based on sexual orientation and gender identity; the Equal Educational Opportunities Act, which protects English Language Learners; and the Individuals with Disabilities Act and Section 504, with both protect students with disabilities.

A Key Protection That Needs Attention

To those, Green added the Equal Protection Clause of the U.S. 14th Amendment, and the Due Process Clause, which provides a student who may be suspended or expelled the right to be alerted to the charges and given an opportunity to plead their case. Although charter schools fulfill the first five, Green said it’s an open question whether they fulfill these last two, as public schools do.

As an example, he cited Peltier v. Charter Day School, an ongoing case in North Carolina that has received split rulings in federal court and may be resolved by the U.S. Supreme Court. The school has a strict dress code that says girls must wear skirts and boys must wear pants, a provision that Green said would be a clear violation of the equal protection clause because it discriminates on the basis of sex. The school argued that it is not legally a “state actor,” though, and should be exempted from the clause in the same way that private schools are.

This has major implications for Black students, he said, because some schools have policies forbidding Afrocentric hair. The good news is, he said, is that there are 27 states that prohibit charter schools from violating students’ equal protection rights. 

“I would argue that all states need to adopt this type of language to ensure that the civil rights of students are provided for,” he said.

Addressing the Financial Impact of Charters

When it comes to increased stress to fiscally strapped districts, Green made the case that both urban and rural school districts often suffer financially when charter schools are established. In the Chester Upland School District, just outside of Philadelphia, he noted that the district faced a $22 million deficit at the same time that charter schools in the district were being given $40,000 a year for every special education student they admitted.

In Oklahoma, state lawmakers just this past March defeated a bill that would have dedicated $128.5 million to expanding school choice, because they was feared it would have an adverse effect on rural schools. Green applauded this, and suggested taking a page from environmental law, and mandate that districts conduct an “educational impact analysis” report before allowing charters to open. 

California, Kentucky and Missouri have provisions like this in place for urban school districts, and Louisiana has one for rural areas, he noted.

“For districts with fewer than 5,000 students, the Louisiana State Department of Education actually engages in an assessment with the school district to determine whether or not a charter school should open in that rural community,” he said.

Finally he cited predatory contracts, which can often surface when charter schools are not properly regulated. In New Jersey, he said, a 2019 investigation found that some operators treated their buildings like investment vehicles instead education spaces, and non-profit educational entities often worked in tandem with for-profit partners. 

Idaho, Kentucky, Ohio, Rhode Island in Texas already have laws that stipulate that real estate purchased with charter school funds belong to the state; Green suggested that in addition to that, a model statute for contracts and purchases should also include a rule that leases and related party transactions must be conducted at fair market value.

“We’re having a debate right now where we’re asking, ‘Should we go forward with charter schools or should we go forward with private school choice programs?’ I’m going to say that right now, I think that train has left the station,” he said. 

“But if we’re going to go forward with this, we need to provide protections. This is my attempt really to begin to put the meat on the bones as to how we can actually do that.”


Patrick Verel is a news producer for Fordham Now. He can be reached at [email protected] or (212) 636-7790.