The Supreme Court, in a sign that it might take a look at charter schools, has asked the Biden administration for a brief on a pending petition from North Carolina over the question of what such a school can do about a dress code.

The brief request is a positive development in the school’s petition to be heard at the high court. Charter Day School at Leland, North Carolina, imposes a dress code requiring female students to wear skirts.

The school was initially sued in 2016 by a group of parents, who alleged that its dress code, which delineates separate uniforms for male and female students, violated the Constitution and federal civil rights law. A federal court in North Carolina’s eastern district ruled that the school had violated the 14th Amendment’s equal protection clause.

Riders of the Fourth Circuit reached a similar conclusion in request of requiring girls to wear skirts. The merits of the dress code aside, though, the case represents a larger question: whether charter schools are “state actors.”

Charter schools are tuition-free public schools, operated and maintained by private bodies. These schools educate more than three million students, who voluntarily attend in 45 states across the country.

Charter Day School has argued that because it is not a state actor, it cannot be subject to civil rights suits under what’s known as Section 1983. The statute gives individuals the right to sue government entities and actors for denial of federal constitutional and civil rights. 

The court is likely to hear the case in part because of a “circuit split” on the issue. Federal appellate courts have come to different conclusions on this head. Such a circumstance is one of the things that can lead to a hearing by the Supreme Court itself. 

In this case, the Fourth Circuit ruled that Charter Day School was a state actor. In a previous case, involving due process in an employment matter, the Ninth Circuit ruled that a charter school in Arizona was not a state actor.

If the Supreme Court hears the case, the Nine would not be ruling on whether uniforms are discriminatory but rather on whether the school — and perhaps charter schools more broadly — is a government entity. The question could have broad implications for the autonomy of charter schools across the country, as well as for the possibility of religious charter schools.

The Sun reported last month that the attorney general of Oklahoma has greenlit the establishment of religious charters in the state, and the Archdiocese of Oklahoma City intends to apply to become the first sectarian charter school in the country. 

If charter schools are universally found to be state actors by the Supreme Court, however, the opinion by the attorney general of the Sooner State could be obsolete.

A professor at Notre Dame Law School, Nicole Stelle Garnett, expects the question at play would likely deal with regulations on charter schools. “The question is, to what extent are they so closely controlled by the government that we would say their actions are the government’s actions?” Ms. Garnett tells the Sun.

“Legally, it’s a very complicated question because it depends on the level of government control,” she reckons, highlighting that different states have varying degrees of charter regulation. “It could be that charter schools, in some states, are government schools and, in other states, aren’t.”

The solicitor general’s brief wouldn’t be the first time the Biden administration has weighed in on charter schools. On the presidential campaign trail, President Biden himself told voters that he was “not a fan of charter schools.” 

Over the summer, the Department of Education tightened application guidelines for the federal Charter School Program, which distributes grants to new charter schools across the union. The new rules from the Department of Education, in a move lauded by teachers’ unions, put a premium on school diversity and collaboration between charter schools and traditional charter schools. 

A group of charter schools filed suit against the Department of Education after the announcement of the rules, alleging “hostility towards charter schools” from the administration.