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Cardozo Law Review

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public education, charter schools, private incentives, Title VII


Education Law | Law


Publicly funded, independently operated charter schools entered the public sector three decades ago with the promise of innovating public education to better serve students in underperforming schools. Despite limited evidence of improved educational outcomes, charter schools are now an established part of the education system, with around 7,800 charter schools serving more than seven percent of public, school students.

Although charter schools have long been associated with the controversial school choice movement, a recent entrant into the charter school arena has created new and urgent concerns. Hillsdale College, through its affiliate Barney Charter School Initiative, has been making escalating inroads into public education, capped most recently by an invitation by the Tennessee governor to establish fifty to one hundred new charter schools in the state (an increase of more than forty percent). Hillsdale is a conservative Christian college that declines federal and state funding, leaving it free from laws that prohibit discrimination by recipients of public funding. Its supporters and donors openly express that their mission is to destroy traditional public schools, and replace them with publicly funded charter schools and vouchers to be used at private schools.

Federal and state laws and policies implemented in support of charter school expansion over the three decades of charter school history provide little protection against unchecked expansion of the Hillsdale agenda. This leaves our country in the position of publicly fundinga political mission to overturn the public education system. Although charter schools are subject to the same laws governing all public schools, there is little oversight and substantial evidence of violations ranging from discrimination against students in protected classes to outright fraud. Existing recommendations to limit the number of charter schools or to hold charter schools accountable are inadequate or infeasible. Our proposal is to activate private incentives to litigate as a means of holding charter schools accountable to serving the public interest. We identify three areas in which litigation may provide an enforcement incentive for compliance with federal laws: employment discrimination liability under Title VII, liability of boards of directors of charter schools, and liability of third-party affiliates of charter schools.

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