Charter Schools, EMOs, and Sovereign Immunity.

In the 2019 case Cooper v. Kinston Charter Academy, the North Carolina Court of Appeals announced a bright-line rule allowing all public charter schools to claim, without reservation, the state's sovereign immunity from civil lawsuits. This decision arrived during a time of continued growth for charter schools. Three million American children are educated each year in charter school classrooms, and at least 200 North Carolina public charter schools--each sponsored and managed by a private nonprofit--are in operation as of the 2020- 2021 school year. And yet, the public charter school model remains controversial. Some argue that charter schools exacerbate racial disparities, while others fear the general lack of transparency in the system. Whatever your opinion, charter schools in North Carolina clearly occupy a legal middle ground: statutorily defined as "public schools," they receive state funds on a per-pupil basis while remaining free from requirements facing traditional public schools in areas such as teacher licensure. This Comment argues that the bright-line rule in Kinston improperly extends the state's sovereign immunity. Specifically, schools operated by Educational Management Organizations ("EMOs")--private companies that manage charter schools for a fee--should not benefit from immunity where the EMO's authority practically precludes the state's authority over a school's day-to-day functions. Instead, this Comment proposes a fact-specific test for charter school immunity centered around the school's function as a state subdivision rather than the school's statutory designation as a "public school." This fact-specific test would prevent misuse of state funds by private bad actors and mirror North Carolina's treatment of immunity claims by other quasi-public entities while allowing most public charter schools to innovate in the classroom without fear of liability. [ABSTRACT FROM AUTHOR]