Charter school dress code requiring skirts for girls violates equal protection clause, 4th Circuit rules
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An en banc federal appeals court ruled Tuesday that a public charter school in North Carolina violated the equal protection clause when it required girls to wear skirts.
The full 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled against Charter Day School Inc. in a June 14 decision. Judge Barbara Milano Keenan wrote the majority opinion.
The Charter Day School required girls to wear skirts, jumpers or skorts based on the view that girls are “fragile vessels” deserving of gentle treatment by boys, the appeals court said.
The school had argued that the school is not a state actor subject to the Constitution, and that the federal law banning discrimination on the basis of sex in education programs did not apply to dress codes.
The appeals court ruled against the school on both arguments.
The 4th Circuit decision is the first by a federal appeals court to recognize that charter schools receiving public funds must abide by the same constitutional safeguards as traditional public schools, according to a press release by the American Civil Liberties Union.
The en banc court and a prior 4th Circuit panel agreed that sex-specific dress codes may violate Title IX of the Education Amendments of 1972. But the en banc court went further than the panel when it ruled that the charter school violated the equal protection clause.
The Charter Day School educates children in kindergarten through eighth grade in Brunswick County, North Carolina, and receives 95% of its funding from federal, state and local governments. It is designated as “public” under North Carolina law and overseen by a state board, although it is run at the local level by a management company. Any student can enroll.
“The statutory framework of the North Carolina charter school system compels the conclusion that the state has delegated to charter school operators like CDS part of the state’s constitutional duty to provide free, universal elementary and secondary education,” the en banc appeals court said. “The Supreme Court has held that such a delegation of a state’s responsibility renders a private entity a state actor.”
Turning to the merits of the equal protection claim, the appeals court rejected the school’s argument that there is no violation because boys face different requirements that ban long hair and jewelry.
“A state actor’s imposition of gender-based restrictions on one sex is not a defense to that actor’s gender-based discrimination against another sex,” the 4th Circuit said.
The school founder had said skirts embody “traditional values” and preserve “chivalry” and respect. Chivalry, the school founder said, is a code of conduct in which women are “regarded as a fragile vessel that men are supposed to take care of and honor.” School board members agreed with those objectives, including the goal of fostering “traditional roles” for children.
“It is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes,” the appeals court said.
Keenan’s majority opinion was joined by nine judges. Six judges dissented or partly dissented.
The partial dissenters argued that the Charter Day School was not a state actor subject to the equal protection clause. The dissenters agreed with that argument and also said the entire case should be dismissed.
“The majority seeks to expand the concept of state action and the reach of Title IX to a point that will drape a pall of orthodoxy over charter schools and shift educational choice and diversity into reverse,” argued Judge J. Harvie Wilkinson III in his dissent, which was joined by two other judges.
“As this case shows, any challenge to prevailing educational convention is met by circling the wagons,” Wilkinson said.
“Student dress codes in particular are unsettling to those who believe, as plaintiffs do here, that they connote feminine inferiority,” he wrote. “But the view is not universal. … To a great many people, dress codes represent an ideal of chivalry that is not patronizing to women but appreciative and respectful of them.”
The majority responded that some scholars described the age of chivalry “as a time when men could assault their spouses and commit other violent crimes against them with impunity. … So contrary to the second dissent’s view, chivalry may not have been a bed of roses for those forced to lie in it.”
