A federal appeals court has ruled that a North Carolina charter school organized around traditional values and 鈥渃hivalry鈥� violated the 14th Amendment鈥檚 equal-protection clause with its requirement that girls wear skirts.
The court further ruled that public school dress codes that discriminate on the basis of sex fall under the federal Title IX law, and it sent the case back to a trial court for further proceedings on that issue.
The decision by the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., comes in a case that could also prove significant for the legal status of charter schools as public or government actors as well as on the legality of dress codes.
The 101 pages of opinions include lively exchanges among the judges over chivalry and other values of the Middle Ages, the educational innovations and legal status of charter schools, and gender stereotypes in education.
The schools 鈥渟tereotyped rationale for the skirts requirement鈥攖hat girls are 鈥榝ragile鈥� and require protection by boys鈥攊s both offensive and archaic,鈥� wrote Judge Barbara Milano Keenan, in a concurrence joined by another judge.
Writing one of two dissents in the case, Judge J. Harvie Wilkinson III said the majority decision 鈥渨ill drape a pall of orthodoxy over charter schools and shift educational choice and diversity into reverse.鈥�
鈥淭o a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them,鈥� said Wilkinson, whose opinion was joined by two other judges.
The majority said chivalry in the 鈥渁ge of knighthood鈥� was grimmer than Wilkinson suggests, citing historical research suggesting that men could assault their spouses with impunity during that age.
鈥淐hivalry may not have been a bed of roses for those forced to lie in it,鈥� Keenan wrote in the majority opinion in
The sharp opinions come in an important decision on charter schools and gender bias
The long-running case involves a Charter Day School, a K-8 school in Leland, N.C., which teaches a classical curriculum and bars girls from wearing pants or shorts, instead requiring skirts or jumpers.
Some parents challenged the policy under the equal-protection clause and Title IX of the Education Amendments of 1972, which bars discrimination based on sex in federally funded schools.
A federal district judge ruled in 2019 that the charter holder operated under state authority when it incorporated its disparate dress code into its disciplinary rules. The judge held that the dress code violated the 14th Amendment鈥檚 equal-protection clause. But the judge held that Title IX did not apply to dress codes.
A three-judge held that neither the charter school nor the private manager that ran it were state actors and thus the policy could not be challenged on constitutional grounds. But the panel said the district judge was wrong on Title IX and that dress codes did come under the statute.
The full 4th Circuit set aside that panel ruling to review the district court decision anew. In its June 14 ruling, the court held 10-6 that the charter school was a state actor and that the skirt policy violated the equal-protection clause. (That same lineup agreed the private charter manager was not a state actor.)
The majority said the school鈥檚 skirt policy was based on 鈥渋mpermissible gender stereotypes.鈥�
鈥淐DS has imposed the skirts requirement with the express purpose of telegraphing to children that girls are 鈥榝ragile,鈥� require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls,鈥� Keenan wrote for the majority.
The six judges who dissented on that issue argued that the charter school was not a state actor under North Carolina law.
鈥淢y worry is that the majority鈥檚 reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors鈥� and will stifle educational innovation, said Judge A. Marvin Quattlebaum Jr.
The court ruled 13-3 that Title IX encompasses sex discrimination in school dress codes. The majority was not persuaded by the fact that the U.S. Department of Education, in 1982, had rescinded a regulation prohibiting discrimination against any person based on 鈥渞ules of appearance.鈥�
鈥淏ased on the plain language and structure of the statute, we conclude that Title IX unambiguously encompasses sex-based dress codes promulgated by covered entities,鈥� the majority said. (Because the statute was unambiguous, the court said, it was not deferring to the Education Department鈥檚 1982 regulatory change.)
Wilkinson, dissenting on the Title IX issue, noted that the Education Department said in 1982 that appearance codes were an issue 鈥渇or local determination.鈥�
鈥淪urely CDS did not unambiguously give up its right to adopt a traditional sex-specific dress code merely by accepting a dollar of federal funds,鈥� Wilkinson said.
