The 4th U.S. Circuit Court of Appeals has rejected a skirts requirement for girls attending a Brunswick County charter school. The 10-6 ruling from the full Appeals Court reverses part of an August 2021 ruling from an appellate panel.
Last summer, a 2-1 panel ruled in the case, Peltier v. Charter Day School Inc., that plaintiffs could not challenge the skirts requirement under the U.S. Constitution’s Equal Protection Clause. Appellate judges did allow the case to proceed under a claim that the disputed requirement violated Title IX in federal law.
Now the majority of the full Richmond-based court, deciding the case en banc, has determined that Charter Day School is a “state actor.” Its dress code fails under an equal protection claim. The court ordered the case returned to the trial level to address the Title IX complaint.
Senior Judge Barbara Milano Keenan, an Obama appointee, dissented from the August 2021 ruling. Now nine of her colleagues have joined Keenan’s majority opinion in the new decision.
“By implementing the skirts requirement based on blatant gender stereotypes about the ‘proper place’ for girls and women in society, CDS has acted in clear violation of the Equal Protection Clause,” Keenan wrote. “We further hold that sex-based dress codes like the skirts requirement, when imposed by covered entities, are subject to review under the anti-discrimination provisions of Title IX.”
Keenan questioned Charter Day School’s justification of the skirts requirement, “based on the view that girls are ‘fragile vessels’ deserving of ‘gentle’ treatment by boys.”
In a separate opinion, joined by a single colleague, Keenan took aim at Charter Day School’s arguments in favor of the skirts requirement.
“The defendants would have us believe that the skirts requirement is merely another school regulation largely endorsed by CDS parents,” Keenan wrote. “According to the defendants, because girls at CDS ‘succeed’ in academic and extracurricular activities, the skirts requirement is harmless in its effect on CDS’ students.”
“I write separately to emphasize my strong disagreement with this view, which not only is antediluvian but also answers the wrong question. Left unanswered is the full spectrum of success that female students might have achieved if they had not been subjected to the pernicious stereotypes underlying the skirts requirement,” Keenan added. “It is irrelevant how well these students performed despite carrying the burden of unequal treatment. We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment.”
Judge James Wynn, joined by four colleagues, wrote another concurring opinion. Wynn blasts dissenting justices, whose “argument seems to be that subjecting schools like Charter Day to the demands of the Constitution will frustrate parents’ imaginary prerogative to send their children to free, state-funded public schools practicing unconstitutional discrimination, thereby ‘stifling’ educational progress.”
“The premise underlying this argument is that state schools must be allowed to experiment with unconstitutional discrimination to honor “consumer” demand and achieve said “educational progress,” Wynn wrote. “That premise is so plainly wrong it borders on the offensive.”
The case also produced two dissents. Judge Marvin Quattlebaum, a Trump appointee who had written the August 2021 majority opinion, warned about the potential negative impact of the new majority ruling.
“Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor,” he wrote. “The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues.”
“The immediate casualty of the majority’s decision is a small part of a dress code at a particular charter school,” Quattlebaum added. “That is the least of my concerns. My worry is that the majority’s reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.”
Three judges joined a separate dissent. They would have dismissed the case entirely.
“The majority misses the whole purpose of the development of charter schools,” wrote Judge Harvie Wilkinson, a Reagan appointee. “It has little clue about the problems that led to the formation of the charter school experiment or the function that it serves. Its opinion is all about conformity. It is essentially dismissive of what charter schools might have to contribute, prejudging them as miscreants that must be brought to heel.”
“Student dress codes in particular are unsettling to those who believe, as plaintiffs do here, that they connote feminine inferiority,” he added. “The codes are founded upon ideals of ‘chivalry,’ a word which to the majority suggests male condescension toward women and the need of women for male protection, which in turn robs women of their dignity and independence.”
“But the view is not universal. And the ‘cage’ is one of imprisonment in our own perspective, a reluctance to recognize that across the great span of America, there are views that differ from the judge’s own,” Wilkinson wrote. “To a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them. Far from being a pejorative term, chivalry is symbolic of the tone that CDS wishes to set.”
Wilkinson lamented legal attacks on charter schools. “Charter schools are proving quite popular, so much so that they are becoming difficult to restrict through legislative means,” he wrote. “So the effort seems to be to control them through regulation and litigation, as this case makes plainly manifest.”
“No doubt the fight against the CDS dress code has only begun,” Wilkinson added. “No doubt this dress code will be attacked as retrograde, a threat to progress of all sorts. No doubt there will be sincere differences of opinion as to this. But our nation has prospered when all its citizens could freely exercise their diverse faiths. Perhaps a greater freedom of choice will likewise lessen the tensions that arise when educational establishments seek to bend school systems to their singular ends.”
Three students — ages 5, 10, and 14 — challenged the dress code with legal help from the American Civil Liberties Union. They objected to a dress code that included punishment for female students who wore pants or shorts to school instead of skirts.