A federal appeals court on Wednesday banned a North Carolina public charter school from forcing girls to comply with a dress code that compels them to wear skirts.
A panel of 16 judges found that the Constitution’s Equal Protection Clause and a federal law known as Title IX forbid the skirt requirement.
Ten judges said the charter school’s explanations for compelling girls to wear skirts – primarily an effort to promote “traditional values,” according to a brief it filed in the appeals court – “rest on nothing
more than conventional notions about the proper station in society for males and females.”
The charter school’s lawyers argued that the skirt mandate was constitutionally acceptable because boys also had to comply with particular dress code requirements relating to hair length and jewelry wearing and that, in any event, girls are not harmed by the skirt requirement because many female students had excelled in the classroom and in extracurricular activities.
They also asserted that forcing students to comply with the dress code promoted “discipline” and helped to “keep order,” justifications that overrode concerns about any possible discrimination against girls that it perpetuated.
The majority of the en banc court rejected those arguments.
Judge Barbara Milano Keenan explained that the skirt mandate was effectively an attempt to advance “sex-based stereotypes” that had “the express purpose of telegraphing to children that girls are fragile, require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls.”
As such, Keenan wrote, the dress code requirement could not survive the “intermediate scrutiny” compelled by the Equal Protection Clause of the Constitution, which requires discriminatory action by government to be justified by “exceedingly persuasive justification.”
The ruling disagreed with an earlier decision by the 7th U.S. Circuit Court of Appeals. That court said in 2014 that a dress code that imposes different requirements on male and female students might be consistent with the Equal Protection Clause if the burdens on individuals of both sexes are equal.
Keenan said that argument was also untenable. “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 Virginia-based jurist wrote.
Keenan’s majority opinion also declared that charter school dress codes must comply with Title IX. Congress, the majority said, did not exempt “dress, appearance, and grooming policies” from the reach of the statute.
“If Congress had intended to exclude sex-based dress codes from the broad reach of Title IX,
Congress would have designated such policies along with the other enumerated exceptions,” Keenan wrote.
For the skirt requirement to be consistent with Title IX, the court said, no female student can be “excluded from participation in an education program or activity, denied the benefits of this education, or otherwise subjected to discrimination because of their sex” and no female student can suffer harm, including “emotional and dignitary harm,” as a result of its enforcement.
Keenan’s opinion made clear that, as with the Equal Protection Clause, the skirt policy cannot be found compatible with Title IX on grounds that boys also must follow a dress code.
“Discriminating against members of both sexes does not eliminate liability, but doubles it,” she wrote.
Six judges on the Richmond-based court dissented.
Judge A. Marvin Quattlebaum, Jr. of Greenville, S.C. expressed skepticism that the charter school, even though it receives taxpayer money, is a “state actor” subject to the Equal Protection Clause’s limitations.
He argued that, because the charter school is operated by a private, non-profit corporation, it cannot be bound by the Constitution in the same way that a state or local government is.
Quattlebaum pointed to decisions by three other federal circuit courts of appeal that found the receipt of state money is not enough to convert a school into a state actor. “Instead, they are governed by their charter, or contract, between the nonprofit corporation and the state,” Quattlebaum wrote.
One of the three cases from other circuits cited by Quattlebaum involved a public charter school.
The Donald Trump-appointed judge also asserted that Supreme Court precedent demands that the state itself compel the imposition of the dress code and that the charter school contract did not include such a demand.
His dissent was joined, in whole or in part, by five other judges on the court.
Judge J. Harvie Wilkinson III, who was appointed to the court by President Ronald Reagan in 1984, also dissented. He argued that the “chivalry” rationale advanced by the charter school operator was persuasive.
“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 wrote. “Chivalry harkens to the age of knighthood, defined as the brave, honorable, and courteous character attributed to the ideal knight. What the knights bestowed upon their ladies fair at the end of a tournament has become the bouquet of roses extended on stage at the close of an opera.”
Wilkinson acknowledged the value of equal opportunities for women, but said that classifications based on sex can be compatible with the growing presence of women in a variety of professions.
“The advent of new possibilities need not extinguish more traditional gender roles which lend stability to home and family and ultimately to society itself,” he wrote. “Indeed, many women embrace and
balance both modern and traditional elements in their lives, to the benefit of the worlds of both work and family life.”
The majority opinion summarily rejected any reliance on chivalry as support for the dress code. “Some scholars…paint a far grimmer picture of that age, describing it as a time when men could assault their spouses and commit other violent crimes against them with impunity,” Keenan wrote. “So, contrary to the second dissent’s view, chivalry may not have been a bed of roses for those forced to lie in it.”
The case is Peltier v. Charter Day School, Inc., No. 20-1001.
Author
About Author
