The Skirts Requirement: Dress Code Gender Discrimination in Charter Schools

By Megan E. Coleman

On June 14, 2022, the Fourth Circuit published Bonnie Peltier v. Charter Day School, Inc., a 10-to-6 en banc opinion authored by Senior Judge Keenan. When a North Carolina charter school imposed a dress code requiring that girls wear skirts to school, the full court signed on to tackle two issues related to gender equality in the schools. First, are charter schools “state actors” that must provide equal protection to its students under the constitution? Second, are dress codes categorically exempt from Title IX’s prohibition against gender discrimination?

On its face, the questions seem innocuous. But under the surface, this 103-page slip opinion quickly unveils a raucous caucus of diverging views on gender stereotypes, debating whether the dress code exemplifies chivalry or just mere chauvinism.

But the real question is this: did the judges impart their will, rather than uphold the law? Both sides accuse the other of applying legal principles to circumstances never before applied. The opinions are packed with the judges’ personal viewpoints on the skirts requirement.

Ultimately, the majority held that charter schools in North Carolina are “state actors” subject to the constitutional requirement of ensuring equal protection and further, that the skirts requirement at this school violated the Equal Protection Clause. As to the second issue, the majority held that dress codes are not categorically exempt from Title IX’s prohibition against gender discrimination, so the Fourth Circuit remanded the case to the district court to hold an evidentiary hearing as to whether the charter school’s dress code violates Title IX.

The Background

The mother of a female kindergarten student objected to the skirts requirement at Charter Day School (CDS). CDS explained to her that the school emphasizes “traditional values” and enforces “a code of conduct where women are treated” as if they are “a fragile vessel that men are supposed to take care of an honor.” CDS elaborated that the school tries to “preserve chivalry and respect among young women and men in this school of choice[.]”

The girl’s parents, and others, brought an action against CDS arguing that sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects the girls to discrimination and denial of full benefits of their education in violation of Title IX.

The district court concluded that CDS was a “state actor” for purposes of the Equal Protection claim and ruled that the skirts requirement violates the Equal Protection Clause, thereby granting summary judgment to the plaintiffs on this claim against CDS. With respect to the Title IX claim, the district court ruled that dress codes categorically are exempt from Title IX’s prohibition against gender discrimination, thus granting summary judgment to CDS on the Title IX claim.

On appeal, a panel of the Fourth Circuit reversed the district court’s judgment on both the Equal Protection and the Title IX claims. That decision was vacated by a vote of the full Court, and was considered in the current appeal en banc.

The Majority Opinion

The majority found that as a matter of state law, charter schools in North Carolina are public institutions. The majority wrote that the state action inquiry is not complicated: (1) North Carolina is required under its constitution to provide free, universal elementary and secondary schooling to the state residents; (2) North Carolina has fulfilled this duty in part by creating and funding the public charter school system; and (3) North Carolina has exercised its sovereign prerogative to treat these state-created and state-funded schools as public institutions that perform the traditionally exclusive government function of operating the state’s public schools.

The Court explained how it approaches sex-based classifications with skepticism because of the dangers enmeshed in such arbitrary sorting of people. The Court rejected CDS’ argument that the skirts requirement satisfies intermediate scrutiny and the court also rejected the “comparable burdens” test for sex-specific dress codes because a state actor’s imposition of gender-based restriction on one sex is not a defense to that actor’s gender-based discrimination against another sex.

With respect to the Title IX claim, the majority concluded that Title IX unambiguously applies to sex-based dress codes because “[n]o person…shall, on the basis of sex…be subjected to discrimination under any education program or activity receiving Federal financial assistance.” There are a number of exceptions listed to that clause, but dress, appearance, and grooming policies are not included among the listed exceptions to Title IX. The majority viewed Congress’ decision to include specific exceptions in Title IX as a deliberate choice to “limit[] the statute to the [exceptions] set forth.”

The majority opinion struck hard blows at “the second dissent” written by Judge Wilkinson, describing it as “a non-sequitur that is both baffling and disturbing” in which “the second dissent never explains its position, likely because it cannot.” The majority continued that “while purportedly addressing the state actor issue, the second dissent launches an attack on the merits of the case by lamenting the demise of chivalry in our society.” However, 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.” “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 majority stressed that it “is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes.” Here, “the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina’s young residents.”

The First Concurrence

This concurrence, written by Judge Wynn, wholeheartedly agreed that Charter Day School is a state actor for the purpose of the Fourteenth Amendment. But that is not why the opinion was penned. Rather, the concurrence specifically addressed Judge Wilkinson’s dissent: “[I]nstead of offering concrete legal or factual arguments, the second dissent time travels back to the Middle Ages, dons knightly armor, and throws down the challenge gauntlet, presenting two broad policy arguments for why finding state action here is a bad idea.”

“[T]he second dissent predicts a parade of horribles will follow in the wake of the majority’s decision, including ‘collateral damage’ to institutions like historically Black colleges and universities (HBCUs).” To this point, the concurring opinion assumes that the second dissent means that HBCUs are engaging in unconstitutional racial discrimination and cautions that singling out this group “as likely constitutional miscreants is ill-informed.”

The concurrence describes the second dissent as asking that state schools be allowed to experiment with unconstitutional discrimination to honor consumer demand; a premise that the concurrence says is “so plainly wrong it borders on the offensive.” The concurrence continues that “in the second dissent’s…inverted world, the Constitution is not the primary safeguard of civil liberties but an inconvenient wellspring of frivolous lawsuits[.]”

The concurrence gives a one-star rating to the second dissent’s “surf-or-turf” menu argument that the consumer has the option of ordering what it wants. To the concurrence, the comparison of the decision to attend a traditional public school or order “a discriminatory charter school…leaves a bad taste in the mouth. Subjecting girls to gender discrimination that causes lasting psychological damage is not the same thing as ordering fish.”

The Second Concurrence

This opinion, written by Judge Keenan (who authored the majority opinion) comments on the second dissent’s viewpoint that because girls at CDS “succeed” in academic and extracurricular activities, the skirts requirement is harmless in its effect on CDS’ students. Judge Keenan wrote “to emphasize [her] 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. 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 Keenan finds the record to be clear: “by reducing girls to outdated caricatures of the ‘fairer’ sex, the gender stereotypes animating the skirts requirement negatively impact female students throughout their educational experience.” CDS’ stereotyped rationale for the skirts requirement – that girls are “fragile” and require protection by boys – is both “offensive and archaic.”

Judge Keenan concluded that “[i]n 2022, there is no conceivable basis for allowing such obstacles to girls’ progress in our public schools.”

The First Dissent

This dissent, authored by Judge Quattlebaum, took the only pragmatic approach of the bunch, distancing itself from a discussion of the social issues, and focusing strictly on the legal analysis. It began quite judiciously: “The question is not whether we like or don’t like CDS’ requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question – is CDS a state actor? It’s a question of our legal judgment, not our will.”

This dissenting opinion discussed that prior to the majority’s holding, neither the Supreme Court, nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under 42 U.S.C. § 1983. In its view, the majority “breaks that new ground” in deciding that a private operator of a North Carolina charter school is a state actor and significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of a § 1983 claim. As a result of the majority’s opinion, the dissent quips that “it is hard to discern, much less define, the limits of what constitutes ‘state action.’”

The dissent finds guidance in similar Supreme Court cases and persuasive authority from every sister circuit that has addressed this issue. These cases necessitate a finding that CDS is not a state actor. The dissent agrees with the majority that the Supreme Court precedent lacks a neat analytical structure to answer this question, but urges that the Supreme Court has provided clear guidance in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), a case providing three important principles for state actor analysis.

According to the dissent, the majority opinion now holds that all North Carolina charter schools are state actors, a decision that will likely reach beyond North Carolina and have ramifications far beyond any dress code requirement.

The Second Dissent

The second dissent agreed with all of the points made by the first dissent on the state action question. However, Judge Wilkinson wrote separately to explain why the case should be remanded with direction to dismiss.

Judge Wilkinson criticized the majority for expanding 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.” Observing that charter schools exist in 45 states and the District of Columbia, Judge Wilkinson expressed concern about the vast impact that the majority’s holding will have on charter schools.

Judge Wilkinson stands up for those who believe that “dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them.” “Chivalry,” he writes, “harkens to the age of knighthood,” defined as “[t]he brave, honourable, and courteous character attributed to the ideal knight.” Judge Wilkinson accused the majority of portraying “the age of chivalry as a brutal time” and suggests that adding chivalry into the educational mix it could be no worse than the current times which are rampant with assaults on women.

Judge Wilkinson shames the majority for not respecting CDS’ traditional perspective, even though the judges personally might disagree with it: “So what if certain charter schools or private schools reside at the more traditional side of the spectrum? I’m okay; you’re okay.”

The second dissent finds irony in the majority mandating uniformity by striking down CDS’ uniform mandate, and asks what will come next: Will litigants seek to eradicate North Carolina’s single-sex charter schools? Will some charter schools’ recruiting and admissions decisions, undertaken in pursuit of serving underserved and dispossessed populations, be challenged on Equal Protection grounds? Judge Wilkinson seeks to prevent “the inevitable momentum toward federal hegemony[.]”

Judge Wilkinson would hold that Title IX does not regulate dress codes because Title IX says nothing about it. Moreover, 40 years ago, the Department of Education withdrew a regulation which prohibited discrimination “in the application of codes of personal appearance,” finding “no indication in the legislative history of Title IX that Congress intended to authorize Federal regulations in the area of appearance codes.”

Where We Go From Here

So there’s the long and the short of the skirts requirement case. The majority’s holdings are ones that will surely impact other states in the Fourth Circuit, including Maryland, which has approximately 50 charter schools. This case is likely to make its way up to the Supreme Court because Supreme Court precedent lacks an ideal framework for deciding whether a charter school is a state actor. The Fourth Circuit’s holding appears to be in conflict with other federal circuits that have decided this, and similar issues. For instance, the Fourth Circuit rejected the “comparable burdens” test for sex-specific dress codes, a test endorsed by other circuits for similar cases. Similarly, the Fourth Circuit found that sex-specific dress codes are not excluded from Title IX’s prohibition against gender-based discrimination, even though numerous cases have suggested that such codes do not violate Title IX.

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