School dress codes mandating skirts for girls may violate Title IX, 4th Circuit rules
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Sex-specific school dress codes may violate federal education law, a federal appeals court has ruled in a challenge to a charter school’s skirts-only dress code for girls.
The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, ruled Monday in a case involving Charter Day School in Leland, North Carolina, which promotes traditional values while serving elementary and middle school students.
The school said its policy was intended to preserve chivalry and promote the proper treatment of girls.
The appeals court ruled that sexually discriminatory dress codes are banned by Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs that receive federal money. The court sent the case back to the federal district court to decide whether Charter Day School’s skirt requirement violates the law.
The appeals court did not reach constitutional arguments, however, ruling 2-1 that the charter school was not a government actor when it enacted the dress code and, as a result, is not subject to an equal protection claim.
Charter Day School’s dress code required girls to wear either skirts, jumpers or skorts, which could be paired with leggings for warmth. Boys could wear pants or shorts.
During depositions, girls at the school testified that they could not move as freely and comfortably in their skirts. They had to cross their legs or keep their knees together while sitting, which distracted them from their academic work.
A developmental psychologist who testified for the plaintiffs said research shows that skirt dress codes reinforce “gender roles in which girls are viewed as passive and focused on their appearance instead of agency.”
The school defended its dress code with testimony by Baker Mitchell, who incorporated the nonprofit corporation that holds the charter to the school. Mitchell said the dress code furthered chivalry, which he defined as “a code of conduct where women are … regarded as a fragile vessel that men are supposed to take care of and honor.”
Judge A. Marvin Quattlebaum Jr. wrote the majority opinion. He noted that the Education Department had repealed a regulation dealing with appearance codes but said the determination was not entitled to deference because the text of Title IX is clear.
“The statute broadly prohibits sex-based discrimination in schools that receive federal funding,” Quattlebaum wrote. “That sweeping prohibition is followed by a handful of exceptions. … Dress codes are not listed among those exceptions. … Had Congress intended to exclude dress codes, it obviously knew how to do so.”
Quattlebaum said the district court didn’t consider whether the skirt policy violated Title IX because it had ruled that the federal statute didn’t apply. On remand, he said, the trial court should follow the reasoning in a 2020 4th Circuit ruling for Gavin Grimm, a transgender man who alleged discrimination when his school barred him from using the bathroom that matched his gender identity.
“The question here is whether CDS’s skirt requirement excluded plaintiffs from participation, denied them education benefits or ‘treated [them] worse than similarly situated students,’” Quattlebaum said.
The plaintiffs will have to show on remand that they were worse off because of the requirement, and that they suffered objective harm as a result, Quattlebaum said. And if they can show objective harm, they will have to show that their sex is a but-for cause of the harm.
In North Carolina, charter schools are nominally public schools, but they are operated by private nonprofit organizations, rather than public school boards. Charter schools are exempt from statutes that apply to local school boards, and they are governed by their charter, a contract between the nonprofit and the state. No state law or charter provision requires a dress code.
North Carolina lawmakers made a policy choice to take a hands-off approach to charter schools to allow for experimentation and school choice, the appeals court said.
A dissenter, Judge Barbara Milano Keenan, said she would hold that Charter Day School is a state actor, and the skirts requirement violates the equal protection clause.
Keenan said the majority’s state-action analysis “jumps off the rails” by relying on a 1982 U.S. Supreme Court case that dealt with a private school.
The case is Peltier v. Charter Day School Inc.
The American Civil Liberties Union, the ACLU of North Carolina and the law firm Ellis & Winters filed the initial challenge to the dress code, according to a press release.