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Litigation News

Spring 2023, Vol. 48, No. 3

Breaking “Fragile Vessels” Out of School Dress Codes

William H. Newman


  • Appeals court holds Constitution and Title IX restrict rule that female students wear skirts.
  • In response to a mother of a female kindergartener, the founder wrote that the dress code preserved chivalry where women are regarded as a "fragile vessel."
  • The first issue to be addressed was whether the school was considered a state actor.
Breaking “Fragile Vessels” Out of School Dress Codes
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A charter school’s requirement that female students wear skirts violates the Equal Protection Clause of the U.S. Constitution and Title IX, a federal civil rights law, according to a federal appellate court. The charter school was a state actor and, thus, subject to an Equal Protection Clause claim, the court said. The decision reflected heated debate, including bitter disagreements in concurring and dissenting opinions, and an en banc reversal of a panel decision. While the U.S. Supreme Court is considering whether to hear the appeal, ABA Litigation Section leaders believe this decision correctly applies the laws governing charter schools and prohibiting discrimination.

“A Fragile Vessel”

In Peltier v. Charter Day School, the mother of a female kindergarten student objected to a charter school’s requirement that female students wear skirts. The school’s founder wrote the mother a letter defending the dress code, telling her that it preserved chivalry, a code of conduct where women are “regarded as a fragile vessel that men are supposed to take care of and honor.”

On the students’ behalf, three parents and guardians of students sued the school, the school’s board of directors, and the school’s management company alleging violations of the Equal Protection Clause and Title IX. They claimed the skirts requirement was “a sex-based classification rooted in gender stereotypes that discriminates against them based on their gender.”

The parties filed cross-motions for summary judgment. The U.S. District Court for the Eastern District of North Carolina granted summary judgment to the plaintiffs on their Equal Protection claim against the school. It granted summary judgment to the defendants on the plaintiffs’ Title IX claim. Both parties appealed to the U.S. Court of Appeals for the Fourth Circuit.

Charter School Is a State Actor

The Fourth Circuit first addressed whether the charter school was a state actor. The Equal Protection Clause only prohibits discriminatory conduct by state actors, so the charter school would be immune from its restrictions if the court considered it a solely private institution.

In an earlier decision, the Fourth Circuit had held the charter school was not a state actor. It considered whether the charter school performed a “public function traditionally reserved exclusively to the state.” It cited the U.S. Supreme Court case Rendell-Baker v. Kohn, which held that a private school that received public funding was not a state actor.

Following that precedent, the Fourth Circuit panel held that the charter school provided an alternative to the “traditional state school system” and that this function did not belong “exclusively” to the state. It also distinguished the Supreme Court’s decision in Blum v. Yaretsky, which held a state action could arise from the government’s “coercive power” or “significant encouragement.” Here, the court reasoned, the government did not require or even encourage the dress code, so the school was not acting as the state when imposing it.

The Fourth Circuit heard the case again en banc, and in its new majority opinion, it held the charter school was a state actor. It noted that a state statute designated the charter school as a “public school” and that term is inconsistent with a private entity. It also held that the school was performing an “exclusively” government function by carrying out the state’s “constitutional duty to provide free, universal elementary and secondary education.” It disagreed with the earlier opinion’s characterization of the school’s role as merely providing an “alternative” education, because the state constitution required the school to provide a “universal” education, open to all and, thus, subject to the same constitutional requirements as state-run schools.

The court came to a different conclusion, however, concerning the management company that operated the school. It decided that the management company was exempt from an Equal Protection Clause claim because it was not a state actor. It reasoned that, because there was no direct contractual relationship between the state and the management company, the relationship between the two was too “attenuated” to confer state actor status upon it.

Dress Code Violates Equal Protection Clause

Having concluded the charter school was a state actor, the court next decided that its dress code violated the Equal Protection Clause. Because the plaintiffs alleged sex discrimination, the court applied an intermediate level of scrutiny and required the school to demonstrate that the dress code addressed an “important governmental interest.”

The school offered two principal arguments in defense of its dress code. First, it argued the code did not violate the Equal Protection Clause because it subjected male and female students to comparable burdens since dress codes applied to both groups. The court rejected this argument, while noting its apparent acceptance in Seventh and Ninth Circuit decisions. It held that any sex-based classification requires an “exceedingly persuasive justification,” and a comparable burden on males does not justify a rule that applies to females.

The school next argued that the code promoted “traditional values,” including the premise that a woman is “regarded as a fragile vessel” in need of male protection. The court held that this rationale merely perpetuated gendered stereotypes about the roles of males and females and, thus, failed to address an important interest.

Dress Code Also Violates Title IX

The Fourth Circuit reversed the trial court’s decision that Title IX “categorically does not apply to sex-based dress codes.” The trial court had relied on the fact that the U.S. Department of Labor had issued 34 C.F.R. § 106.31(b)(5), a regulation stating that Title IX did prohibit sex-based dress codes, but then later rescinded that regulation. The trial court reasoned that, because the text of Title IX did not expressly prohibit sex-based dress codes, it should defer to the Department of Labor’s interpretation of the statute, which did not consider the codes to violate the statute.

The appellate court refused to defer to the agency’s interpretation of the statute because its plain language prohibited sex-based dress codes. The court observed that the statute contained a “broadly written general prohibition” on discrimination with specific narrow exceptions that did not apply to dress codes.

The appellate court also rejected the argument that Title IX did not apply to the management company. As a general matter, Title IX applies only to recipients of federal funds, and the management company did not receive funding directly from the federal government. But the court cited a regulation that defines “recipients” of federal funds, and that definition includes entities that “indirectly” receive federal funds. The statute thus applied to the management company, which received federal funds from the school that the school had received from the government.

Dissent Prompts Pointed Responses

The en banc decisions included two concurrences and a dissent that reflected a heated debate about the effect of the majority opinion on charter schools. Judge J. Harvie Wilkinson III’s dissent argued that considering a charter school to be a state actor would promote conformity by requiring it to submit to the same values and standards as a public school. He criticized the prevailing educational convention in the United States as suffering from “calcification” and suggested that charter schools pose a different model of schooling. That model, according to the dissent, allows those who hold different values to select a school “at the more traditional side of the spectrum.” The dissent concluded that the purpose of charter schools is therefore to be “freer from state control” and so not considered a state actor.

The concurrence by Judge James Andrew Wynn stated that the dissent’s premise “is so plainly wrong it borders on the offensive.” It summarized the dissent as arguing that unconstitutional discrimination is the “price of innovation and diversity.” It rejected that claim by noting that the U.S. Constitution has not instilled uniformity upon North Carolina’s public schools, which present diverse options to students, such as STEM-focused schools, performing arts schools, and personalized virtual schools. It further disputed that the U.S. Constitution permits “dead zones” where its protections do not apply, noting that the First and Second Amendments do not permit limitations in some places because the rights they protect can be exercised elsewhere.

One major area of disagreement between Judge Wilkinson’s dissent and Judge Wynn’s concurrence concerned historically Black colleges and universities (HBCUs). The dissent argued that court-mandated uniformity in education could endanger alternative learning environments like the ones offered by HBCUs by subjecting them to “massive litigation costs.” In response, Judge Wynn noted that HBCUs do not discriminate based on race and so do not engage in discriminatory conduct that would subject a state actor to a lawsuit. Instead, his concurrence emphasized that those schools are historically Black, but currently admit students of all races. Since the HBCUs do not have a discriminatory policy, the concurrence argued, their historical affiliations were not comparable to a charter school’s dress code.

Judge Wilkinson’s dissent also acknowledged the plaintiffs’ argument that a dress code reflects “male condescension towards women.” But it argued that charter schools should be permitted to express the values of those who do not believe that “traditional gender roles” are harmful. Judge Wilkinson cited the prevalence of sexual assault, harassment, and trafficking for the premise that the status quo fails to protect women and then contended that the charter school’s “chivalric approach” should be a legally available method to improve women’s lives.

Judge Barbara Milano Keenan wrote a separate concurrence to respond to Judge Wilkinson’s argument. Her concurrence disputed that the imposition of “traditional gender roles” is a harmless alternative mode of education that schools should be permitted to offer. It responded to the claim that female students succeeded despite the dress code by noting that female students may have further excelled without the dress code. And it noted expert opinions about the damage the dress code could inflict on female students and evidence that it could make male students “more likely to be the perpetrators of sexual harassment.”

Judge Wilkinson’s dissent responded by suggesting that families that want to avoid the dress code can simply choose another school. But Judge Wynn’s concurrence also disputed that suggestion, noting that some families may choose the charter school for other reasons and still take issue with its discriminatory dress code.

If Applicable, Federal Law Prohibits the Skirts Requirement

Whether a charter school is a state actor and subject to an Equal Protection Clause claim is a “close call,” according to Cassandra Burke Robertson, Cleveland, OH, cochair of the Appellate Litigation Subcommittee of the Litigation Section’s Civil Rights Litigation Committee. “It is hard to know where to draw the line between a private school that gets vouchers and a charter school,” she comments.

The holding in this case, therefore, may not apply to charter schools generally, agrees D. Alicia Hickok, Philadelphia, PA, cochair of the Section’s Amicus Curiae Briefs Committee. “The court was very careful to make the state actor issue a question of state law,” she notes.

“I’m not sure this decision can be extrapolated to other states whose charter schools are not created the same way as this one in North Carolina,” adds Sarah E. Ricks, Camden, NJ, cochair of the Section 1983 Subcommittee of the Section’s Civil Rights Litigation Committee. It is therefore possible that this ruling would still allow other charter schools to escape state actor status, Ricks believes, “but you would need to look at the state law in each specific case to make that determination.”

Once the court decided to apply federal law, however, Section leaders agree that it correctly decided that the skirts requirement was illegal. “The code was based on the outdated stereotypes that girls are less capable than boys,” identifies Ricks. She also notes that the dress code limits the activity of female students “on the playground and in class” by making it more difficult for them to engage in the same behavior as boys without exposing their underwear.

The court’s holding need not proscribe all sex-based distinctions, notes Hickok. While the dress code at issue in this case reflected a “gender bias that is very disturbing,” other proposed dress distinctions may not violate the law so long as they do not “put girls at a disadvantage,” she clarifies.