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.