In ‘skirts only’ school case, 4th Circuit says innovation great, inequality ain’t

(Reuters) – Deep in the thicket of a new en banc decision from 4th US Circuit Court of Appeals on the constitutionality of a charter school’s “skirts-only” dress code for girls, there’s a nuanced legal debate about whether public charter schools can be sued under the Equal Protection Clause of the 14th Amendment.

In a 10-6 decision in Peltier v. Charter Day School Inc, the 4th Circuit majority determined that under North Carolina’s statutory framework for public charter schools, the schools are state actors — and therefore bound by the Equal Protection Clause — when it comes to setting and enforcing educational policies. The judges in the majority found that Charter Day School’s dress code, which requires girls to wear skirts, skorts or dresses, is unconstitutional because it serves no educational purpose but was adopted, according to statements from school officials, to telegraph the message that girls are “fragile vessels” who require boys’ protection, rather than equal treatment.

That message “blatantly perpetuates harmful gender stereotypes … with potentially devastating consequences for young girls,” wrote Judge Barbara Keenan for the majority. “If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the sanction of the state or this court.”

Register now for FREE unlimited access to

But six 4th Circuit judges said it’s not at all clear that the Charter Day School is a state actor. In particular, wrote Judge Marvin Quattlebaum in the court’s primary dissent, there’s a strong argument that North Carolina did not compel Charter Day to adopt its dress code, so the policy cannot be considered a state action. Charter Day School counsel Aaron Streett of Baker Botts echoed the primary dissent in a statement to my Reuters colleague Nate Raymond, arguing that the majority’s ruling on the state action question “contradicts US Supreme Court precedent” and “splits with every other circuit to consider the issue.”

Galen Sherwin of the American Civil Liberties Union, who represents the students whose parents sued over Charter Day’s skirts-only policy, said the other side is overreading the Supreme Court’s ruling in 1982’s Rendell-Baker v. Kohn, which involved hiring decisions at a private school that received public funding. Sherwin also told me that there’s no split among the circuits on the precise circumstances of this case, challenging a gender-specific student policy at a charter school designated to provide a public education.

It’s a good bet that Streett’s client will seek Supreme Court review, so he and Sherwin will have a chance to flesh out their state actor arguments in briefs to the justices.

In the meantime, I want to highlight another debate — more accessible and even more consequential than whether a North Carolina public charter school is a state actor subject to claims under the Equal Protection Clause – that took place within the many pages of the 4th Circuit’s decision .

It’s news to no one that public education in this country is in turmoil, with parents, local school officials, state officials and even national politicians embroiled in fights about what and how schools should be teaching children. As public charter schools have proliferated over the last few decades, schools like North Carolina’s Charter Day have offered parents and kids a variety — a chance to pick a public school that shares their values ​​and priorities.

Both the majority and the dissenters in Tuesday’s ruling from the 4th Circuit devoted a lot of thought to the implications of the court’s decision on Charter Day’s constitutional responsibility for its policies. Does subjecting charter schools to Equal Protection suits endanger these alternative models for public education?

4th Circuit Judges J. Harvie Wilkinson, Paul Niemeyer and Steven Agee said the answer is yes. In a second dissent, written by Wilkinson, the three said they’re concerned that the majority’s ruling will snuff out charter schools’ innovative policies.

“The crucial question is one of student and parental choice,” Wilkinson said. “So what if certain charter schools or private schools reside at the more traditional side of the spectrum? I’m okay; you’re okay. There is room for all in an educational system worth its salt.”

Wilkinson posited that the Charter Day School’s pledge to inculcate “chivalry” in its male students might not be a bad thing, in light of widespread reports of young women experiencing sexual harassment, degradation and abuse. (Keenan tartly responded that scholars have chronicled rampant spousal abuse during the so-called “age of chivalry,” with no consequences for the “chivalrous knights” who assaulted them. “Contrary to the second dissent’s view,” Keenan wrote, “chivalry may not have been a bed of roses for those forced to lie in it.”)

Wilkinson and his fellow dissenters mused darkly that the majority’s constitutional crackdown on Charter Day’s dress code was the beginning of a march “toward federal hegemony” in which public schools offering alternative educational philosophies would be bullied into conformity “through regulation and litigation, as this case makes plain manifest.”

But Judge James Wynn pretty much demolished Wilkinson’s argument in a concurrence joined by Keenan and three other judges in the majority. “The second dissent’s argument seems to be that subjecting schools like Charter Day to the demands of the Constitution will frustrate parents’ imaginary prerogative to send their children to free, state-funded public schools practicing unconstitutional discrimination, thereby ‘stifling educational progress,'” Winn wrote. “That premise is so plainly wrong it borders on the offensive.”

The Constitution, Wynn said, hasn’t hobbled innovation and ingenuity in education. Quite the contrary, Wynn said: Constitutional rights have enabled schools to offer diverse, cutting-edge curricula to students of all backgrounds and abilities.

After all, Keenan wrote in the majority decision, the Equal Protection Clause certainly does not preclude public school instruction in “the universal value of respect and kindness” – precisely the “traditional” values ​​Charter Day says its policies are designed to promote.

Those values, at least in the view of the 4th Circuit majority, are not advanced by unconstitutional discrimination.

“Nothing in our holding will stifle innovation in education,” Keenan said in a rousing summary of the court’s decision. “Innovative programs in North Carolina’s public schools can and should continue to flourish — but not at the expense of constitutional protections for students.”

Hard to argue with that.

Read more:

North Carolina charter school’s skirt requirement for girls unconstitutional, court rules

En banc 4th Circuit will review skirts-only dress code for charter school girls

Register now for FREE unlimited access to

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel

Thomson Reuters

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.


Leave a Reply

Your email address will not be published.