Posted on August 26, 2022
Important Takeaways: The 4th Circuit Court of Appeals sitting en banc (with all justices) held that a public charter school was acting as a state actor when implementing a dress code requiring female students to wear skirts. Since the school’s justification for the dress code was based on female and male stereotypes, it did not pass intermediate scrutiny and violated the Equal Protection Clause. The court also held that the dress code was not excluded from Title IX and remanded that issue back to the lower courts to be heard.
Facts: Some parents argued that a public charter school, Charter Day School (CDS) in North Carolina was violating both the Equal Protection Clause of the Fourteenth Amendment and Title IX by requiring female students to wear skirts. CDS administrators claimed the skirt requirement was because girls are “fragile vessels” deserving of “gentle” treatment by boys. The parents argued that this was a sex-based classification and subjected female students to discrimination and denial of full educational benefits. CDS argued they were not liable under the Equal Protection Clause because they were not state actors, and that Title IX does not apply to dress codes.
The district court held in granting summary judgment and the 4th Circuit Court of Appeals agreed that CDS is a state actor for the purpose of Equal Protection. CDS’s purpose of providing free public education is a function historically and exclusively performed by the state and therefore the conduct of CDS is attributable to the state of North Carolina. Since the court determined CDS was acting as a state actor when implementing the dress code, the Equal Protection claim was analyzed under heightened scrutiny since the skirt requirement was a sex-based classification. This means CDS had to have a governmental interest to justify the skirt requirement. The court found that the skirt requirement was not supported by any important governmental objective and therefore did not pass heightened scrutiny. The requirement was based on conventional stereotypes about the proper station in society for males and females since CDS said the justification was that they sought to “treat girls courteously and more gently than boys.”
Plaintiffs argued that the skirt requirement prevented students from participating in some activities like climbing and swinging, therefore denying them their full benefit of education and discriminating against them because of their sex. The Court held that Title IX unambiguously encompasses sex-based dress codes. Title IX includes specific exceptions to the requirements, and since dress codes were not included, they are not an exception. The Court remanded the Title IX issue for an evidentiary hearing.
What this means: Dress codes requiring different uniforms based on gender violate the Equal Protection Clause if the justification for the different uniforms is based on gender stereotypes. These dress codes are also not exempt from and may violate Title IX requirements.
What is the name of the case and where you can read it: Peltier v. Charter Day School, Inc., 4th Circuit Court of Appeals, June 14, 2022. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.