The Volokh Conspiracy

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Charter Schools

Can a State-Funded Charter School Require Female Students to Wear Skirts?

Perhaps the real question is whether such a school is a state actor for purposes of Section 1983. The en banc Fourth Circuit says it is, so that a skirt requirement for girls is unlawful.


A state-funded charter school in North Carolina may not require female students to wear skirts because it counts as a state actor, the en banc U.S. Court of Appeals for the Fourth Circuit concluded today in Peltier v. Charter Day School. The en banc court split 10-6.

Senior Judge Keenan wrote the majority opinion, joined by Chief Judge Gregory and Judges Motz, King, Wynn, Diaz, Thacker, Harris, Heytens, and Senior Judge Floyd. Judge Wynn wrote a concurring opinion, joined by Judges Motz, Thacker, Harris, and Keenan. Keenan also wrote a separate concurring opinion, joined by Judge Thacker. Judge Quattlebaum wrote an opinion dissenting in part and concurring in part, joined by Judges Richardson and Rushing in full, and Judges Wilkinson, Niemeyer, and Agee in part. Judge Wilkinson wrote a dissenting opinion, joined by Judges Niemeyer and Agee.

According to Senior Judge Keenan's majority opinion, the Charter Day School (CDS), a public charter school in North Carolina, "requires female students to wear skirts to school based on the view that girls are 'fragile vessels' deserving of 'gentle' treatment by boys." Plaintiffs challenged this policy as an unlawful sex-based classification. According to the plaintiffs, the policy is based upon harmful gender stereotypes and violates both the Equal Protection Clause of the Fourteenth Amendment and Title IX. In Peltier, the Fourth Circuit affirmed the district court's entry of summary judgment for the plaintiffs on the Equal Protection claim, rejecting the school's claim that it is not a state actor, and vacated the district court's summary judgment for the defendants on the Title IX claim.

Key to the court's holding was the conclusion that CDS is a state actor. Here is Judge Keenan's summary of that portion of the opinion:

Ultimately, the state action inquiry in this case is not complicated: (1) North Carolina is required under its constitution to provide free, universal elementary and secondary schooling to the state's residents; (2) North Carolina has fulfilled this duty in part by creating and funding the public charter school system; and (3) North Carolina has  exercised its sovereign prerogative to treat these state-created and state-funded schools as public institutions that perform the traditionally exclusive government function of operating the state's public schools. Accordingly, the public-school operator at issue here, CDS, implemented the skirts requirement as part of the school's educational mission, exercising the "power possessed by virtue of state law and made possible only because the [school] is clothed with the authority of state law." . . . Under these  circumstances, we will not permit North Carolina to delegate its educational responsibility to a charter school operator that is insulated from the constitutional accountability borne by other North Carolina public schools.

Of note, the court also concluded that the management company that runs CDS is not a state actor.

On the Equal Protection claim, Judge Keenan explained why the court rejected CDS' claim the dress code could satisfy intermediate scrutiny:

we reject CDS' argument that the skirts requirement satisfies intermediate scrutiny because the dress code as a whole is intended to "help to instill discipline and keep order." Instead, we must evaluate whether there is an exceedingly persuasive justification for the sex-based classification being challenged, namely, the skirts requirement. CDS cannot justify the skirts requirement based on the allegedly "comparable burdens" imposed by other portions of the dress code that are applicable only to male students. A state actor's imposition of gender-based restriction on one sex is not a defense to that actor's gender-based discrimination against another sex.

We also observe at the outset that the agreement of some parents to the sex-based classification of the skirts requirement is irrelevant to our Equal Protection analysis. No parent can nullify the constitutional rights of other parents' children.

Applying the demanding lens of intermediate scrutiny, we conclude that the skirts requirement is not supported by any important governmental objective and, thus, falls woefully short of satisfying this constitutional test. CDS does not attempt to disguise the true, and improper, rationale behind its differential treatment of girls, which plainly does not serve an important governmental interest. In his initial response to a parent's objection to the requirement, Baker Mitchell, the founder of CDS, explained that the skirts requirement embodies "traditional values." According to Mitchell, the requirement for girls to wear skirts was part of CDS' effort "to preserve chivalry and respect among young women and men," which also included requiring boys "to hold the door open for the young ladies and to carry an umbrella" to keep rain from falling on the girls. Mitchell later elaborated that chivalry is "a code of conduct where women are . . . regarded as a fragile vessel that men are supposed to take care of and honor." Mitchell explained that in implementing the skirts requirement, CDS sought to "treat [girls] courteously and more gently than boys." CDS' Board members agreed with these stated objectives, including CDS' goal of fostering "traditional roles" for boys and girls.

It is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes. On their face, the justifications proffered by CDS "rest on nothing more than conventional notions about the proper station in society for males and females."

Judge Quattlebaum wrote the primary dissent (technically an opinion concurring in part and dissenting in part). It begins:

The question is not whether we like or don't like Charter Day School's requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question—is Charter Day School a state actor? It's a question of our legal judgment, not our will. See The Federalist No. 78 (Alexander Hamilton) ("The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."). If Charter Day School is not a state actor, 42 U.S.C. § 1983 cannot be used to prevent it from requiring female students to wear skirts, skorts or jumpers as part of its dress code. If it is a state actor, it is subject to a § 1983 claim.

Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under §1983. The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues. The immediate casualty of the majority's decision is a small part of a dress code at a particular charter school. That is the least of my concerns. My worry is that the majority's reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.

But the implications of the majority's decision extend beyond even charter schools. By casting aside guidance from Supreme Court precedent, the majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of a § 1983 claim. Frankly, it is hard to discern, much less define, the limits of what constitutes "state action" after the majority's decision.

Judge Wilkinson also wrote a separate dissent. It begins:

I respectfully dissent. The majority seeks to expand the concept of state action and the reach of Title IX to a point that will drape a pall of orthodoxy over charter schools and shift educational choice and diversity into reverse.

Because I agree with all the points made by Judge Quattlebaum on the state action question, I am pleased to join the dissenting portion of his excellent opinion. For myself, however, I would go further, and have the case remanded with directions to dismiss it.

And Wilkinson's opinion concludes:

Charter schools are proving quite popular, so much so that they are becoming difficult to restrict through legislative means. So the effort seems to be to control them through regulation and litigation, as this case makes plainly manifest.

No doubt the fight against the CDS dress code has only begun. No doubt this dress code will be attacked as retrograde, a threat to progress of all sorts. No doubt there will be sincere differences of opinion as to this. But our nation has prospered when all its citizens could freely exercise their diverse faiths. Perhaps a greater freedom of choice will likewise lessen the tensions that arise when educational establishments seek to bend school systems to their singular ends. I do not know how the political debate over school choice will evolve. I do know, however, that this court should not subject this charter school to the slow strangulation of litigation. I would return this case to the district court with directions that it be dismissed.

The Wynn and Keenan concurrences respond to points raised in the dissenting opinions.

Given the growth of charter schools, this is an issue that I expect will get more attention (and may also make for good law school exam hypotheticals).

A final note: The practice of the U.S. Court of Appeals for the Sixth Circuit makes it a practice to note the starting and ending page numbers of all concurring and dissenting opinions at the start of the published opinion. This is a practice that all circuit courts should follow, as it makes it much easier to find the various opinions.