North Carolina's Charter Day School violated female students' Title IX rights when it required them to wear skirts rather than pants or shorts, according to a 10-6 ruling this week by the 4th Circuit Court of Appeals.
The school’s founder said in court documents that chivalry is “a code of conduct where women are treated, they’re regarded as a fragile vessel that men are supposed to take care of and honor.” The school hoped to “treat [girls] courteously and more gently than boys" by requiring them to wear skirts.
In a concurring opinion, Senior Judge Barbara Milano Keenan said "it is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes." Keenan also wrote the majority opinion, joined by nine other judges.
The court's decision, while not surprising, is one of many that have forced schools' hands to become more flexible in their uniform policies, said Brett Sokolow, president of the Association of Title IX Administrators.
"And I think there have been plenty of lawsuits that have taught public schools out there that you can't put people into certain boxes or categories with respect to what you make them wear — you can only make them wear a uniform," Sokolow said. "So this just extends what has always been applicable in every public school in the country."
What the judges said
Plaintiffs in the case, three students and two of their guardians, argued the skirt requirement hindered their ability to learn. Charter Day School, renamed to Classical Charter Schools of America in 2021 when the court case was still pending, is a K-8 network that serves roughly 2,400 students across four charter schools.
In a separate opinion, Keenan, joined by one other judge, said the school believed "because girls at CDS ‘succeed’ in academic and extracurricular activities, the skirts requirement is harmless in its effect on CDS’ students.
“Left unanswered is the full spectrum of success that female students might have achieved if they had not been subjected to the pernicious stereotypes underlying the skirts requirement,” Keenan said. “It is irrelevant how well these students performed despite carrying the burden of unequal treatment. We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment.”
In a concurring opinion, Judge James Wynn and four colleagues, weighed in on the parents' role, saying the school'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.”
“The premise underlying this argument is that state schools must be allowed to experiment with unconstitutional discrimination to honor ‘consumer’ demand and achieve said 'educational progress,'” Wynn wrote. “That premise is so plainly wrong it borders on the offensive.”
A total of six judges also dissented in two separate opinions.
“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,” wrote Judge Marvin Quattlebaum. “The majority, however, breaks that new ground."
In a separate dissent, three judges said they would have dismissed the case entirely.
Case could apply to other school policies
The case could have implications outside of the 4th Circuit. Galen Sherwin, senior staff attorney at the ACLU's Women's Rights Project who represented the plaintiffs, said this case — one of the most recent interpretations reaffirming the broad scope of Title IX — marks a turning point on sexist dress codes.
Sherwin said this is the first U.S. circuit court to address a rule requiring girls and boys dress differently, and therefore courts around the country will likely view it as authoritative. It holds an even greater weight because it was issued en banc, meaning all the judges heard the case, the ACLU attorney said.
As a result, schools should "look closely at their dress and appearance codes and revise them to make them apply equally to all students," Sherwin said. Although this decision was specific to the skirt requirement, the same reasoning could apply to dress codes with different rules for boys and girls more broadly.
It could challenge provisions addressing things like hair length, jewelry and makeup. Sokolow also said it could apply to dress codes that have a "modesty requirement," like those that don't allow female students' to show their bra straps.
"Schools that are implementing modesty codes have to employ them equitably," Sokolow said. "And that's a very difficult thing to do."
The steep court expenses could also "teach a lesson" to the school and others about using public funds to defend cases like this one, he added.
The plaintiffs and their legal representation are entitled to recoup costs associated with the appeal and attorneys’ fees. Costs related to damages have yet to be determined, but the plaintiffs “sought nominal damages of $1 each in recognition of the dignitary harms of being subjected to discrimination,” said Gillian Branstetter, spokesperson for the ACLU, in an email.
On the federal level, the case is likely to have an influence on the Biden administration's upcoming Title IX regulations, said Sherwin, adding she hopes the Education Department will use the regulations as an opportunity to clarify that the civil rights law prohibits dress codes that treat students differently based on sex.
Implications for LGBTQ students possible
Sokolow and Sherwin both said the case could also carry implications for LGBTQ students.
"Dress codes that incorporate gender-based terms are often enforced disproportionately against LGBTQ students," explained Sherwin. Such terms and enforcement can be particularly harmful to transgender students, nonbinary or gender-nonconforming students.
These students may not feel comfortable complying with dress code provisions not aligned with their gender identity or may not feel comfortable complying with provisions specific to their assigned sex or to either sex.
Sokolow said a student in this scenario would have a strong argument for a successful Title IX case. "I think the end result is that there's a lot of flexibility.”
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