Judge Strikes Down Charter School’s Dress Code Requiring Skirts for Girls

By Mark Walsh — March 29, 2019 3 min read
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A federal district judge has ruled that a North Carolina charter school’s dress code requiring that girls must wear skirts and may not wear shorts or pants violates the U.S. Constitution’s equal-protection clause.

“Yes, the boys at the school must conform to a uniform policy as well,” Senior U.S. District Judge Malcolm J. Howard wrote. “But plaintiffs in this case have shown that the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs ... .”

The judge’s March 28 opinion in Peltier v. Charter Day School Inc. is noteworthy in several respects. Howard said most challenges to public school dress codes have been based on First Amendment free expression concerns, not gender discrimination.

“Arguably, the most analogous cases are the hair length cases of the Vietnam era,” the judge said, and those were decided long before the U.S. Supreme Court’s 1996 decision in United States v. Virginia, which required the admission of women to the all-male Virginia Military Institute and established that governments defending gender-based policies must show an “exceedingly persuasive justification” for them.

Also, the judge ruled that the organization that holds the charter for the Charter Day School, a K-8 school in Leland, N.C., acted under state authority, or “color of state law,” when it incorporated its disparate dress code into its disciplinary code.

“In this matter, CDS, Inc. has brought the uniform policy under extensive regulation of the state by making violations of the uniform policy a disciplinary violation,” the judge said.

Howard went on to rule that the manager of Charter Day School, an entity known as Roger Bacon Academy Inc., was not a state actor because it does not contract with or received funding directly from the state and had no power to change the dress code, which was set by the CDS board.

CDS is a “traditional values” themed school and the school’s founder, Baker Mitchell, has asserted that the dress code requirement that girls wear skirts was part of a climate of “chivalry” and “mutual respect.”

The policy was challenged in a lawsuit brought by several current and former students, backed by the American Civil Liberties Union. They argued that skirts policy violates the 14th Amendment’s equal-protection clause as well as Title IX of the Education Amendments of 1972 and North Carolina constitutional provisions. (Howard ruled that Title IX does not regulate the dress code at issue in the case.)

The charter board defended the dress code by arguing that it was part of a permissible traditional values approach and that it helped instill discipline and keep order, as well as to promote mutual respect between the sexes.

“They argue that taking away the ‘visual cues’ of the skirts requirement would hinder respect between the two sexes,” the judge said. “However, even assuming these are legitimate goals, defendants have not shown how the skirts requirement actually furthers these stated goals.”

Howard observed that “females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s,” and he cited expert testimony submitted by the plaintiffs that most public school dress codes across the country allowed girls to wear pants or shorts by the mid-1980s.

“It is not the holding of this court that dress, grooming and uniform policies cannot have differences for boys and girls,” the judge said, but “the skirts requirement causes the girls to suffer a burden the boys do not, simply because they are female.”

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A version of this news article first appeared in The School Law Blog.