Law & Courts

In Skirt Case, Appeals Court Says Title IX Bars Dress Codes That Discriminate Based on Sex

By Mark Walsh — August 09, 2021 4 min read
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A federal appeals court on Monday ruled that Title IX prohibits dress codes that discriminate on the basis of sex. The court panel sent a lawsuit challenging a North Carolina charter school’s dress code—which requires girls to wear skirts and bars them from wearing pants or shorts—back to a federal district court for further proceedings under that provision of federal education law.

At the same time, however, the panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 that the group that held the charter and the entity that managed the K-8 Charter Day School in Leland, N.C., were not government “actors” and, thus, the dress code could not be challenged as unconstitutional.

The judge who dissented on that point said it was clear that girls at a public charter school were subject to a discriminatory dress code that the charter school’s founder has asserted is based on “chivalry” and “mutual respect.”

“The skirts requirement blatantly serves to perpetuate harmful gender stereotypes as part of the public education provided to our country’s young citizens,” Judge Barbara Milano Keenan said in her separate opinion. “CDS has imposed the skirts requirement with the express purpose of telegraphing to young children that girls are ‘fragile,’ require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls.”

The appeals court essentially flipped legal theories on how the plaintiffs—several families backed by the American Civil Liberties Union—might prevail in their challenge to the dress code. The challengers contend that the skirt requirement at the “traditional values"-themed school restricts their movement, distracts their learning, and sends a message that girls are lesser than boys.

A federal district judge ruled in 2019 that the charter holder operated under state authority when it incorporated its disparate dress code into its disciplinary rules, and thus held that the dress code violated the 14th Amendment’s equal-protection clause. But the judge held that Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded schools and educational programs, does not encompass dress codes.

The 4th Circuit court, in its Aug. 9 decision in Peltier v. Charter Day School Inc., rejected the equal-protection theory but decided unanimously that Title IX does prohibit dress codes that discriminate on the basis of sex.

First, the court held that both the charter holder, Charter Day School Inc., and the manager, Roger Bacon Academy Inc., are direct and indirect recipients, respectively, of federal funding and are thus subject to Title IX.

The court rejected the defendants’ assertion that dress codes are not an area covered by Title IX because the U.S. Department of Education had adopted, in 1975, a regulation governing “appearance codes” under the statute but rescinded that regulation in 1982.

The appeals court said the rescission of the appearance code regulation left a blank slate on whether the statute governed school dress codes.

“The text of Title IX is clear,” the appeals court said. “The statute broadly prohibits sex-based discrimination in schools that receive federal funding. That sweeping prohibition is followed by a handful of exceptions. Dress codes are not listed among those exceptions.”

Thus, there was no ambiguity on which the court must defer to any Education Department interpretation, the panel said. (And the department has investigated complaints regarding sex-based appearance codes since the 1982 rescission of its 1975 “appearance code” regulation, the court noted.)

Because the district court had categorically rejected the challengers’ Title IX theory, the 4th Circuit sent the case back for the judge to consider the evidence in greater detail on whether the charter school’s dress code “subjects girls to discrimination, excludes them from participating in educational activities, or deprives them of equal educational opportunity” under Title IX.

The 4th Circuit panel majority, meanwhile, rejected the equal-protection claim because it said the charter school’s skirt requirement “was not fairly attributable to the state.”

Keenan said she would hold that would hold that “the actions of Charter Day School, a public school created under North Carolina law and funded almost entirely by governmental sources, are actions of the state.” And the school’s enforcement of the skirts requirement, “with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of equal protection under the law.”

“No, this is not 1821 or 1921. It’s 2021,” Keenan said. “Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country’s Supreme Court, in Congress, and, today, a woman is vice president of the United States. Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys.”

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