Parents in Charter Day School (CDS) in Leland, North Carolina object to the school “chivalry” policy that requires girls to wear skirts or “skorts” to school, while only boys can wear shorts or slacks. The Board of Trustees of the public charter school says the dress code emphasizes that girls are “fragile vessels” deserving of “gentle” treatment by boys, who must hold doors open for girls and umbrellas when necessary. Student Bonnie Peltier and her parents, accompanied by several other parents, say the dress code is a sex-based classification grounded in gender stereotypes that (1) violates the Equal Protection Clause of the Fourteenth Amendment, and (2) also violates Title IX, which prohibits discrimination on the basis of sex in federally funded educational institutions.
The parents took CDS to court to eliminate the skirt policy which the female students say makes them feel uncomfortable and “worth less than the boys.” The female students contend that the skirts requirement causes them to “avoid numerous physical activities, including climbing, using the swings, and playing soccer, except for days on which they are permitted to wear their unisex physical education uniforms.”
The female students also testified that the skirts leave them cold in cold weather, and they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor. They are afraid that boys will tease them or look up their skirts.
The Fourth Circuit Court of Appeals recently heard the case en banc and issued a contested majority opinion with several dissenters lauding the reintroduction of “chivalry” into the curriculum of the “traditional” public charter school. Litigation is ongoing.
CDS has four public charter schools in North Carolina, operating under a 1996 state statute that provides for public charter schools accessible to all students and subject to state requirements and supervision. Ninety-five per cent of the schools funding is from public funds. CDS contends that its volunteer Board of Trustees and its management company Roger Bacon Academy, Inc. are private entities and, therefore, they cannot violate the Fourteenth Amendment because bringing a cause of action for a constitutional violation under Section 1983 requires state actors. CDS also contends that the Title IX statute has no specific provision for “dress codes.”
The Eastern District Court awarded summary judgment to the Peltiers on CDS’ claim of being a private entity, reasoning that CDS serves the state function of providing a free, public education, “a function historically and exclusively performed by the state” and that, therefore, CDS is acting as a public entity, with state actors.
The district court, however, refused to rule for the plaintiffs on the Title IX claim. The three-member panel decision of the Fourth Circuit Court of Appeals reversed both decisions of the district court. However, the en banc Fourth Circuit Court affirmed that the skirt policy was a violation of Equal Protection and remanded the case back to district court to reconsider the Title IX issue.
While a majority of parents might simply think that CDS’ “skirts for chivalry” policy is just plain dumb and suggest that the Peltiers could simply send their daughter to another public charter or private school which does not have such a policy, the en banc majority discussed the various reasons parents might want their daughters to attend Charter Day School. For example, the majority stated reasons like the school’s location, intellectual rigor, successful sports teams, excellent music program, carpool availability, connecting with friends, and other reasons. And while some educators and parents may see the need to return to a more traditional school with rules and emphasis on what schools were like fifty years ago, chivalry was not so romantic as many educators visualize.
The en banc majority specifically quoted scholars who noted that chivalry was also a time in history when females had few rights; men could assault their spouses and commit other crimes against them with impunity. Domestic violence went unnoticed. Contrary to the en banc dissenters, “chivalry may not have been a bed of roses for those forced to lie in it.”
On June 14, 2022, the date the en banc decision was announced, the National Alliance for Public Charter Schools issued a press release stating, “Today’s decision crosses state lines – inside and beyond the 4th Circuit. It confirms what charter advocates, charter schools, and, most importantly, charter families around the country know: charter school students are public school students and must be protected under the U.S. Constitution.”
On September 12, 2022, CDS filed a petition for certiorari to the Supreme Court. The Issue, as defined by the Court, is, “Whether a private entity that contracts with the state to operate a charter school engages in state action when it formulates a policy without coercion or encouragement by the government.”
The petition was first circulated for conference on January 6, 2023, but on January 9, the High Court invited the Solicitor General to weigh in with a brief expressing the opinion of the United States. That has not yet appeared.
Bottom Line for Schools
With over 7,500 public charter schools in the United States, according to the latest data (2019/20), and 176 public charter schools in Pennsylvania (165 brick and mortar, 14 cyber-charters), CDS’ petition for certiorari is worth close observation.
School officials with questions about the content of this article should contact their solicitor or an attorney at KingSpry.
