NC Charter School Mandate, “Skirts for Girls as Fragile Vessels,” a No-No.

On June 14, 2022, the US Court of Appeals for the Fourth Circuit, “On Rehearing En Banc” (meaning by the entire full court of judges “when there is a particularly significant issue at stake”), decided that a North Carolina charter school could not require female students to wear skirts even as it allowed male students to wear more functional, less restrictive pants.

The Court ruled that doing so violates the Constitution’s Equal Protection Clause.

Brought by two parents of minor children attending North Carolina’s Charter Day School (CDS) in 2015, the 103-page Peltier case demonstrates the slippery manner in which charter schools present themselves as “public schools” when doing so benefits the organization, yet when being a public organization is not beneficial, the same charter school is willing to argue that it is a private entity and therefore exempt from accountability mechanisms used for oversight of public schools.

Unlike traditional public schools, charter school CDS is operated by a for-profit management organization (CMO), in this case, CMO Roger Bacon Academy (RBA).

The same person, Baker Mitchell, founded the charter school and owns the for-profit CMO operating it. This arrangement allows a for-profit to assume a public front financially convenient (self-serving?) for Mitchell. However, in the case of subjugating female students as “weaker vessels” to male students, in the eyes of the courts, that public front interferes.

Yes, CDS is willing to be public enough to draw 95 percent of its revenue from taxpayer funding yet argue for its private status when it comes to mandating that its female students wear skirts to purposely reinforce gender stereotypes.

Such argument did not hold up to legal scrutiny.

Some background on the case, as taken from the June 14, 2022, Peltier decision:

CDS, a public charter school in Brunswick County, North Carolina, educates male and female students in kindergarten through the eighth grade. The founder of the school, Baker A. Mitchell, Jr., incorporated defendant Charter Day School, Inc. in 1999. The following year, he obtained a charter from the state of North Carolina, pursuant to the North Carolina Charter Schools Act of 1996, N.C. Gen. CDS’ policies are established by the volunteer members of its Board of Trustees (the Board). Mitchell initially served as the Board’s chairman and now serves as its non-voting secretary.

Enrollment at CDS is open to all students who are eligible to attend North Carolina public schools. CDS receives 95% of its funding from federal, state, and local governmental authorities.

After applying for its charter, CDS entered into a “charter school management contract” (the management agreement) with defendant Roger Bacon Academy, Inc. (RBA), a for-profit corporation founded and owned by Mitchell. Under the terms of the management agreement, RBA is responsible for the day-to-day operations of CDS, including hiring school personnel and carrying out the school’s education program. CDS maintains a bank account on which RBA is a signatory and from which RBA receives reimbursements for fees and operational expenses.

Since its inception, CDS, at the direction of Mitchell and the Board, has “emphasize[d] traditional values,” including a “traditional curriculum, traditional manners and traditional respect.” These stated priorities pervade many areas of the school’s practices. For example, CDS teaches a “classical curriculum,” utilizing a “direct instruction” method. Overall, as one Board member explained, CDS operates “more like schools were 50 years ago compared to now.”

As part of this educational philosophy, CDS has implemented a dress code to “instill discipline and keep order” among students. Among other requirements, all students must wear a unisex polo shirt and closed-toe shoes; “[e]xcessive or radical haircuts and colors” are prohibited; and boys are forbidden from wearing jewelry. Female students are required to wear a “skirt,” “jumper,” or “skort.” In contrast, boys must wear shorts or pants. All students are required to comply with the dress code unless they have physical education class, when they wear unisex physical education uniforms, or an exception is made for a field trip or other special event. A student’s failure to comply with the dress code requirements may result in disciplinary action, including notification of the student’s parent, removal from class to comply with the dress code, or expulsion, though no student has been expelled for violating the dress code.

In 2015, plaintiff Bonnie Peltier, the mother of a female kindergarten student at CDS, informed Mitchell that she objected to the skirts requirement. Mitchell responded to Peltier in support of the policy, stating:

“The Trustees, parents, and other community supporters were determined to preserve chivalry and respect among young women and men in this school of choice. For example, young men were to hold the door open for the young ladies and to carry an umbrella, should it be needed. Ma’am and sir were to be the preferred forms of address. There was felt to be a need to restore, and then preserve, traditional regard for peers.”

Mitchell later elaborated 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.” Mitchell further explained that, in implementing the skirts requirement, CDS sought to “treat [girls] courteously and more gently than boys.”

Why not advocate for an attitude of care and honor toward all human beings, period?

Peltier and two other CDS parents and guardians, on behalf of their female children (the plaintiffs), filed suit in the Eastern District of North Carolina against CDS, the members of the Board, and RBA (the defendants), alleging violations of the Equal Protection Clause and Title IX. The plaintiffs alleged that the skirts requirement is a sex-based classification rooted in gender stereotypes that discriminates against them based on their gender. The parties later filed cross-motions for summary judgment.

In support of their summary judgment motion, the plaintiffs submitted evidence of the tangible and intangible harms they suffer based on the skirts requirement. One plaintiff testified that the skirts requirement conveys the school’s view that girls “simply weren’t worth as much as boys,” and that “girls are not in fact equal to boys.” Another plaintiff stated that the skirts requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” with the result that boys “feel empowered” and “in a position of power over girls.”

The plaintiffs also described the impact of the skirts requirement on their ability to participate in school activities. On one occasion, when a first-grade female student wore shorts to school due to a misunderstanding of the dress code, she was removed from class and was required to spend the day in the school’s office. The plaintiffs also explained that they 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 plaintiffs further testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys will tease them or look up their skirts. Both parties presented evidence from expert witnesses regarding the effects that the skirts requirement and gender stereotypes have on female
students.

The district court determined that CDS was a “state actor” and did violate the Equal Protection Clause, but it found in favor of CDS when it came to Title IX. On appeal, a panel of judges reversed the district court decisions, but a vote of the full appeals court to vacate the panel decision and hear the case en banc (as a block, or all judges involved) yielded the 103-page Peltier decision that is the focus of this post.

Of course, I cannot relay all 103 pages of text in this post, so I will leave readers to peruse the full decision at their leisure. What I offer below is an excerpt from the Court’s en banc decision– including 1) parsing out situations when CDS and/or its CMO are “state actors”/”recipients of federal funds”; 2) offering a brief, scholarly take on components of chivalry dangerous and degrading to women, and 3) confronting the school choice position that dissatisfied students can just move on.

From the Peltier decision:

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.

Contrary to our dissenting colleagues’ views, nothing in our holding will stifle innovation in education provided by North Carolina’s public charter schools. Innovative programs in North Carolina’s public schools can and should continue to flourish, but not at the expense of constitutional protections for students.

…

Also, while purportedly addressing the state actor issue, the second dissent launches an attack on the merits of the case by lamenting the demise of chivalry in our society. In fact, the second dissent promotes chivalry during the age of knighthood as a model for CDS. Some scholars, however, paint a far grimmer picture of that age, describing it as a time when men could assault their spouses and commit other violent crimes against them with impunity. … (“[T]he ‘Age of Chivalry’ was a hard time for victims of domestic violence, when physically ‘chastising’ one’s wife was considered an honorable knight’s duty. . . . [T]he chivalrous knight… was entitled to employ physical violence against his wife.”). So, contrary to the second dissent’s view, chivalry may not have been a bed of roses for those forced to lie in it.

But there is much more for concern. The logical consequence of both dissents, and as freely acknowledged by CDS at oral argument in this case, is that innovation without accountability under the Equal Protection Clause could result in an African American student, another minority student, or a female student being excluded from full participation in North Carolina’s charter schools with no recourse other than seeking to have the school’s charter enforced or revoked. And how do a student and her parents go about that process? How many will just give up rather than having to confront the school system and to finance such a challenge?

The response of both dissents apparently is that these students should just move on to a different public school that values constitutional rights more than “innovative” exclusionary measures. That is no answer. Rather, the plain and obvious answer to the problem is to ensure that operators of public charter schools in North Carolina are not insulated from the constitutional accountability borne by the state’s other public schools. Courts may not subjugate the constitutional rights of these public-school children to the facade of school choice.

…

There are several key differences between RBA, a for-profit management company, and CDS, the non-profit charter school operator authorized by the state to run a charter school. North Carolina has not chosen to delegate its constitutional duty to provide free, universal elementary and secondary education to for-profit management companies like RBA. To the contrary, RBA has no direct relationship with the state and is not a party to the charter agreement between CDS and North Carolina. Instead, RBA manages the daily functioning of the school under its management agreement with CDS. In working for CDS, rather than for the state of North Carolina, RBA’s actions are more attenuated from the state than those of CDS, the entity authorized by the state to operate one of its public schools. We therefore conclude that RBA’s actions implementing the skirts requirement are not “fairly attributable” to the state.

…

For many years, the Supreme Court and this Court have applied a heightened level of scrutiny to sex-based classifications like the skirts requirement. … In conducting its analysis, the Court emphasized that parties seeking to defend a state actor’s sex-based classification “must demonstrate an exceedingly persuasive justification for that action.” … This “burden of justification” is a “demanding” one, and “rests entirely on the State.” …

The Court explained that the demanding review of intermediate scrutiny is required because of our nation’s “volumes of history” demonstrating the denial of rights and opportunities to women because of their sex. … Accordingly, to satisfy such heightened scrutiny, a defendant “must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” …

We approach sex-based classifications with skepticism because of the dangers enmeshed in such arbitrary sorting of people. …

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.” … Under long-standing precedent of the Supreme Court and this Circuit, the sex-based stereotypes advanced by CDS utterly fail to supply the “exceedingly persuasive justification” necessary for the skirts requirement to survive constitutional scrutiny. … Thus, in the absence of any important governmental objective supporting CDS’ skirts requirement, we hold that the skirts requirement fails intermediate scrutiny and facially violates the
Equal Protection Clause.

In reaching this conclusion, we observe that nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness. But those values are never advanced by the discriminatory treatment of girls in a public school. Here, the skirts requirement blatantly perpetuates harmful gender stereotypes as part of the public education provided to North Carolina’s young residents. CDS has imposed the skirts requirement with the express purpose of telegraphing to children that girls are “fragile,” require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls. If CDS wishes to continue engaging in this discriminatory practice, CDS must do so as a private school without the
sanction of the state or this Court.

Related to Title IX, here is the Court’s explanation of how CDS and its for-profit CMO, RBA, are both federal-fund recipients. In the end, the Court sent the Title IX decision back to the district court:

Before addressing Title IX’s applicability to sex-based dress codes, we begin with the preliminary question whether RBA is subject to the requirements of the statute. According to RBA, it does not qualify as a recipient of federal funds within the meaning of Title IX, because RBA benefits from such funds only by virtue of its contract with CDS and does not receive funding directly from the federal government. We find no merit in this argument.

…

The Supreme Court has clarified that “[e]ntities that receive federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX.” …

In the present case, it is undisputed that RBA receives 90% of its funding from the four schools operated by CDS, Inc., which in turn receive nearly all their funding from public sources, including the federal government. RBA concedes that CDS uses its federal funding “in part to compensate RBA for services rendered under” the management agreement between CDS and RBA. Under these facts and circumstances, we easily conclude that RBA receives financial assistance “through an intermediary.” … We therefore hold that RBA, as a recipient of federal funds through anintermediary, is subject to the requirements of Title IX.

…

Certain sex-based provisions of CDS’ dress code may well violate the rights of both male and female students. However, the question that the district court must answer is not whether girls are treated less favorably than boys under the terms of the dress code. … Instead, the court must determine whether the skirts requirement, the only challenged provision in this case, operates to exclude the
plaintiffs from participation in their education, to deny them its benefits, or otherwise to discriminate against them based on their sex. … For purposes of a claim of discrimination under Title IX, the plaintiffs are treated “worse” than similarly situated male students if the plaintiffs are harmed by the requirement that only girls must wear skirts, when boys may wear shorts or pants. Because the district court has not considered this question, we remand the Title IX claim for the district court to
evaluate the merits of that claim in the first instance.

In short:

In sum, we hold that CDS, a public school under North Carolina law, is a state actor for purposes of Section 1983 and the Equal Protection Clause. By implementing the skirts requirement based on blatant gender stereotypes about the “proper place” for girls and women in society, CDS has acted in clear violation of the Equal Protection Clause. We further hold that sex-based dress codes like the skirts requirement, when imposed by covered entities, are subject to review under the anti discrimination provisions of Title IX.

CDS cannot mandate skirts for girls.

This is as it should be.

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