Full appeals court hears challenge to school dress code mandating skirts for girls

RICHMOND, Va. (CN) — The en banc Fourth Circuit was asked Friday to decide if a charter school’s policy requiring female students to wear skirts is constitutional, after a three-judge panel held that it is.

Charter Day School Inc., a charter school in Brunswick County, North Carolina, opened in 1999 and functions much like other charter schools that fall into a unique public-private partnership with states. Designed to allow more freedom and experimentation while also offering choices to parents and students, charter schools are typically not tethered to the same rules that govern traditional public schools. 

A group of girls who attend Charter Day School found one of its policies particularly offensive: the requirement to wear a skirt. They filed a lawsuit in North Carolina federal court in 2016, saying the skirts restrict their movement and don't offer any protection from the cold. Beyond physical constraints, they also argued the policy is unlawful sex discrimination under Title IX of the Education Amendments of 1972 and the U.S. Constitution's equal protection clause because it only applies to female students.

Charter Day School says the policy exists to support “traditional values,” “mutual respect” and “chivalry.” As for the constitutional concerns, the school argues only a state actor can be held to those standards and the unique nature of charter schools means they are not state actors, unbound to rules governing other public schools. 

That argument failed to convince a North Carolina federal judge, who sided with the students in March 2019. Senior U.S. District Judge Malcolm Howard, a Ronald Reagan appointee, found the disciplinary nature of the dress code violates the equal protection clause, but said dress codes are not covered by Title IX, which prohibits discrimination on the basis of sex for all schools receiving federal aid.

A three-member Fourth Circuit panel found otherwise in August, reversing Howard's ruling that the dress code is unconstitutional and sending the Title IX claims back for more scrutiny. 

The students petitioned for the full Richmond-based appeals court court to rehear the case, and in October it agreed to do so. Friday morning’s oral arguments focused on when and how Charter Day School should be regulated. 

“A private contractor that provides publicly funded education services is not a state actor unless the state compels or influences the particular policy that’s being challenged,” said Aaron M. Streett, the Houston-based Baker Botts attorney who represented the school system. 

“What we have is a wholly private corporation with a private board,” he added. “They have the sole authority over the operations of the school and the parents are choosing to send their children to that school.” 

Streett's comments prompted several hypotheticals from judges. 

“What if girls couldn’t cut it? They couldn’t take any advanced math classes,” said U.S. Circuit Judge Barbara Keenan, pushing the school’s nonstate-actor theory to its sex discrimination limits. 

“Why would the state create that kind of, I’m trying not to say monster, but you’re suggesting something that runs roughshod over students' constitutional rights,” the Barack Obama appointee said. 

But Streett pushed back, suggesting the purpose of charter schools existing outside of those normal constitutional bounds is to allow for the innovation attributed to them. 

He said the school's nonstate-actor status "provides leeway for policies that some might deem discriminatory, but that's the spirit of individual liberty."

ACLU attorney Galen Sherwin faced similarly tough questions when she argued on behalf of the students, especially when asked by U.S. Circuit Judge Harvie Wilkinson about the school’s contracted relationship with the state. 

“Contractors can be regulated by state statutes, but we don’t seem to regulate contractors through constitutional doctrines in the concept of state action,” the Reagan appointee said. “There’s other means to regulate.” 

“What you’re going in the direction of, by virtue of the contract, the contractor becomes a state actor,” he prodded. “That’s far-reaching, isn’t it?” 

But Sherwin argued a contractor should not be shielded from constitutional claims when it is involved in a right guaranteed by the state’s constitution.

“They are within the system of free public schools the state is required to provide,” she said. “This is not a typical contractor relationship, the function for which Charter Day School is contracted is free and public education.”

The judges did not signal when they intend to issue a ruling.

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