Dress and Skirts

En banc 4th Circuit will review skirts-only dress code for charter school girls

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(Reuters) – The constitutional rights of more than 3 million elementary and secondary students in the U.S. could be at stake when the en banc 4th Circuit decides whether a North Carolina charter school that requires girls to wear skirts or dresses can be sued for violating the Equal Protection Clause.

In August, a divided three-judge panel ruled in Peltier v. Charter Day School, Inc, that girls who attended North Carolina’s Charter Day School did not have a constitutional claim because the school, although chartered by the state to provide free public education, is privately operated and thus not a state actor. (The panel held that the girls — who told poignant stories about being afraid to play on the swings at recess or even crawl on the floor during an emergency drill, for fear of showing their underwear – could bring a gender discrimination claim under Title IX.)

I told you at the time about Judge Barbara Keenan’s blazing-hot dissent, which accused her panel colleagues Marvin Quattlebaum and Allison Rushing of “jumping off the rails.”

Now the panel’s analysis will be scrutinized by the entire 4th Circuit, which, on Tuesday, granted a petition for rehearing from the girls’ lawyers at the American Civil Liberties Union and Ellis & Winters.

The case isn’t just about a single charter school banning pants for girls. The en banc court will reconsider whether the charter school’s operator is a state actor that can be held liable under the Equal Protection Clause. It will be the first federal appellate court, said the ACLU’s Galen Sherwin, to decide whether a charter school tagged under state law with the responsibility of providing a free public education must respect its students’ rights under the U.S. Constitution. Its en banc ruling, she said, will directly affect more than 125,000 students in North Carolina and will likely reverberate across the 4th circuit and even beyond to the millions of kids enrolled in charter schools.

The ACLU and its amicus, the National Alliance for Public Charter Schools, told the 4th Circuit that it’s obvious under North Carolina’s charter school laws that the schools are state actors. The state constitution obliges North Carolina to provide free, universal public education, they said. North Carolina’s statutes, in turn, delegate that state constitutional responsibility to charter schools.

The schools are formally labeled public schools, the briefs said, and are subject to many of the same requirements as non-charter schools, such as performance testing and reporting; open meetings and public records laws; and compliance with desegregation plans.

The ACLU’s best precedent is the U.S. Supreme Court’s 1988 ruling in West v. Atkins, in which the court held that a private doctor under contract to provide medical services to inmates at a North Carolina prison hospital could be sued for unconstitutional race discrimination because the doctor was “clothed with the authority of state law.” The Charter Day School, according to the ACLU, is similarly acting under the state’s delegation of its constitutional responsibility to provide free public education — so, like the doctor in the West case, Charter Day can be sued for discrimination.

The school’s lawyers at Baker Botts countered in their brief opposing en banc review that West doesn’t apply in this case. North Carolina has not entirely delegated its educational responsibility to charter schools, the brief said, instead allowing charter schools to operate alongside traditional public schools. Unlike the inmates in West, Baker Botts argued, North Carolina students can choose how to receive their state constitutional right to public education.

The more relevant Supreme Court precedent, according to the school, is 1982’s Rendell-Baker v. Kohn, in which the justices held that a private school for “maladjusted” teens was not a state actor, so fired teachers could not sue for civil rights violations. The 1st Circuit similarly ruled in Logiodice v. Trustees of Maine Central Institute that students could not bring civil rights claims against a private school that had contracted with the state to provide public high-school services, the Baker Botts brief said. The opposition brief also cited the 9th Circuit’s holding in Caviness v. Horizon, a due process suit by a former teacher, that the private, non-profit operator of an Arizona charter was not a state actor.

“North Carolina charter schools were created by the legislature to be run by nonprofit corporations free of intrusive state regulation as a means to promote innovation and student success alongside other non-governmental schools,” said Charter Day counsel Aaron Streett of Baker Botts via email. “We look forward to the full 4th Circuit recognizing that charter school operators are not state actors when their volunteer boards of directors devise policies without any state input.”

The ACLU’s Sherwin said the school was trying to extend the 1st and 9th Circuit cases beyond their bounds. The Supreme Court’s Rendell-Baker case and the 1st Circuit’s Logiodice precedent, she said, involved private schools, not a public charter school operating under state authority. The 9th Circuit’s Caviness holding, Sherwin said, involved claims by a former teacher, not students with a state-constitutional right to a free education. (Arizona’s charter school laws, unlike North Carolina’s, exclude charter schools from the state constitution’s education provision.)

If the ACLU ultimately persuades the en banc 4th Circuit that the girls have a constitutional cause of action, Charter Day is going to have a hard time justifying its gender-based dress code. Even the 4th Circuit panel majority that sided with the school said that the explanation offered by the charter’s founder – that the code was intended to promote “chivalry” and to teach boys to treat girls as “a fragile vessel that men are supposed to take care of and honor” – was inadequate.

Nor can the school credibly claim that the skirt requirement promotes discipline and good grades, said the ACLU’s Sherwin. The skirts-only rule has been suspended during the appellate litigation — and there’s been no discernible effect on students’ performance, Sherwin said.

“The world did not end because girls are allowed to wear pants,” she said.

Read more:

Two 4th Circuit judges weigh in on what not to wear

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