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Skirt requirement violates equal protection, Title IX

Where a charter school’s dress code required girls to wear skirts, that rule violated the Equal Protection Clause of the 14th Amendment and subjected the girls to discrimination and denied them the full benefits of education in violation of Title IX.


Charter Day School or CDS, a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys. The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the 14th Amendment, and violates Title IX. They sued CDS and Roger Bacon Academy Inc., or RBA, which manages CDS.

The district court concluded that CDS was a state actor for purposes of the Equal Protection claim brought under 42 U.S.C. § 1983. It concluded, however, that RBA does not have a sufficiently close tie to the state to qualify as a state actor.

The court held that the skirts requirement violates the Equal Protection Clause. But it held that dress codes categorically are exempt from Title IX’s prohibition against gender discrimination. A panel of this court reversed the district court’s judgment on both the Equal Protection and the Title IX claims. That decision was vacated by a vote of the full court, which now considers this appeal en banc.

State actor

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 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, the court 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.

With respect to RBA, the plaintiffs assert that RBA’s “intertwinement with CDS,” its role in daily school operations, and its responsibility for enforcing the skirts requirement renders RBA a state actor. The court disagrees. 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.

Equal Protection

According to CDS, the skirts requirement does not violate the Constitution because boys also are limited in dressing and grooming options, including being subject to prohibitions on long hair and wearing jewelry, which are applicable only to male students. CDS further asserts that because its female students have achieved academic and extracurricular success, these students have not been “hobbled” by the skirts requirement. The court disagrees with CDS’ arguments.

Title IX

The defendants contend that because Title IX does not explicitly reference dress codes, the court should defer to the Department of Education’s “authoritative interpretation” of the statute. Separately, RBA also argues that it is not a recipient of federal funds and, thus, is not subject to Title IX. The court disagrees with the defendants’ arguments.

Because the statute unambiguously covers sex-based dress codes, the court does not defer to the department’s rescission of its regulation applicable to such policies. On remand, the district court must determine whether the skirts requirement 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.

Affirmed in part, vacated in part and remanded.

Concurring opinion

Wynn, J., with whom Motz, J., Thacker, J., Harris, J. and Keenan, J. join, concurring:

This case presents a simple question: is CDS a state actor for the purposes of the 14th Amendment? According to legal principles (and common sense), the answer is an unequivocal “yes.” So, I fully concur in the well-reasoned majority opinion.

Yet, our good colleague Judge Wilkinson disagrees and pens a separate opinion. It predicts a parade of horribles will follow in the wake of the majority’s decision, including “collateral damage” to institutions like historically Black colleges and universities. And it claims that the majority opinion’s holding will curtail “student and parental choice” by subjecting charter schools “to the slow strangulation of litigation.” Both arguments are profoundly flawed.

Concurring opinion

Keenan, J., with whom Thacker, J. joins, concurring:

According to the defendants, because girls at CDS “succeed” in academic and extracurricular activities, the skirts requirement is harmless in its effect on CDS’ students. I write separately to emphasize my strong disagreement with this view, which not only is antediluvian but also answers the wrong question. Left unanswered is the full spectrum of success that female students might have achieved if they had not been subjected to the pernicious stereotypes underlying the skirts requirement. It is irrelevant how well these students performed despite carrying the burden of unequal treatment. We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment.

Dissenting opinion

Quattlebaum, J., with whom Richardson, J. and Rushing, J. join dissenting in part and concurring in part, and with whom Wilkinson, J., Niemeyer, J. and Agee, J. join dissenting in part:

Although neither the Supreme Court nor any other circuits have ever concluded that a publicly funded private or charter school is a state actor, the majority does so today. In my view, its analysis in reaching that conclusion varies between misconstruing and ignoring the principles provided by the Supreme Court.

Dissenting opinion

Wilkinson, J., Niemeyer, J. and Agee, J. dissenting:

The majority seeks to expand the concept of state action and the reach of Title IX to a point that will drape a pall of orthodoxy over charter schools and shift educational choice and diversity into reverse. Because I agree with all the points made by Judge Quattlebaum on the state action question, I am pleased to join the dissenting portion of his excellent opinion. For myself, however, I would go further, and have the case remanded with directions to dismiss it.

Peltier v. Charter Day School Inc., Case Nos. 20-1001, 20-1023, June 14, 2022. 4th Cir. (Keenan), from EDNC at Wilmington (Howard). Aaron Michael Streett for Appellants/Cross-Appellees. Galen Leigh Sherwin for Appellees/Cross-Appellants. VLW 022-2-145. 103 pp.

VLW 022-2-145