Peltier v. Charter Day School, No. 20-1023 (4th Cir. 2022)
By Dan Fotoples, J.D., M.A, Senior Content Developer, TNG
This case is an “en banc rehearing” of a case the Fourth Circuit decided in 2021. For more information on that decision, please click here.[1]
PROCEDURAL HISTORY
Peltier, a student’s parent, along with two other parents, filed suit alleging violations of the Equal Protection Clause and Title IX. The plaintiffs alleged that requiring female students to wear skirts is a sex-based classification rooted in gender stereotypes.[2] The parties filed cross-motions for summary judgment. The district court concluded that the dress code violated the Equal Protection Clause. However, the district court determined that the dress code did not violate Title IX because the Department of Education (ED) had rescinded a prior regulation governing dress codes. The district court concluded that such action meant that ED determined that Congress did not mean Title IX to extend to dress codes.
On appeal, the Fourth Circuit reversed the district court’s judgment on both the Equal Protection and Title IX claims. The Fourth Circuit decided to vacate the original Fourth Circuit opinion and rehear this case en banc.
SUMMARY OF FACTS
Charter Day School (CDS) is a charter school in North Carolina. CDS entered into a charter school management contract with Roger Bacon Academy (RBA), a for-profit corporation founded and owned by Baker Mitchell. RBA is responsible for the day-to-day operations of CDS.
CDS maintains a dress code that, among other provisions, requires all students:
- Must wear a unisex polo shirt
- Must wear closed-toe shoes
- May not have excessive or radical haircuts and colors
- May not wear jewelry if they are a boy
- May only wear skirts, jumpers, or skorts if they are a girl
- May only wear shorts or pants if they are a boy
CDS may discipline a student for violating the dress code. When Peltier expressed objections to the skirt requirement, the founder of the school replied that the dress code preserves chivalry and respect, restoring and preserving traditional values. The founder 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.”[3]
FINDINGS AND SIGNIFICANT ISSUES
Beginning with the Equal Protection claim, the court determined that CDS qualified as a state actor, thereby requiring the school comply with the Equal Protection Clause. The court asserted that CDS is a state actor based on state performance standards, its funding source, its open enrollment, and a state law defining charter schools as public schools.[4]
Looking at the merits of the Equal Protection claim, CDS argued that the dress code does not violate the Equal Protection clause because male and female students are subject to comparable burdens under the policy given that the dress code limits both males and females in dressing and grooming requirements. CDS also asserted that a dress code helps to instill discipline and keep order.
Sex-based classifications receive more scrutiny from courts than some other kinds of classifications, and the court found CDS’s arguments unpersuasive. The “comparable burdens” argument fails because imposition of gender-based restrictions on one sex is not a defense to gender-based discrimination against another sex. The court also cited the founder’s comment about the fragility of women and references to chivalry, asserting, “It is difficult to find a clearer example of a rationale based on impermissible gender stereotypes.”[5] The court found no additional important governmental objective in the dress code, and thus ultimately determined CDS violated the Equal Protection clause.
Turning to the Title IX claim, the court first addressed whether RBA is subject to Title IX requirements. The court quickly dispatched this question. The Title IX regulations make clear that Title IX applies to recipients of federal funding as well as those who receive federal financial assistance through another recipient. Additionally, the Supreme Court has clarified that entities receiving federal assistance, whether directly or through an intermediary, are recipients within the meaning of Title IX. As RBA receives 90% of its funding from schools operated by CDS, and CDS receives nearly all its funding from public sources, including federal funding, RBA is subject to Title IX.
The appeals court disagreed with the district court about the applicability of Title IX to dress codes. The Title IX statutes list entities and activities as exceptions, but dress codes are not among the exceptions. Based on the plain language and structure of the statute, the appeals court concluded Title IX unambiguously encompasses sex-based dress codes. The ED’s decision to rescind their regulatory guidance has no impact on the plain language of the statute and sub-regulatory guidance is not controlling of a court’s interpretation. The appeals court sent the Title IX claim back to the district court for further fact finding on the Title IX claim.
KEY TAKEAWAYS
- For publicly funded schools, gender or sex-based prescriptive dress codes continue to have varying success under judicial scrutiny. With another federal circuit now emphatically rejecting gender- or sex-based dress codes, publicly funded schools run the risk of Title IX and Equal Protection lawsuits. Schools and districts with dress codes should consider making changes to any gender- or sex-based distinctions, or at least should carefully examine and define the rationale behind such distinctions. Why maintain the code? How could the school or district reach the same goals without gender-or sex-based assumptions and distinctions?
- Not all dress code cases feature a school founder willing to admit that the dress code focuses on chivalry and the assumption that women and girls are fragile. The court here argued that striking down the sex-based dress code does not prohibit schools from adopting policies promoting “traditional” values, respect, and courtesy, as CDS argued in this case. Those policies just may not originate in outdated conceptions of gender or sex differences that limit students’ ability to fully participate in the education program or activity.
- Sex-based classifications receive a higher degree of scrutiny from courts than classifications based on other characteristics, meaning that gender or sex-based dress codes have a higher bar to overcome. The court here also held that Title IX applies to dress codes. As a result, gender or sex-based classifications will face significant hurdles when students or parents challenge them in court, based on Title IX and/or the Equal Protection Clause.
Read more Keeping Up With the Courts blogs here.
[1] An “en banc” rehearing is a hearing with nine federal circuit court judges, rather than the three judges that usually hear a panel case. Courts agree to rehear cases “en banc” when there is a particularly significant issue at stake or the panel’s original decision appears to conflict with another decision of the court.
[2] The Equal Protection Clause, and the case law surrounding it, uses the term “sex-based classification” to refer to policies or practices that separate out groups by sex or gender for different treatment.
[3] No. 20-1023 (4th Cir. 2022) at 10.
[4] The court determined that RBA did not qualify as a state actor.
[5] No. 20-1023 (4th Cir. 2022) at 34.