Can a State-Funded Charter School Require Female Students to Wear Skirts?
A state-funded charter school in North Carolina may not require female students to wear skirts because it counts as a state actor, the en banc U.S. Court of Appeals for the Fourth Circuit concluded today in Peltier v. Charter Day School. The en banc court split 10-6.
Senior Judge Keenan wrote the majority opinion, joined by Chief Judge Gregory and Judges Motz, King, Wynn, Diaz, Thacker, Harris, Heytens, and Senior Judge Floyd. Judge Wynn wrote a concurring opinion, joined by Judges Motz, Thacker, Harris, and Keenan. Keenan also wrote a separate concurring opinion, joined by Judge Thacker. Judge Quattlebaum wrote an opinion dissenting in part and concurring in part, joined by Judges Richardson and Rushing in full, and Judges Wilkinson, Niemeyer, and Agee in part. Judge Wilkinson wrote a dissenting opinion, joined by Judges Niemeyer and Agee.
According to Senior Judge Keenan’s majority opinion, the Charter Day School (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.” Plaintiffs challenged this policy as an unlawful sex-based classification. According to the plaintiffs, the policy is based upon harmful gender stereotypes and violates both the Equal Protection Clause of the Fourteenth Amendment and Title IX. In Peltier, the Fourth Circuit affirmed the district court’s entry of summary judgment for the plaintiffs on the Equal Protection claim, rejecting the school’s claim that it is not a state actor, and vacated the district court’s summary judgment for the defendants on the Title IX claim.
Key to the court’s holding was the conclusion that CDS is a state actor. Here is Judge Kennan’s summary of that portion of the opinion:
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
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