United States: Ensuring Your Student Dress Code Does Not Skirt Equal Protection Laws And Title IX

The Supreme Court denied a North Carolina charter school's petition for review of the Fourth Circuit Court of Appeals' ruling that the school's dress code requirements violated students' civil rights, the Equal Protection clause, and, possibly, Title IX. The Supreme Court's decision leaves the Fourth Circuit Court of Appeals' holdings fully intact.

In Peltier v. Charter Day Sch., Inc., three parents sued a North Carolina charter school due to its requirement that female students wear skirts and dresses, with an exception for specific days upon which the girls took a physical education class. 37 F.4th 104 (4th Cir. 2022), cert. denied, 2023 WL 4163208 (U.S. June 26, 2023). The parents argued that the skirts requirement restricted their children's movement in school, restricted the level of physical activity the children could participate in during recess, and provided less warmth during winter months. The girls were subject to these restrictions solely on the basis of gender. In support of its policy, the charter school argued that girls are "fragile vessels" deserving of "gentle treatment" by boys. The Fourth Circuit held that the charter school's dress code was merely couched in gender stereotypes about "the proper place for girls and women in society," and therefore the policy was violative of Section 1983, the Equal Protection Clause, and, quite possibly, Title IX.

As schools prepare their student handbooks and dress codes for the new school year, they should be cognizant of how those codes might uniquely affect students who belong to a legally protected class of people.

NORTH CAROLINA CHARTER SCHOOLS AND THEIR MANAGEMENT COMPANIES ARE SUBJECT TO LIABILITY UNDER FEDERAL CIVIL RIGHTS AND EQUAL PROTECTION LAWS

The Fourth Circuit held, despite the fact that charter schools and their management companies are privately owned, they were subject to liability under the federal civil rights and equal protection laws because charter schools perform a function traditionally and exclusively reserved to the state. Under North Carolina law, charter schools are public schools subject to the oversight of the State Board of Education and must comply with applicable public school law and the provisions of their charters. Therefore, charter schools possess their power by virtue of state law, and under the authority of state law, rendering privately owned charter schools subject to liability as state actors.

Similarly, education management organizations that run the day to day operations of charter schools are subject to liability where they share in responsibility of enforcing an activity which violates students' civil rights and right to equal protection under the law.

DRESS CODES MAY BE DISCRIMINATORY WHERE THE CODE DOES NOT WITHSTAND THE RELEVANT LEVEL OF SCRUTINY

Where a school implements a rule or requirement that relies upon a gender or sex classification in its enforcement, like the skirts requirement, the school must demonstrate that the challenged classification serves an important governmental purpose and that the discriminatory means are substantially related to that important governmental purpose. Policies that are merely rooted in conventional notions about the proper place of each gender in society violate the equal protection rights of adversely affected students. In this case, the rule requiring girls to wear skirts to school solely based on the view that girls are "fragile" did not withstand legal review and was determined to be unlawful.

DISCRIMINATORY DRESS CODES MAY ALSO VIOLATE TITLE IX

Charter schools, and their management companies, who implement discriminatory dress codes may also be in violation of Title IX. Both charter schools and their management companies receive federal financial assistance either directly (i.e., charter schools), or indirectly (i.e., management companies who receive compensation from charter schools) and fall within the auspices of Title IX. The Title IX regulations include an exhaustive list of exceptions, which would fall outside the scope of Title IX. Gender-based dress codes, said the Court, is not one of those exceptions.

A dress code is not absolved from Title IX liability where it negatively affects all genders. Rather, the dress code is subject to liability for violation of the rights of each gender. In determining whether a dress code is violative of Title IX, the school should consider whether the dress code excludes participation in education, denies benefits, or discriminates on the basis of sex or gender.

WHAT SHOULD SCHOOLS CONSIDER AS THEY FINALIZE DRESS CODES AHEAD OF THE NEW ACADEMIC YEAR?

As schools are drafting and finalizing student dress codes for the new academic year, they should consider whether those codes present discriminatory effects in their enforcement. Schools should consider whether the dress codes could create discriminatory effects on the basis of students' identity within any legally protected class, including race, gender, national origin, sexual orientation, physical ability, religion, etc. Some common pitfalls that schools may find themselves particularly susceptible to, and should therefore create those rules carefully, are rules and codes surrounding: dresses/skirts, piercings, hairstyles, headdress, jewelry, and many more.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.