Charter Day School is, as the name implies, a charter school — established by a charter granted by the state of North Carolina. It's a tuition-free public K-8 school, part of the Classic Charter Schools group, which are all funded largely by public (including federal) funds, but run by a private company, Robert Bacon Academy.
This financial arrangement, while technically legal, has been the target of criticism for years — including an in-depth ProPublica investigation in 2014 — but there are other concerns with the school. Namely, its dress code.
Charter Day School's dress code forbids female students from wearing pants, part of the school's mission to "preserve chivalry and respect among young women and men." The school and its traditionalist founder, Baker Mitchell, consider women "fragile vessels" to be protected by men — but some, including federal judges, consider the school's dress code antiquated and discriminatory.
The original suit
The lawsuit against Charter Day School (CDS) was inspired, in part, by a playground incident: a young female student did a cartwheel and, in doing so, exposed the shorts under her skirt. The student was reprimanded. That's something that, by definition of the school's dress code, would not have happened to male students wearing the pants required of them — or a female student had pants not been proscribed.
In 2016, three female students challenged Charter Day School over a requirement in the school’s dress code that requires girls to wear skirts to school and prohibits them from wearing pants or shorts.
The plaintiffs argued the school’s dress code violated the Equal Protection Clause of the Fourteenth Amendment, as well as the Title IX clause of the Education Amendments Act The parents of the three female students argued that the dress code prevented their daughters from participating in certain school activities and interfered with their ability to receive proper education, due to being distracting and not allowing them to be comfortable in class.
The suit was brought forth to the Eastern District Court of North Carolina. Originally, in 2019, the court ruled in favor of the plaintiffs –- though solely on the Equal Protection argument. So, why not Title IX?
Title IX
Title IX is far less self-explanatory than most people seem to think it is. The law itself is only one somewhat long line of text: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
There is nothing in the law about dress codes. That’s where things start getting complicated — and left up to interpretation by the courts.
CDS is a public school according to North Carolina law, and nearly all of its funding comes from public funding — most of that is from the state, but some is from the federal government. And, Title IX, like similar federal laws, doesn't hinge on how much federal funding a program gets.
So, Title IX applies in this situation, right? Well, no. In, 2019 the courts argued in favor of the defendants, saying that Title IX is inapplicable to dress codes — based on a 1982 move by the Department of Education to remove a regulation prohibiting "discrimination in personal appearance codes." That 1982 decision would allow CDS to point to federal law and say there was no explicit mention of dress codes when it came to Title IX.
That decision came from a complicated legal process known as the Chevron deference.
Chevron deference
The Chevron deference comes from a landmark 1984 Supreme Court case, where environmental advocates sued the Chevron U.S.A. oil company. The 'deference' is a test applied to independent agencies in the case of making sure they are following a specific law or regulation which that agency is responsible, like the DEQ enforcing environmental regulations or the DOT overseeing road construction standards. When one of these regulations is at issue in a court case, the court defers to these agencies’ interpretation of whether or not a rule is being followed — unless that interpretation is “unreasonable," or Congress has passed a law with specific language addressing the issue.
A reasonable interpretation would be, for example, the Department of Transportation saying a paved road was up to snuff when it appeared to have had met all the size and constructions standards. An unreasonable example would be the DOT approving a dirt road.
Here’s another example of an unreasonable interpretation: the law requires police departments to have bodycams. A small-town police department says “well, we’d like to have body cams, but we use pen and paper instead, but we feel like since we’re writing things down they’re being recorded, and the law is being followed.” If the Department of Justice were to say this police department was following the law, it's likely a court would find that unreasonable.
So, in this case, in the initial 2019 federal court ruling, when it came to the issue of whether Title IX applied to dress codes, the courts deferred to the 1982 Department of Education decision, since there were no other federal laws specifically addressing the issue. That's why, initially, the Title IX claim was thrown out.
But the complicated tapestry of legal concepts doesn't end there — there's also the issue of 'state actors' and 'state action,' which is where the contentious (but legal) financial organization of the Classic Charter Schools — including Charter Day School — comes back into play.
State actor
Ok, so what is the “state actor” argument all about?
The Equal Protection Clause applies to the actions of states, not private persons or entities. The plaintiffs argued that the school, as well as the for-profit company that actually runs it, Roger Bacon Academy (RBA), are both state actors, thus violating the Fourteenth Amendment.
But the defendants argued that while CDS is legally a public school, RBA is a private contractor which runs day to day operations, including enforcement of the dress code. Essentially, the defendants tried to put enough legal daylight between RBA and CDS so that the private, for-profit management company, which administered the dress code, would be free from state or federal interference.
To explain, a test is applied to see whether or not an action can be “fairly attributable to the State.” A plaintiff must show that the state was “responsible for the specific conduct of which the plaintiff complains.” So in this case, North Carolina’s constitution requires the state to provide “a general and uniform system of free public schools.” The Charter School Act gives the state permission to issue charters, which are like contracts, that permit private entities to run schools that “operate independently of existing schools.” Even though it’s run by a private company, in this case Roger Bacon Academy (RBA), the charter school (CDS) is still considered a public school is acting on behalf of the state in this sense by performing an function that “traditionally has been performed exclusively by the state”.
The other criterion being used to determine whether or not CDS is a state actor, is whether or not the state is “pervasively” entwined with the workings of the private entity. In this case, the court argued that it is, because 95% of the school’s money comes from public funding.
In the 2019 ruling, the court essentially accepted the defendants' arguments that RBA and CDS were legally separate enough to prevent the private management organization from being subject to federal and state law overseeing 'state actors.' The court determined that the enforcement of this dress code constituted state action, because the offering of a “free and public education” is something traditionally performed by the state, so it makes sense that the actions of the school can be considered actions of the state. However, they granted this win for the plaintiffs only against CDS — not RBA. Since CDS is a non-profit, and protected by certain state statutes, and RBA is a private, for-profit company, this had a clear bearing on any future settlements or judgments.
Crisscross: The rulings get flipped on their heads
So, in 2019, the courts ruled that while Title IX didn't apply and RBA wasn't a state actor, the Equal Protection clause did apply to CDS.
After these decisions, both parties cross-appealed the district court’s summary judgment ruling. The appeals court was divided, but reversed both of these claims in August of this year, voting 2-1.
This time, judges continued to hold that RBA wasn't a state actor, but now found that CDS was not acting directly on behalf of the state. The majority found that CDS does not perform a traditionally exclusive function of the state, does not fulfill a constitutional obligation that North Carolina delegated to it, state law did not compel CDS to adopt this dress code and the state is not pervasively intertwined with CDS, regardless of funding.
At the same time, judges flipped on Title IX — this time, the majority said that the text of Title IX “plainly” encompasses school dress codes. In other words, this time the court didn’t think CDS’s interpretation of Title IX was reasonable — and so it didn’t defer to them.
Circuit Judge Barbara Milano Keenan dissented on the Title IX decision, in part. She thought CDS, the school itself, was a state actor, but agreed with her fellow judges that RBA was not She also said that it was 2021 and that requiring girls to wear skirts in a public school to go with antiquated views on chivalry reinforced harmful gender stereotypes.
Now what?
Now, the argument has been pushed higher up in the Court of Appeals — where the entire 16-member panel of judges in the 4th U.S. Circuit will review the case based on oral arguments heard earlier this month.
While filing for relief under the Equal Protection clause has effectively been ruled out, the three-judge panel has held open the door for the plaintiffs to continue their suit under the violation of Title IX.
The ruling from the full en banc 4th U.S. Circuit Court of Appeals is expected in the first half of 2022. Either party could appeal that ruling to the U.S. Supreme Court — however, like North Carolina's top court, the Supreme Court has discretion over whether or not to hear the case, and could decline to review it, kick it back down to the lower courts, or take it up.
