Jurisprudence

A Federal Appeals Court Strikes a Blow Against Sexist School Dress Codes

Promoting “chivalry” is not a constitutionally legitimate justification for sex discrimination.

A crowd of uniformed schoolchildren including girls wearing skirts
Students (not from Charter Day School) wearing gendered school uniforms. Alfredo Estrella/Getty Images

Bonnie Peltier, mom of two, was at a new parents’ orientation at Charter Day School in Leland, North Carolina, when she was surprised to learn the school’s uniform policy: Her kindergarten daughter would be forced to wear a skirt, while her older son would be permitted to wear pants. Her daughter, Addi, was an active kid who liked to turn cartwheels and climb at the playground, and Bonnie worried she’d feel less free to move and play in a skirt. But the school’s response when she asked the reason for the policy was even more shocking: According to the school’s founder, Baker Mitchell, the uniform was intended “to preserve chivalry and respect among young women and men”—or, as he later explained, to teach schoolchildren that “women are regarded as a fragile vessel that men are supposed to take care of and honor.”

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Backed by the ACLU, Bonnie, joined by several parents and students, asked the school to drop its antiquated policy. (I am the lead attorney on the legal team representing them.) But the school not only declined—it fought the case all the way to the federal court of appeals. After six years of litigation, the 4th U.S. Circuit Court of Appeals issued an en banc opinion on Tuesday supporting all students’ right to wear pants.

Why did it take this long? The law in this area is stunningly behind the times, for two main reasons. First, dress codes litigation started unfolding in the 1970s, before the enactment of Title IX—the federal law prohibiting sex discrimination in federally funded education programs—and before the Supreme Court had even recognized that the Constitution limits sex discrimination at all. Meanwhile, faced with a flood of lawsuits brought by young men wanting to wear the longer hairstyles in vogue at the time—and strongly associated with counterculture—courts hearing those early cases balked. Not surprisingly, given how poorly those early cases came out for plaintiffs, few such lawsuits have been brought since.

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The enactment in 1972 of Title IX is, ironically, another reason the law has been frozen in amber. In the wake of that landmark statute—and of an accompanying regulation expressly prohibiting sex-based dress and appearance codes—dress codes requiring skirts and dresses for girls largely fell by the wayside, at least in schools. (School appearance codes with other gendered terms, like bans on crop tops or long hair and makeup for boys, remain far more common, as does uneven enforcement against girls, particularly girls of color and LGBTQ students.)

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One might have hoped that as our collective understanding of gender discrimination expanded, sexist dress codes at work would have disappeared as well. But, unfortunately, the 9th U.S. Circuit Court of Appeals breathed new life into them in 2006 when it upheld a policy at Harrah’s casino requiring women bartenders to wear makeup. Despite testimony from Darlene Jespersen, the plaintiff, that she found the policy degrading and demeaning, the 9th Circuit refused to recognize the gender stereotypes at play. Instead, relying on that same outdated 1970s case law, the court found the appearance code didn’t violate Title VII because it imposed “comparable burdens” on men.

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Thanks to the 4th Circuit’s well-reasoned decision, we may finally be closing the book on this chapter of history. Not long after the early dress code cases were first litigated, the Supreme Court recognized that the equal protection clause prohibits government actors from drawing distinctions based on sex without a sufficiently persuasive reason. If the distinctions reflect gender stereotypes, they are flatly impermissible. Applying that precedent, the 4th Circuit majority held that Charter Day School’s skirts requirement was unconstitutional because its purpose was “to telegraph[] to children that girls are ‘fragile,’ and require protection by boys.” As the court observed, “it is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes.”

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Before getting to the equal protection argument, though, the court had to establish that the school was even subject to the Constitution. Charter Day School argued that because it was run by a private nonprofit corporation rather than the school district, it didn’t have to comply with constitutional mandates. (As a rule, the Constitution binds only the government, not private individuals or corporations.) A majority of the 4th Circuit rejected that argument by a 10–6 vote, holding that charters in North Carolina, which are publicly funded and expressly designated as public schools under state law, are actually government actors when it comes to how they treat students. As the court recognized, ruling otherwise would grant states a free pass to establish privately operated shadow public school systems as a Constitution-free zone, permitting all sorts of violations, from race segregation to religious discrimination to free speech, with no meaningful recourse for students. (Notably, the National Alliance for Public Charter Schools had filed a brief in support of the plaintiffs—and has since praised the ruling as correct.*)

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The 4th Circuit majority opinion further brushed aside the other “parade of horribles” three dissenting judges advanced: that applying the Constitution to charters would somehow stifle innovation or lead to the demise of “chivalry” altogether. As the majority pointed out, “nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness.” And North Carolina public schools remain free to experiment with innovative programs, “but not at the expense of constitutional protections for students”—a line the courts have drawn since Brown v. Board of Education. In other words, schools like charters are free to use a novel math curriculum, but they can’t force Black students to sit in the back during math class.

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Nor was it lost on the majority that the age of chivalry represented a time “when men could assault their spouses and commit other violent crimes against them with impunity.” As the Judge Barbara Milano Keenan wryly observed, “chivalry may not have been a bed of roses for those forced to lie in it.” Our clients would agree.

As to Title IX, an even larger majority (13–3) rejected the argument that the law did not apply to dress codes. It recognized that even though the statute does not mention them specifically, the broad prohibition on discrimination “on the basis of sex” clearly covers dress codes. The structure of the statute—which makes exceptions for some single-sex rules and activities, but notably not dress codes—reinforces that conclusion.

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Perhaps most significantly, the court rejected the school’s “comparable burdens” argument—that the skirts requirement was fine because the dress code as a whole didn’t treat girls any worse than boys, who have to wear pants. This represents the first time an appellate court has rejected the reasoning of the Harrah’s decision, explaining that the 9th Circuit had relied on outdated case law and “traditional” gender norms. Instead, the court applied the commonsense notion that two wrongs don’t make a right. This principle was recently reiterated by the Supreme Court in 2020’s Bostock v. Clayton County, Georgia, which held that firing someone because of their sexual orientation or gender identity is a form of sex discrimination prohibited under Title VII. As the court found, “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally.” But both Hannah and Bob were fired because of their sex. Thus, “instead of avoiding Title VII exposure, this employer doubles it.”

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The 4th Circuit did not decide whether the skirts requirement ultimately violated Title IX, instead kicking the case back to the lower court to dig into the merits of whether the skirts requirement had harmed girls. Its reasoning, however, all but compels the lower court to strike down the school’s dress code. In a separate, concurring opinion, Judge Keenan highlighted expert evidence showing gender stereotypes are harmful for all children, while emphasizing that girls’ overall success at CDS did not mean forcing them to wear skirts was harmless: “We cannot excuse discrimination because its victims are resilient enough to persist in the face of such unequal treatment.”

This is likely not the last chapter of this saga. Baker Mitchell’s convictions about appropriate attire for children clearly run deep; CDS may well attempt to defend its uniform policy all the way to the Supreme Court. But at least for now, the 4th Circuit has succeeded in dragging the law on dress codes into this century.

Correction, June 16, 2022: This piece originally misidentified the National Alliance for Public Charter Schools as the National Association of Public Charter Schools.

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