Boys wear pants. Girls wear skirts. Is that constitutional?

There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  But in a 36-page decision a federal court held that this is an unconstitutional requirement. It violates the Equal Protection Clause by imposing a burden on the girls that is not “comparable” to the burden facing the boys:

Yes, the boys at the School must conform to a uniform policy as well. But plaintiffs in this case have shown that the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs and/or uncomfortable layers of leggings under their knee-length skirts in order to stay warm, especially moving outside between classrooms at the School.

The court shot down the skirt requirement in the dress code pursuant to the Constitution, rather than Title IX.  In fact, the court held that Title IX does not apply to “codes of personal appearance.” So the Title IX claim was dismissed, but the girls were still successful in the suit because of the Equal Protection issue.

This is a school that prides itself on its old-school culture.  The dress code is very conservative for both sexes, but the trustees of the charter school failed to make the case that requiring skirts on the girls was essential to that vibe.  The school was both popular with parents and successful in academics, but again, the defendants failed to show that bare legs on the girls contributed to this success.  The court, without a bit of snark, noted that the “skirts requirement in this case is not consistent with community norms.”  The court continued:

Women (and girls) have, for at least several decades, routinely worn both pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s.

Some of you may be wondering: does it make a difference that this is a charter school?  Charters are schools of choice. No one is forced to attend.  Presumably the parents knew about the dress code and chose to enroll their children there.  This issue did come up in an earlier ruling in the same case.  The court dismissed the argument, noting that the charter school’s attorneys “cite no law to support this waiver argument and do not dispute that charter schools are statutorily-defined public schools.” 

Reading this case reminded me of the stories I heard at the memorial service for Dr. Joe Parks, the first Executive Director of Region 13.  Dr. Parks was loved and respected by those who worked for him, including me.  In many ways he was a man ahead of his time.  At the memorial service I heard some of the women who worked at Region 13 in the early days—late 1960s and early 1970s—as they recalled screwing up their courage to ask the boss if he would permit the women to wear pants to work. His response: “I’ve got more important things to do here than to tell you girls what to wear to work.”

Even though they were referred to as “you girls” they counted it as a victory.   But as this case illustrates, the war is not yet over.  The case is Peltier v. Charter Day School, Inc., decided by the federal district court for the Eastern District of North Carolina on March 28, 2019.  The earlier ruling was on March 30, 2017 and can be found at 2017 WL 1194460.


Tomorrow: Toolbox Tuesday!!