School dress code violates the Constitution. So sayeth the 4th Circuit

There is a K-8 charter school in North Carolina that requires girls to wear skirts.  No, really—they do.  Yes, the boys at the School must conform to a uniform policy as well, and it’s equally conservative. But the girls claim that this skirt requirement imposes a burden on them that the boys do not have to deal with.  They are more inhibited on the playground, they have to take care as to how they sit.  It can be cold on bare legs in North Carolina. 

The founder of the school, who still serves on the board, claimed that the dress code promoted chivalry. He testified that “chivalry” meant “a code of conduct where women….are regarded as a fragile vessel that men are supposed to take care of and honor.” 

I intend to poll the Women of Walsh Gallegos and see how they feel about that.  Fragile vessels, indeed.  Fiddle-dee-dee, Miss Scarlet!

But that gives you an idea of the culture the charter school was promoting. One of the board members testified that school at the Charter Day School was more like school was 50 years ago.  This appealed to many parents, but three of them, representing girls in kindergarten, 4th and 8th grades, sued the school, alleging that the dress code, besides being a few centuries behind the times, was illegal. 

The 4th Circuit, sitting en banc, has now held that the “girls must wear skirts” provision in the dress code violates the Equal Protection Clause of the Constitution.   Pursuant to prior cases, the court noted that any distinction based on sex must be justified by an “exceedingly persuasive case” to the effect that the distinction serves an “important governmental objective.”  The majority opinion concluded that Charter Day School’s explanation for its skirt requirement fell “woefully short” since the rationale for the requirement was to reinforce outdated gender stereotypes.  That’s not an “important governmental objective.” 

The court also held that Title IX applies to school dress codes, and remanded the case to the lower court for a ruling as to whether the dress code also violates that statute.  But the big news here is the Constitutional ruling as it will be cited in every future challenge to a distinction in a school dress code based on sex. 

So get ready.  It’s Peltier v. Charter Day School, Inc., decided by the entire 4th Circuit on June 14 2022. It’s cited at 37 F.4th 104.  You might want to take a look at this set of FAQs from TASB about student dress codes:


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