The Washington PostDemocracy Dies in Darkness

A school made girls wear skirts. A court ruled it unconstitutional.

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This story has been updated.

At a North Carolina charter school, all students follow the same curriculum. But their gender-specific uniform requirements — pants for boys, and skirts, skorts or jumpers for girls — separate them in a way a federal court on Tuesday deemed unconstitutional.

The dress code at Charter Day School in Leland, N.C., no longer can be enforced, Senior Circuit Judge Barbara Milano Keenan wrote in a majority opinion. The school founder’s claim that the uniform rules promote chivalry “based on the view that girls are ‘fragile vessels’ deserving of ‘gentle’ treatment by boys” was determined to be discriminating against female students in the 10-to-6 ruling by the U.S. Court of Appeals for the 4th Circuit.

“It is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes,” Keenan wrote in the opinion.

“By implementing the skirts requirement based on blatant gender stereotypes about the ‘proper place’ for girls and women in society, [the school] has acted in clear violation of the Equal Protection Clause,” she continued.

The decision followed a seven-year effort to end the school’s skirt requirement for female students.

In 2015, Keely Burks, then a 14-year-old eighth-grader at Charter Day School, launched a petition with her friends to change the uniform policy. They ultimately collected over 100 signatures, she wrote in 2016, but the document “was taken from us by a teacher and we never got it back.”

Around the same time, a kindergartner’s mother inquired about the requirement, which she considered to be discriminatory. The school’s founder, Baker A. Mitchell, responded to her email by explaining that Charter Day School was “determined to preserve chivalry and respect among young women and men” and that there was a need to “restore, and then preserve, traditional regard for peers,” according to court documents.

Burks, the kindergartner and a fourth-grader later became plaintiffs in a lawsuit filed in 2016 by the American Civil Liberties Union. They alleged in the suit that being forced to wear skirts prevented them from playing freely, moving actively and feeling as if their comfort was valued as much as that of male students.

“I hope that by challenging my school’s policy, I can help other girls who want to go to school without being stereotyped or who just want to play outside or sit in class without feeling uncomfortable,” Burks wrote at the time.

A lengthy court battle followed, in which decisions about the case volleyed between federal and state courts examining whether the dress code infringed on female students’ rights.

“No, this is not 1821 or 1921. It’s 2021,” Keenan, the judge, wrote last summer. “Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country’s Supreme Court, in Congress, and, today, a woman is Vice President of the United States.”

To determine the skirt requirement’s constitutionality, the judges considered whether the charter school was a public entity. Charter Day School argued that it was a private entity and that the Constitution’s equal protection clause — which bans discrimination — did not apply.

But a majority of the federal appeals court ultimately disagreed. Since the charter school receives state funding, the judges wrote, it has to follow the same civil rights laws and protections as public schools, which are prohibited from mandating dress codes that are discriminatory or censor student expression.

The ruling is one that has significant implications for other dress code cases, said Galen Sherwin, a senior staff attorney at the ACLU’s Women’s Rights Project who represented the plaintiffs. Other states designate their charter schools as public schools in the same way North Carolina does, meaning the court’s finding could apply to more charter school systems around the country.

What’s more, “this was the first time a circuit court has recognized the harms of gender stereotypes ... and the harmful role they play,” Sherwin said. The ruling rejected the argument, established in previous court cases, that because Charter Day’s dress code also limited what boys could wear, it wasn’t discriminatory.

In doing so, Sherwin said, the 4th Circuit has laid out an updated legal framework for judges deciding these kinds of cases: “The rejection of that [reasoning] is actually a really significant and important development in the law” that could impact both students and workers.

What’s more, because the “en banc” ruling involved all of the 4th Circuit judges, instead of a panel, the court’s decision has even more heft, Sherwin said. While the court settled the question of whether Charter Day’s dress code violated the 14th Amendment, a district court will reconsider whether it also violates Title IX at a later date.

Aaron Streett, a lawyer representing Charter Day School, told The Washington Post that the school is evaluating next steps, adding that the court’s opinion “limits the ability of parents to choose the best education for their children.”

For the plaintiffs in the lawsuit, the ruling was celebrated — even after some graduated from the K-8 institution.

“I’m glad the girls at Charter Day School will now be able to learn, move, and play on equal terms as the boys in school,” Bonnie Peltier, the mother of a former student involved in the case, said in a news release. “In 2022, girls shouldn’t have to decide between wearing something that makes them uncomfortable or missing classroom instruction time.”