Court Strikes Down “Skirts Only” Dress Code in Charter School
At one point in American history, public school dress codes were common. At their worst, the dress codes required girls to wear clothing that all-male school boards deemed appropriate for females. Under many of those codes, only boys were permitted to wear pants.
Times have changed. Whether they serve in the Senate, work as police officers, or run multinational corporations, women commonly wear pants. Some school districts, however, continue to maintain gender-based dress codes that stir controversy.
The Charter Day School in Leland, North Carolina maintained a uniform code that required girls to wear skirts while requiring boys to wear pants or shorts. School officials argued that the dress code promoted “traditional values” and fostered “mutual respect” between boys and girls.
Whether a reasonable dress code promotes educational goals is for parents and school boards to decide. When “traditional values” perpetuate gender stereotypes, however, they must give way to constitutional values that recognize the equal rights of males and females. A lawsuit against the Charter Day School by girls who wanted to dress just as comfortably as boys recently ended with a decision that declared the uniform code to be unconstitutional.
Charter Day School
Charter Day School is a public, K-8 school. Charter schools in North Carolina are publicly funded but are operated by private, nonprofit corporations that are governed by a board of trustees rather than a school board.
About 900 students are enrolled in Charter Day School’s elementary and middle schools. The nonprofit school contracts school management to a for-profit corporation that is solely owned by the same person who founded Charter Day School.
Charter Day School claims to be a “traditional values” charter school. The school’s articulated values include healthy minds and obedience to authority. Noticeably absent are the traditional American values of liberty, equality, and free expression.
The school claims that its uniform code promotes discipline and “team spirit.” All students must wear white or navy-blue tops tucked into khaki or blue bottoms.
Girls must wear knee-length or longer skirts, skorts, or jumpers. Skorts are shorts with a fabric panel resembling a skirt covering the front, or skirts with shorts hidden underneath. A jumper is a dress worn over a top.
Boys must wear pants or knee-length shorts. Girls cannot wear shorts. Boys must wear socks while socks are optional for girls. Girls, but not boys, may wear certain earrings, necklaces, and bracelets. Boys must wear their hair above the collar and ears, a requirement that does not apply to girls. Neither girls nor boys may sport “radical” hairstyles or hair colors.
Three female students sued the school and its trustees, challenging only the requirement that prohibits girls from wearing pants or shorts. They contended that pants are warmer and more comfortable and permit greater freedom of movement than skirts.
The students argued that the ability to wear pants or shorts gives an educational benefit to boys that girls are not permitted to share. They contended that wearing skirts forces them to constantly position their legs and distracts from learning.
The students also argued that wearing skirts prevents them from climbing or playing sports during recess, for fear that their undergarments will be exposed. They contended that when girls do engage in those activities, they are reprimanded by teachers.
The students contended that the uniform code sends a message that comfort and the freedom to engage in physical activity are more important for boys than girls. The trustees countered that the uniform code promotes discipline and respect. However, none of the trustees could explain how discipline would be impeded, or why girls would receive any less respect, if they wore pants at school.
The school’s defense of its uniform code boiled down to its belief in ill-defined “traditional values,” which seemed to amount to a belief that girls should dress as they did in the 1950s. The trustees were proud of the high test scores that its students earn, but offered no evidence that the uniform policy contributes to the ability of students to take tests.
The court rejected a claim that Title IX, the law prohibiting sex discrimination in educational institutions, prohibited a gender-based uniform code. In 1982, the Department of Education revoked a regulation that prohibited “discrimination in the application of codes of personal appearance.” Since the regulation was never reinstated and since Congress did not change Title IX to make it clearly applicable to dress codes, the court deferred to the Department’s interpretation of Title IX.
The court nevertheless accepted the students’ argument that the school violated their constitutional right to equal protection of the law. The school and its trustees argued that the Equal Protection Clause applies to the government, not to private individuals or corporations, but the court concluded that the Charter Day School was undertaking a governmental function by providing a free public education to students, a traditional role of government.
The court decided that North Carolina’s decision to privatize charter schools did not change the essentially governmental nature of the schools. Charter schools were created by statute and are publicly funded. The state requires charter schools to comply with the same educational standards that apply to other public schools. The state also requires charter schools to follow state law regarding codes of conduct and student discipline, including the state’s prohibition of long-term suspension or punishment for dress code violations.
Notwithstanding North Carolina’s privatization of public education by contracting with private individuals and corporations to operate charter schools, the court decided that Charter Day School acted under color of state law when it adopted a dress code as part of its student disciplinary code. Charter school owners might not be “state actors” for all purposes, but they acted as agents of the state when they create disciplinary policies that include a dress code.
Having found that Charter Day School is required to obey the Constitution, at least with regard to its disciplinary policy and uniform code, the court had little trouble deciding that the uniform code violated the right to equal protection of the law. While courts are reluctant to interfere with school governance and while courts have limited the constitutional rights of students when they conflict with the reasonable need for schools to preserve order, the court found no justification for allowing boys but not girls to wear pants.
The school’s reliance on its promotion of “traditional values” and its need to keep order was unconvincing, given the school’s inability to articulate how forcing girls to wear skirts furthers those goals. The school offered no evidence that boys base their treatment of girls on whether the girls are wearing pants or a skirt. Nor did the school demonstrate that community values are furthered by only allowing males to wear pants. Social norms no longer place any value on restricting the ability of females to wear pants.
While a gender-based grooming code might pass constitutional muster if it imposes “comparable burdens” on both genders, Charter Day School’s uniform code imposed unique burdens on girls by forcing them to wear skirts that restricted their freedom of movement. And unlike boys, girls were also forced to choose between having cold legs in the winter or wearing uncomfortable leggings. The court concluded that “the skirts requirement causes the girls to suffer a burden that boys do not, simply because they are female.” The uniform code therefore violated the right to equal protection of the law.
The Future of Dress Codes
While most schools still maintain a dress code, and while some require uniforms, school boards and parents often engage in a spirited debate about the value of conformity versus individuality. Some public schools respect the right of students to express themselves through hairstyles and clothing that reflect their personality or address body image issues. Others view uniforms as a means of assuring that less affluent students do not feel shame when they compare their clothing to the outfits worn by students who live in wealthier households.
The court made clear that its narrow decision did not address other aspects of the dress code. Requiring boys but not girls to wear their hair above the collar, or permitting girls but not boys to wear earrings, might not place an unconstitutional burden on boys unless courts recognize governmental interference with personal autonomy as a burden. Those issues of gender-based appearance codes are left unresolved by the court’s decision.