Leland charter school defends sex-based dress code in US Court of Appeals

A Leland charter school appeared before a U.S. Court of Appeals panel Friday, maintaining that as a school run by a private entity, it is not a state actor and therefore cannot be held to the equal protection clause in the constitution.

Charter Day School is facing a lawsuit from families over its requirement that girls at the school wear skirts, skorts or jumpers, while boys are permitted to wear pants. Charter Day School and the Roger Bacon Academy is a non-profit organization, but is chartered by the state and receives funding from the government.

The 4th Circuit Court of Appeals ruled in August the dress code violates Title IX, which protects students from gender-based discrimination in public schools, because the school accepts federal funding.

However, the court said it could not make a comprehensive decision on whether or not the school should be considered a state actor in enforcing a dress code during that same hearing and overturned a district court ruling that found the school in violation of the equal protections clause of the 14th Amendment.

That ruling, a 2-1 vote, was appealed and brought before the 4th Circuit Court of Appeals Friday. The school maintained it is not a state actor in enforcing its dress code, but the plaintiffs, represented by the American Civil Liberties Union, disagreed because the school is a publicly funded and chartered entity.

Several judges asked throughout the hearing whether the school would still not be a state actor under other restrictions or requirements, such as not allowing students to wear a black armband in opposition to the Vietnam War or requiring students of color to sit in the back of the room. The defense maintained the school would still not be a state actor in those situations if the circumstances were the same as in the dress code issue, but rather a private entity contracted by the government to provide public education.

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“What we have is, again, a private corporation with a wholly private volunteer board and we have a contract and charter with the state to provide education to children whose parents are freely choosing to send the children to that school,” said Aaron Streett, an attorney representing the school.

Streett also said as a charter school, parents could choose to send their students to the school, unlike in traditional public schools. If a parent did not agree with the values the school held, they could choose a different school.

But Galen Sherwin, an attorney with the ACLU representing the plaintiffs, said because the school is contracted with the state and designated as a public charter school, it is subject to the constitution and civil rights laws preventing discrimination. She said because the school’s dress code distinguishes between male and female students, it is discriminatory on the basis of sex.

Some judges pointed to the fact that families have the choice to go to Charter Day School and could send their students elsewhere if they disagreed with the dress code, but Sherwin said despite that, students should not have to “forfeit their constitutional rights” when they choose to attend any particular publicly funded school.

In the defense’s rebuttal, several judges questioned what physiological difference girls possess that make it a necessity for them to wear skirts. Streett said the dress code requiring girls to wear skirts and boys to wear pants instills chivalry and discipline in the students.

“Males and females have legs, and the legs are exposed when the females wear skirts,” one judge said. “You would think having covered legs might do more to help instill discipline and order.”

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The lawsuit began in 2016 when three families challenged the schools dress code, saying the skirts were uncomfortable and made it difficult for girls to participate in some school activities, like playing at recess.

Girls are permitted to wear sweatpants on days they have gym class and can wear leggings underneath their skirts for warmth, but they are not permitted to wear pants like the boys. If a student violates the dress code, their parents may be contacted and could even be expelled from the school.

The dress code was put in place to instill chivalry and respect between men and women. It promotes that women are “a fragile vessel that men are supposed to take care of and honor,” said the school’s director Baker Mitchell, who was quoted in the lawsuit.

The court only heard oral arguments on the case Friday, and judges will now decide on whether to overturn the original 2-1 ruling. A date for the decision has not been announced.

Reporter Sydney Hoover can be reached at 910-343-2339 or shoover@gannett.com.

This article originally appeared on Wilmington StarNews: Leland Charter Day School dress code lawsuit continues in appeals