A federal appeals court ruled last week that a charter school in North Carolina could not require girls to wear skirts in compliance with the school’s dress code.

By a 10-6 vote, the Fourth Circuit Court of Appeals ruled that the Charter Day School in Brunswick County, North Carolina, which is state-sponsored, had violated the equal protection rights of three female students, whose mothers or guardians brought the suit.

The ruling, while ostensibly about skirts and dress codes, portends grave danger to the future of charter schools and the concept of independent, publicly funded schools set up as alternatives to the failing public school system; these schools have been a bête noire of the Left since their inception 30 years ago, as evinced by the lengthy roster of amici briefs submitted by progressive organizations in support of the plaintiffs.

The case has trod a tortuous path through the courts. A district court ruled in 2019 for the plaintiffs, finding that the skirt requirement violated the Equal Protection Clause. However, on appeal, a three-judge panel of the appeals court overruled the district court last November, allowing the policy to remain. Judge A. Marvin Quattlebaum Jr., writing for the majority, upheld the school’s claim that it wasn’t a “state actor,” thus preventing the 14th Amendment from applying. Last week, the full appeals court overturned that ruling by a 10-6 tally.

Charter Day School emphasizes old-time values, including a “traditional curriculum, traditional manners and traditional respect.” The school offers a classical curriculum, which focuses on literature, history, and Latin, and is run, according to one school board member, “more like schools were 50 years ago.” Students must use polite forms of address, such as “Ma’am” and “Sir.” As part of this approach, the school requires a dress code to “instill discipline and keep order” among the students. All students must wear a unisex polo shirt and closed-toe shoes. “Excessive or radical haircuts and colors” are verboten, as is jewelry for boys. Boys must wear shorts or pants, while girls are required to wear a skirt, jumper, or skort (a skirt with inbuilt shorts).

The parents or guardians of three female Charter Day School students objected to the skirt requirement, complaining that, because of it, girls avoided physical activity, including playing soccer or climbing on the playground equipment. They also maintained that it was a sex-based classification that discriminated against their daughters based on their gender. One plaintiff contended that the skirt requirement conveyed the school’s view that girls “simply weren’t worth as much as boys” and were not in fact “equal to boys.” Another said that the requirement “sends the message that girls should be less active than boys and that they are more delicate than boys,” and as a result, boys “feel empowered” and “in a position of power over girls.”

Prominent in the appeals court ruling, and headlining subsequent news coverage of the decision, is the justification for the skirts requirement offered by the school’s principal when first approached by plaintiff Bonnie Peltier in 2015. In defending the skirts requirement, the founder of the school, Baker A. Mitchell Jr., said the requirement was imposed, in part, “to preserve the chivalry and respect among young women and men in this school of choice.” Boys were to hold open doors for girls and carry an umbrella for them. Mitchell later unpacked chivalry as “a code of conduct where women are … regarded as a fragile vessel that men are supposed to take care of and honor.” In implementing the requirement, Charter Day School sought to treat girls “courteously and more gently than boys.”

In her majority opinion, Senior Circuit Judge Barbara Milano Keenan lashed out at this notion: “It is difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes,” she wrote. The skirts requirement “blatantly perpetuates harmful gender stereotypes” and was imposed “with the express purpose of telegraphing to children that girls are ‘fragile,’ require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls.”

In his dissent, Quattlebaum, joined in part by five appeals court judges, cut to the chase: “The question is not whether we like or don’t like Charter Day School’s requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question — is Charter Day School a state actor? It’s a question of our legal judgment, not our will.” If the school is not a state actor, the equal protection statute “cannot be used to prevent it from requiring female students to wear skirts, skorts or jumpers as part of its dress code.” If the school is a state actor, the law prevails.

He clearly thinks the former is the case:

Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under [the equal protection clause]. The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues. The immediate casualty of the majority’s decision is a small part of a dress code at a particular charter school. That is the least of my concerns. My worry is that the majority’s reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.

And, lest it perish without a contrary word, in a second dissent, Judge J. Harvie Wilkinson III, joined by two other judges, rides to the defense of chivalry. “Student dress codes in particular are unsettling to those who believe, as plaintiffs do here, that they connote feminine inferiority,” he writes. While respecting the view espoused by Keenan, Wilkinson writes, “To a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them. Far from being a pejorative term, chivalry is symbolic of the tone that CDS wishes to set.” The 10-judge majority defined the age of chivalry as a brutal time, but Wilkinson countered: “CDS uses chivalry in an aspirational sense, not to recreate an earlier time in all of its particulars, but to capture the contemporary connotations of a chivalric order as one in which women are due from the very inception of schooling the greatest measure of respect.”

Whatever is chivalry’s fate, the fate of this charter school dress code, and possibly of charter schools altogether, will likely end up in the hands of the Supreme Court.