Federal Appeals Court ruling could offer long-term legal protection to NC charter schools

By Carolina Journal Staff

Raleigh, NC – A federal lawsuit challenging a North Carolina charter school’s dress code will head back to a trial court. That’s after a split Appeals Court panel reversed two key pieces of the original 2019 trial ruling.

Beyond this particular case, Peltier v. Charter Day School Inc., one part of the ruling could mean good news for all N.C. charter schools moving forward.

The case focuses on whether a charter school can force female students to wear skirts.

Source: Charter Day School web site

The 4th U.S. Circuit Court of Appeals panel ruled that Brunswick County-based Charter Day School’s dress code cannot face a challenge under the U.S. Constitution’s Equal Protection Clause. That’s a win for the charter school. It reverses the original trial court ruling in the case.

At the same time, the three-judge Appeals Court panel reversed the trial judge’s ruling blocking a legal claim based on Title IX in federal law. That’s a loss for the charter school. It means the case can continue. A trial judge must determine whether plaintiffs in the case can win relief under Title IX.

Three students — ages 5, 10, and 14 — challenged the dress code with legal help from the American Civil Liberties Union. They objected to a dress code that included punishment for female students who wore pants or shorts to school instead of skirts.

Writing for the majority, Judge Marvin Quattlebaum explained why the students could not pursue a Section 1983 civil rights claim. Section 1983 suits allow people to sue state government workers and those acting “under color of state law” for civil rights violations.

“The Constitution only reaches government conduct,” he wrote. Under a precedent case called Rendell-Baker “and in consideration of the state action doctrine, the skirt requirement is CDS’s conduct, not North Carolina’s. Because Section 1983 does not regulate private conduct, Plaintiffs cannot prevail on their equal protection claim.”

The case could have long-term implications for N.C. charter schools. “The Section 1983 portion of the decision is an important win for charter schools,” said Jeanette Doran, president and general counsel of the N.C Institute for Constitutional Law. “The decision delves into the nature of charter schools in North Carolina and focuses on their statutory and regulatory uniqueness to conclude Charter Day School was not what the law terms a ‘state actor’ when it created the skirts requirement in its dress code.”

Doran and NCICL filed a friend-of-the-court brief in the Peltier case with the Civitas Institute and former N.C. House Republican leader Paul “Skip” Stam.

“The federal appeals court determined that Charter Day School was not a state actor when promulgating the dress code and its skirts requirements and, thus, is not subject to an equal protection claim,” Doran added. “This is good news for charter school advocates. Although the Appeals Court focused on the creation of the dress code in the court’s analysis of whether Charter Day School was a state actor, its reasoning may be applicable to future cases in which charter school opponents try to sue a charter school under various constitutional theories.”

In this particular case, Quattlebaum explained the limits of ruling in favor of Charter Day School on the equal protection claim.

“[T]o be clear, our decision that [Charter Day School] is not a state actor in promulgating its dress code for purposes of a Section 1983 [civil rights] claim does not give it, or any other charter school operator, a license to discriminate,” he wrote. “While none are currently before us, several other mechanisms remain in place to prevent discrimination and to empower victims of discrimination to seek recourse.”

“North Carolina can ensure accountability through enforcement of its charter,” Quattlebaum added. “CDS’s charter, for example, requires compliance with civil rights laws, including applicable state and federal constitutional provisions. … In addition, federal civil rights statutes, like Title VI and Title IX, likely apply to most charter schools as recipients of federal funds.”

“Between accountability measures at the local level and robust civil rights laws, the lack of a federal Equal Protection Clause remedy does not enable a charter school to discriminate without consequence,” he added. “Plaintiffs can pursue their other claims and, if the facts support them, obtain the appropriate relief.”

Quattlebaum and Judge Allison Jones Rushing, both Trump appointees, made up the majority in the case. Judge Barbara Milano Keenan, an Obama appointee, dissented from part of the ruling.

“No, this is not 1821 or 1921. It’s 2021,” Keenan wrote. “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.”

“Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys,” Keenan added. “I therefore part company with my friends in the majority and would hold that the actions of Charter Day School (CDS), a public school created under North Carolina law and funded almost entirely by governmental sources, are actions of the state for purposes of Section 1983.

“Moreover, I would hold that CDS’ enforcement of the skirts requirement, with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of Equal Protection under the law.”

If either side in the case wants to appeal the ruling, the request would head to the U.S. Supreme Court.