Charter Day School (CDS) is a public charter school in North Carolina that enrolls students from kindergarten through eighth grade. Its founder, Baker A. Mitchell, Jr., incorporated CDS in 1999. Enrollment is open to all students eligible to attend North Carolina public schools. CDS receives the majority of its funding from federal, state, and local governments. After applying for its charter, CDS entered into a management agreement with Roger Bacon Academy, Inc. (RBA), a for-profit corporation founded by Mitchell. RBA is responsible for the day-to-day operations of CDS, including hiring school personnel. CDS maintains a bank account in which RBA is a signatory and from which RBA receives reimbursements for fees and operational expenses.
CDS emphasizes “traditional values,” which pervades many areas of the school’s practices. All students must wear a unisex polo shirt and closed toe shoes, “radical” haircuts and colors are banned, and boys are prohibited from wearing jewelry. CDS requires female students to wear skirts to school. A mother of a female kindergarten student at CDS objected to this requirement. Mitchell’s response was that this requirement is based on the view that girls are “fragile vessels” deserving of “gentle” treatment by boys. Failure to comply with the dress code requirements could result in disciplinary action, including expulsion.
The mother and two other CDS parents and guardians sued CDS and RBA, alleging violations of the Equal Protection Clause and Title IX. The plaintiffs submitted evidence on the harms they suffered as a result of the skirts requirement. One plaintiff testified that the skirt requirement conveys that girls are not as good as boys. The plaintiffs also described how wearing skirts impedes their ability to participate in school activities, like climbing, using swings, and playing soccer. The plaintiffs also testified that they cannot participate comfortably in school emergency drills that require students to crawl and kneel on the floor, fearing that boys would look up their skirts.
The trial court held that CDS was a state actor and that the skirts requirement violates the Equal Protection Clause of the U.S. Constitution. However, the trial court held that RBA was not a state actor because it did not have a sufficiently close tie to the state to qualify as a state actor. On the Title IX claim, however, the trial court held that dress codes are categorically exempt from Title IX’s prohibition against gender discrimination. The court reasoned that when the U.S. Department of Education rescinded a prior regulation governing dress codes, the Department had reasonably concluded that Congress did not intend for such policies to be subject to Title IX. The case was appealed to the Fourth Circuit Court of Appeals.
The Fourth Circuit held that CDS was a state actor for purposes of the Equal Protection claim. A private actor can engage in state action when there is a “sufficiently close nexus” between the actor’s challenged action and the state so that the challenged action may be fairly treated as that of the state. Here, North Carolina charter schools receive per-pupil funding from the state and receives 95% of its funding directly from public sources. Additionally, the state of North Carolina is required to provide free elementary and secondary education to the state’s residents, and the state has delegated this obligation to charters schools by virtue of their charter with the state.
However, the Fourth Circuit held that RBA was not a state actor for purposes of the Equal Protection claim. RBA, a for-profit management company, has no direct relationship with the state and is not a party to the charter agreement between CDS and North Carolina. Accordingly, RBA’s actions are not “fairly attributable” to the state.
As to the merits of the Equal Protection claim, the Fourth Circuit held that the skirts requirement blatantly perpetuates harmful gender stereotypes. CDS imposed the requirements with the express purpose of conveying to children that girls are “fragile,” require protection from boys, and warrant different treatment from male students – which are stereotypes that have adverse consequences to girls.
The Fourth Circuit also held that RBA was subject to Title IX because it is a recipient of federal funds through its intermediary, CDS. The Court remanded the case back to the trial court because it failed to consider whether the plaintiffs were treated worse than similar situated male students.
Peltier v. Charter Day Sch., Inc. (4th Cir. June 14, 2022) __ F.4th__ [2022 WL 2128579].
Note:
Title IX applies to schools, universities, and colleges that accept federal financial assistance whether they are public or private institutions. This case is an important reminder that accepting state or federal funds may require private schools to comply with, and may create liability under, state and federal laws that these schools may not otherwise be subject to. Here, RBS was subject to Title IX because it managed the charter school’s day-to-day operations.
