Thursday, September 23, 2021

Charters not subject to equal protection


A three-judge panel for the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, remanded a case in which a federal district court in North Carolina ruled that a charter school’s dress code, which required girls to wear skirts, violated the girls’ rights under the Equal Protection Clause of the 14th Amendment, the Associated Press reports.

In the original case, supported by the American Civil Liberties Union, a few girls had sued Charter Day School in Leland, North Carolina, which is one of a few charters run by the Roger Bacon Academy. Their claim was that the dress code created a situation where girls were not free to learn because they had to pay constant attention to the position of their legs in order to avoid exposing their undergarments and being subjected to teasing from boys.

“All I wanted was for my daughter and every other girl at school to have the option to wear pants so she could play outside, sit comfortably, and stay warm in the winter,” one girl’s parent said in a statement provided by the ACLU. “But it’s disappointing that it took a court order to force the school to accept the simple fact that, in 2019, girls should have the choice to wear pants.”

The school asserted that skirts for girls helped to establish a more traditional and respectful environment. The school focuses on a classical curriculum, but the trial judge at the district level found no evidence that skirts had any connection to higher test scores or any mission focused on public schooling.

US District Judge Malcolm Howard, in 2019, held that charter schools, as state actors, could not treat girls differently from boys in its dress code policy: this violated the Equal Protection Clause of the 14th Amendment, he ruled.

In his ruling, he conceded that charters weren’t required to follow all the rules of traditional public schools. They still shouldn’t violate the 14th Amendment, though.

But the Fourth Circuit overturned that particular application of the 14th Amendment: charters are not “state actors,” it ruled. And if they aren’t truly public schools, they don’t have to honor the 14th Amendment, which doesn’t technically ban private people or groups from treating boys and girls differently—or, for that matter, members of one race differently from those of another.

Charter Day School dropped the skirt requirement following the district court’s ruling. They’ll have to wait for the outcome of the retrial before they can reinstate it.

So the case has been sent back to the lower court for further proceedings to determine whether the dress code is a violation of Title IX, which states that boys and girls must have an equal opportunity to participate in school programs.

But the Fourth Circuit’s ruling, effectively, declares that charter schools are not public schools, at least in terms of the requirement that they honor the 14th Amendment.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.


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