Fourth Circuit Says Public Charter School Not a State Actor for Dress Policy

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fourth Circuit ruled that a public charter school isn't a state actor for purposes of its dress policy, and dismissed an equal protection challenge to that policy. At the same time, the court ruled that Title IX covers the policy, and remanded the case for further consideration on that statutory ground.

The case, Peltier v. Charter Day School, tests CDS's policy that requires girls to wear skirts or skorts. CDS's stated reasons for the policy are baldly based on romantic paternalism and outdated ideas about sex-based differences; and the plaintiffs provided plenty of evidence that the policy harmed girls. Still, the court ruled that the plaintiffs couldn't assert an equal protection claim under Section 1983, because CDS isn't a state actor.

The court ruled that despite North Carolina's charter, designation, and funding of CDS as a "public" school, functional considerations made CDS a non-state-actor for the purpose of its dress policy.

Functionally, North Carolina's charter school statutory scheme disentangles the state from the day-to-day operations of CDS, and in particular CDS's promulgation of a dress code. The statutory scheme clearly reflects a "legislative policy choice" to contract with privately operated schools to provide a hands-off approach by the state, enabling pedagogical experimentation and school choice. Likewise, the fact that CDS is directly publicly funded, rather than reimbursed for tuition it charges by the state, is a formal distinction. . . . That charter schools cannot charge tuition in North Carolina merely reflects the legislative designation of the schools as public, and thus open equally, in theory, to all. It does not functionally change the relationship between CDS and the state.

The court went on to say that its ruling is limited to CDS's dress policy, suggesting that CDS may be a state actor for other purposes, and that its ruling doesn't license CDS to discriminate (because there are numerous other anti-discrimination requirements that apply to it). Moreover, it said that CDS's justification wouldn't have satisfied equal protection standards if CDS were a state actor.

The court also ruled that Title IX applied to the dress policy, notwithstanding a 1982 Department of Education move to revoke a previous regulation that applied Title IX to "any rules of appearance." The court applied Chevron and concluded that nothing in Title IX prevented its application to dress policies.

Judge Kennan dissented on the state-actor portion of the ruling. "I therefore part company with my friends in the majority and would hold that actions of [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."