By Leah Reynolds, M.S., Ed.D. | Consultant, TNG
Question Presented to the Court:
Can a public (charter) school’s imposition of a gendered dress code violate Title IX? According to the Fourth Circuit Court of Appeals, the answer is yes.
Summary of facts:
Charter Day School in North Carolina has dress code requirements specific to boys and girls. According to the dress code, all students must wear white or navy blue tops and khaki or blue bottoms. Girls are required to wear either skirts, jumpers, or skorts. Girls may only wear gym shorts or sweatpants on days they have physical education class, or on some special occasions, like field trips. Boys may wear pants or shorts but are required to wear a belt. The school’s rationale for imposing different standards was to distinguish between girls and boys and to promote the “proper treatment” of girls.
Bonnie Peltier, a parent of a kindergartner at the School, along with the parents of two additional students, filed suit against the school alleging a violation of Title IX.[1] The district court originally granted summary judgment to Charter Day School on the Title IX claim, deciding that Title IX did not apply to sex-specific school dress codes. The Fourth Circuit reversed that decision, ruling that Title IX does in fact cover sex-specific school dress codes and returned the case to the lower court for reconsideration.
Analysis:
In determining whether Title IX’s prohibitions apply to school dress codes, the Court began its analysis with the plain language of the Title IX statute, which says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”
The Court interpreted the statute’s text to apply to any instances, not just specific circumstances, where sex is the “but for” cause of a student’s exclusion from participation in or denial of the benefits of a federally funded educational program. Title IX’s sweeping prohibitions are hollowed by a handful of exceptions. Dress codes are not listed among those exceptions. Therefore, the court decided that there is no ambiguity in the interpretation of Title IX, and dress codes are not excluded from Title IX protections.
The court also discussed how Charter Day School, a recipient of federal funding, and RBA, the operator of Charter Day School, are both considered recipients of federal funding because RBA receives its funding from Charter Day School’s federal funding. Therefore, RBA is an indirect recipient and both entities are required to comply with Title IX.
Key to the Court’s ruling was the keen observation that while courts should be deferential to agency rulemaking, they need not be deferential to rules that agencies have withdrawn, as withdrawals are not statements of policy like rules are. While OCR once had a regulation prohibiting disparate dress standards, and withdrew that rule in the 1980s, the withdrawal did not remove dress codes from Title IX’s equity requirements because of the plain language of the statute. If the statute prohibits discrimination generally, OCR’s regulations don’t also have to do so specifically.
Takeaways:
- Schools should pay careful attention when implementing sex specific dress codes, as courts may find a violation of Title IX, especially when those codes are based on chivalry, modesty, and other antiquated notions of propriety for girls that are not similarly applied to boys. Somehow, the school decided that pleading a sexist set of beliefs rooted in chivalry was a logical defense to a lawsuit alleging that its policies that were sexist.
- The girls in this case specifically pled restrictions based on the dress code that inhibited their educational access. If that concern is raised to your Title IX office, pay attention to it. They asserted that they were allowed to wear leggings when it was cold (under the skirt or skort), but not pants, which were warmer. Why should girls be forced to dress in ways that don’t keep them as warm as boys? How could a school justify allowing leggings but not pants? Good luck with that argument on remand. How chivalrous is it to lets girls freeze?
- Consult legal counsel if considering implementing a sex-specific dress code as more harm than good may be done if careful consideration is not given to this decision.
- Whether an organization is a direct recipient or an indirect recipient of federal funding, Title IX can still apply.
Contact us at inquiry@tngconsulting.com to learn more about how ATIXA and TNG can support your organization with policy review and more.
[1] The suit in its entirety alleged violations of both Title IX and the Equal Protection Clause.