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Fourth Circuit Holds Charter School Dress Code Violates Title IX

Charter Day is an elementary and middle school advancing “traditional curriculum, traditional manners, and traditional respect.” The North Carolina school implemented a dress code to “instill discipline and keep order.” Students must wear white or navy blue tops and khaki or blue bottoms. The code precludes boys from wearing jewelry and requires their hair to be “neatly trimmed.” The code requires girls to wear skirts, jumpers, or skorts. For gym class, female students may wear shorts or sweatpants. Three female students challenged the skirt requirement as unlawful under Title IX.

During depositions, the female students spoke to their discomfort in wearing skirts during recess and how they had to worry about keeping their legs together. These students also testified to the power dynamic at play in these clothes, stating it conveyed the message that “girls should be less active than boys and that they are more delicate than boys. This translates into boys being put in a position of power over girls.” In their testimony, school representatives asserted skirts reflect the difference between boys and girls and encourages “the proper treatment of young ladies.”

The Fourth Circuit Court of Appeals evaluated the application of Title IX to the dress code. The court found the statute “broadly prohibits sex-based discrimination in schools that receive federal funding.” The statute identifies exceptions to the broad term but does not include dress codes within that list. Determining whether a violation of Title IX has occurred requires an “individualized analysis.” The court pointed out that the statute is focused on “individual harm, not group inequality.” The female students alleged the dress code “excluded them from participation,” “denied them the benefits” of an education program, and “subjected them to discrimination,” the three possible prongs of a Title IX claim. The court stated that the female students’ lawsuit reflected the clear application of the first two prongs. The appellate court instructed the lower court to assess objective harm as to the third prong. The case will return to the district court for further proceedings.