“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fourth Circuit judge Marvin Quattlebaum, joined by Trump judge Allison Rushing, reversed a district court and ruled that a pubic charter school cannot be sued under the constitution for requiring female students to wear skirts and not pants or shorts. The ruling could also allow other unconstitutional conduct by charter schools. The August 2021 decision is Peltier v Charter Day School
Charter Day School (CDS) is a public charter school in North Carolina. Although operated by a corporation, CDS does not charge tuition, receives virtually all its funding from the state, and is considered a “public school” subject to state charter school rules under state law.
As part of its effort to promote “traditional values,” CDS has adopted a dress code which, among other things, prohibits female students from wearing “pants or shorts.” Instead, “girls must wear skirts, jumpers or skorts” except to gym class and on some field trips. The school refused to change its policy, and several parents sued on behalf of their daughters, contending that the skirt requirement, which can be enforced through disciplinary action, violates the constitution’s equal protection clause and Title IX of the Education Amendments Act of 1972, which prohibits gender discrimination in education programs that receive federal financial assistance. After extensive discovery, a district court ruled in favor of the students on the equal protection claim, although it decided that Title IX did not apply to dress codes.
On appeal to the Fourth Circuit, all three members of a three-judge panel reversed the court on Title IX and sent the case back to allow the students to go forward with that claim. At the same time, however, Trump judge Quattlebaum wrote a 2-1 decision joined by Rushing that reversed the equal protection ruling and held that a charter school like CDS cannot be sued at all under the equal protection clause.
Specifically, it has long been recognized that the constitution’s equal protection clause applies only to state action or activity undertaken “under color of state law,” not to purely private conduct. Quattlebaum maintained that charter schools like CDS are only “nominally public schools,” and should be treated like the private school in the Supreme Court’s Rendell-Baker decision. In that case, he maintained, the Court considered whether a private school that “functioned almost exclusively as a government contractor” in educating special needs students referred to it by public schools should be considered as operating under color of state law when it fired certain employees. The Court said no, even though the government paid the tuition of the students it referred and the school was subject to some government regulations. Accordingly, Quattlebaum concluded, the “nominally public” CDS was not acting under color of law when it enacted and enforced the discriminatory dress code.
Quattlebaum claimed that his decision does not give charter schools like CDS a “license to discriminate,” because of other federal or state laws that may apply. But it is clear that his ruling does grant charter schools immunity from claims that they have violated the Constitution by discriminating against students on gender, race, or other grounds.
Judge Barbara Keenan strongly dissented. She pointed out that the decision authorizes requiring “girls at certain public schools” to wear skirts in order to “comply with the outmoded and illogical viewpoint” that promoting “courteous behavior” mandates that “girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys.”
Keenan explained that the majority’s “under color of state law” analysis “jumps off the rails” by relying on Rendell-Baker. The school in that case was truly private, she continued, with a relationship to the state like a “government contractor” that “builds bridges and dams”, operating with its own private employees and getting tuition reimbursement from the government. In contrast, she went on, the state “unambiguously created charter schools” like CDS as “public schools” and “public entities,” which receive permission to operate and direct per-pupil funding from the state, help carry out the state’s obligation to educate students, and have employees designated as “public employees.” CDS’ “implementation of the skirts requirement,” she concluded, was thus clearly undertaken under color of state law and is “fairly attributable” to the state.
Judge Keenan went on to explain the basis for affirming the district court’s holding that “the skirts requirement plainly violates” the equal protection clause. The record below showed that CDS’ justifications for the policy, she said, “rest on nothing more than conventional notions about the proper station in society for males and females” and “archaic and stereotypic notions.” The record was “replete with evidence of the harm caused,” she continued, such as “inability to engage fully in school activities” plus “increased incidences of eating disorders, depression, anxiety, low self-esteem, and risky sexual behaviors.”
Fortunately, the unanimous decision to allow proceedings under Title IX to continue will hopefully provide some relief to the female students in this case. But the ruling by Trump judges Quattlebaum and Rushing that there is no constitutional claim against charter schools like CDS at all for unconstitutional conduct, including sex and race discrimination, threatens to be very harmful. The case underlines the importance, as part of our fight for our courts, of the Senate confirming fair-minded constitutionalists nominated by President Biden to the Fourth Circuit and other federal courts, as expeditiously as possible.