In , 10 of the 16 judges on the U.S. Court of Appeals for the 4th Circuit ruled that Charter Day School in Leland, North Carolina — just like any other public school — was acting on behalf of the state when it adopted a dress code requiring girls to wear skirts, and, therefore, violated their constitutional rights. 

The school’s board in Peltier v. Charter Day School Inc., maintained that because it’s a nonprofit organization, it should have flexibility over its educational approach, which includes strict expectations on student behavior and appearance.

“Were we to adopt [Charter Day School’s] position, North Carolina could outsource its educational obligation to charter school operators, and later ignore blatant, unconstitutional discrimination committed by those schools,” wrote Judge Barbara Milano Keenan, an Obama appointee. “We need look no further than the shameful history of state-sponsored racial discrimination in this country to reject an application of the Equal Protection Clause that would allow North Carolina to abdicate its duty to treat public schoolchildren equally.”

The case is the first time a federal appeals court has considered whether charter school students deserve the same constitutional rights as their peers in traditional schools. The American Civil Liberties Union sued the school on behalf of three families who argued the skirt rule was discriminatory. But the school’s argument threw the status of charters into question. Charter advocates and authorizers argued that their existence as public schools was never a matter of debate, while some school choice supporters suggested they operate more like private schools and could even be run by religious organizations.

Derek Black, a law professor at the University of South Carolina, said the ruling should come as no surprise because states created charters to be part of the public education system. 

“The court held that the Constitution applies to schools that operate under the state’s name and with the public’s money,” he said. “Yet, this obvious point has escaped several other courts. Hopefully, this case will go a long way in setting an example for others.”

In a joint statement, Nina Rees, president and CEO of the National Alliance for Public Charter Schools — which filed a brief in support of the plaintiffs — and Rhonda Dillingham, executive director of the North Carolina Association for Public Charter Schools, said the ruling gives charter schools clarity over their status and obligations to protect students’ civil rights.

“The North Carolina charter statute not only compels this outcome but the statute mirrors the substantive provisions in charter statutes around the country,” they said, adding that the “decision crosses state lines — inside and beyond the 4th Circuit.” 

Judge Keenan wrote that charter schools are not merely alternative models like private schools or homeschooling, and putting them in the same category “ignores both the ‘free, universal’ nature of this education and the statutory framework chosen by North Carolina in establishing this type of public school.”

But in the minority’s dissent, Judge A. Marvin Quattlebaum Jr., a Trump appointee, said the majority “breaks new ground” and ignores Supreme Court precedent. 

Quattlebaum’s earlier opinion — which the new ruling overturns — leaned on a 1982 case, , in which the Supreme Court ruled that a private school receiving state funds for educating “maladjusted” high school students was not acting under the “color of state law” when it fired a counselor and five teachers. 

The implications of Tuesday’s opinion go far beyond whether a charter school can require girls to wear skirts, he wrote in his dissent Tuesday.

“The majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state,” he wrote.

Aaron Streett, an attorney representing the nonprofit organization that founded the school and its board members, said the decision restricts parents’ ability to choose the kind of education they want for their children.

“[Charter Day School] will continue to provide an excellent education to its students,” he said, “even as it evaluates the next steps in challenging this mistaken and harmful ruling.”

Students had to address adults with “sir” or “ma’am,” couldn’t have “radical” hairstyles and girls were required to wear jumpers, skirts or skorts — skirts with shorts attached underneath. The requirements were meant to promote respect and chivalry, but according to a lawsuit filed by the ACLU on behalf of three families at the school, the skirt rule invited teasing from boys and reprimands from teachers when the girls’ underwear or shorts would show.

The girls and their parents argue the dress code is discriminatory and that students at charters should have the same constitutional rights as their peers attending traditional schools. The issue before the full 4th Circuit Court of Appeals, which will hear oral arguments Dec. 10, is whether charters can operate with a degree of flexibility more akin to private schools — freedom that some say could put the rights of charter school students at risk. Some observers argue a decision in favor of the school could also pave the way for religious organizations to run charters.

The plaintiffs in asked for the “en banc” hearing after a three-judge panel ruled 2 to 1 in August that the school was not a “state actor” when it created its uniform policy.  Since 2019, when a U.S. District Court the school has allowed girls to wear pants or shorts, pending the outcome of the appeal. The rules on student hairstyles and addressing adults remain unchanged.

This is the first time an appellate court has considered whether a student can sue a charter school under the federal equal protection clause. Past cases that hinge on the state actor issue have focused on employee-related disputes. Since Minnesota passed the first charter school law in 1991, lower courts have widely held that charters are public schools and students have the same civil rights protections as their peers in traditional schools. Charter school advocates say state laws already make this clear.

“Every state charter statute recognizes charter schools as part of the state’s public education ecosystem,” said Nina Rees, president and CEO of the National Alliance for Public Charter Schools, which submitted to the court. If the current ruling stands, she added, “it would be in conflict with the clear intent of state statutes and set a legal precedent that could call into question the public status of charter schools in other states.”

Last month, the Department of Justice’s Civil Rights Division , noting the fact Charter Day School sees its dress code as an essential part of its educational model demonstrates the tight connection between the school and the state.

Defendants in the case — the nonprofit organization that founded the school and its board members — say the plaintiffs’ argument undermines the reason charter schools were created.

“The purpose of charter schools was to differentiate them from traditional public schools and to remove them in important respects from state oversight,” said Aaron Streett, an attorney representing the defendants. They’re looking to a past , in which the court ruled a charter school was not a state actor, to support their argument.

The claim that students’ rights were violated, he said, is a “red herring” because charter schools agree to uphold students’ constitutional rights when they receive a charter.

The students complained of being cold in the winter and having to sit uncomfortably, “like a lady,” with their legs to the side on the floor, according to court documents. They stopped doing flips and cartwheels at recess to keep from exposing the shorts under their skirts. 

Such claims, however, are evidence that girls were treated differently than boys, not unfairly burdened by the uniform policy, according to the defendants.

Not forced to attend 

If the ruling by the initial 4th Circuit panel — which included two Trump appointees — stands, it could strengthen the position that faith-based organizations should be able to open charter schools.

“If they are private schools, then I would argue that they can be religious,” said Nicole Stelle Garnett, a law professor at the University of Notre Dame.

The outcome of another federal lawsuit, scheduled for oral arguments before the Supreme Court Wednesday, could also back up that argument. In , plaintiffs argue that religious schools should be able to participate in school choice programs even if they teach religion.  

Preston Green, an education professor at the University of Connecticut, said a Supreme Court opinion in favor of the plaintiffs in Carson would strengthen the case for religious charters.

Defense attorney Streett, however, said that debates over whether an entity is a state actor are case-specific and don’t suggest that the organization in question is “wholly in the public sphere or wholly in the private sphere.” He rejected the possibility of religious charter schools because nonprofits would then be violating the terms of their charter. 

In his majority 4th circuit opinion in Peltier, Judge A. Marvin Quattlebaum Jr. noted that students weren’t forced to attend Charter Day School — and still had the option of attending a traditional public school.

Noting charter schools’ “wide latitude to experiment with pedagogical methods,” Quattlebaum wrote that they are not “state actors” and therefore not governed by the First Amendment’s guarantee of equal protection. The school’s skirt requirement, therefore, was not “fairly  attributable” to the state, he wrote. Judge Allison Jones Rushing agreed. 

Quattlebaum’s opinion leaned heavily on , a 1982 case in which the U.S. Supreme Court ruled a private school that received state funds for educating “maladjusted” high school students was not acting under the “color of state law” when it fired a counselor and five teachers. 

States could ‘remove all doubt’

That’s where Quattlebaum’s argument “jumps off the rails,” Judge Barbara Milano Keenan, an Obama appointee, wrote in her dissent. Rendell-Baker, she said, focuses on a private school, while Charter Day School is a “public school created under North Carolina law and funded almost entirely by governmental sources.”

She added that the school’s skirt rule, “with its many attendant harms to girls, denies these girls at this public school their constitutional guarantee of equal protection under the law.” 

Green, at the University of Connecticut, said there’s more at stake than the rights of students attending charter schools, which have continued to experience growth through the pandemic. If charters are not state actors, it would be easier for them to exclude some students, he said. 

Even though the charter alliance argues the laws are already clear, Green added that states could “remove all doubt” by adding language that charter schools can’t discriminate against students based on their sex, gender, race, disability or religious preference. They could take steps to reinforce charters’ status as public schools, perhaps by having elected boards, or by strengthening oversight, he added. 

But Streett said if charters don’t fulfill their obligations, accountability is already built into state laws. “Revoking the charter,” he said, “is one way the state can deal with this.”