Peltier v. Charter Day Sch., Inc.

8 F.4th 251

Bonnie PELTIER, as Guardian of A.P., a minor child; Erika Booth, as Guardian of I.B., a minor child; Keely Burks, Plaintiffs – Appellees,

v.CHARTER DAY SCHOOL, INC.; Robert P. Spencer, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Chad Adams, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Suzanne West, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Colleen Combs, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Ted Bodenschatz, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Melissa Gott, in her capacity as member of the Board of Trustees of Charter Day School, Inc., Defendants – Appellants,andThe Roger Bacon Academy, Inc., Defendant.

North Carolina Institute for Constitutional Law ; Civitas Institute, Inc.; Paul B. Stam, Jr., Amici Supporting Appellant.

National Women's Law Center; A Better Balance; American Association of University Women ; American Federation of State, County, and Municipal Employees ; American Federation of Teachers ; Anti-Defamation League ; Autistic Self Advocacy Network; Bold Futures; California Women Lawyers; Clearinghouse on Women's Issues; Coalition of Labor Union Women; Desiree Alliance; Disability Rights Advocates; Disability Rights Education & Defense Fund ; End Rape on Campus ; Equality California; Feminist Majority Foundation; Forge, Incorporated; Gender Justice ; Girls for Gender Equity; Girls Inc. ; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; Kentucky Association of Sexual Assault Programs ; KWH Law Center for Social Justice and Change; Legal Aid at Work; Legal Momentum; Legal Voice; National Association of Social Workers ; National Association of Women Lawyers; National Center for Transgender Equality ; National Council of Jewish Women; National Crittenton; National Network to End Domestic Violence ; National Organization for Women Foundation ; National Partnership for Women & Families; National Women's Political Caucus; Oklahoma Call for Reproductive Justice; Partnership for Working Families; Religious Coalition for Reproductive Choice; Shriver Center on Poverty Law; SisterReach; Southern Poverty Law Center; Stop Sexual Assault in Schools; The Afiya Center; The Women's Law Center of Maryland ; Transgender Law Center; Washington Lawyers’ Committee for Civil Rights and Urban Affairs; Women Lawyers On Guard Inc.; Women With a Vision, Inc.; Women's Bar Association of the District of Columbia; Women's Bar Association of the State of New York; Women's Institute for Freedom of the Press; Women's Law Project; Women's Media Center; Women's Rights and Empowerment Network ; Women's All Points Bulletin; National Education Association ; North Carolina Association of Educators; The Society for Research in Child Development; The Society for the Psychological Study of Social Issues; The Cognitive Development Society; The Society for Research on Adolescence; Professor Ruthann Robson, Amici Supporting Appellee.

Bonnie Peltier, as Guardian of A.P., a minor child; Erika Booth, as Guardian of I.B., a minor child; Keely Burks, Plaintiffs – Appellants,

v.Charter Day School, Inc.; Robert P. Spencer, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Chad Adams, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Suzanne West, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Colleen Combs, in her capacity as member of the Board of Trustees of Charter Day School, Inc.; Ted Bodenschatz, in his capacity as member of the Board of Trustees of Charter Day School, Inc.; Melissa Gott, in her capacity as member of the Board of Trustees of Charter Day School, Inc., Defendants – Appellees,andThe Roger Bacon Academy, Inc., Defendant.

National Women's Law Center; A Better Balance; American Association of University Women ; American Federation of State, County, and Municipal Employees ; American Federation of Teachers ; Anti-Defamation League ; Autistic Self Advocacy Network; Bold Futures; California Women Lawyers; Clearinghouse on Women's Issues; Coalition of Labor Union Women; Desiree Alliance; Disability Rights Advocates; Disability Rights Education & Defense Fund ; End Rape on Campus ; Equality California; Feminist Majority Foundation; Forge, Incorporated; Gender Justice ; Girls for Gender Equity; Girls Inc. ; GLBTQ Legal Advocates & Defenders; Human Rights Campaign; Kentucky Association of Sexual Assault Programs ; KWH Law Center for Social Justice and Change; Legal Aid at Work; Legal Momentum; Legal Voice; National Association of Social Workers ; National Association of Women Lawyers; National Center for Transgender Equality ; National Council of Jewish Women; National Crittenton; National Network to End Domestic Violence ; National Organization for Women Foundation ; National Partnership for Women & Families; National Women's Political Caucus; Oklahoma Call for Reproductive Justice; Partnership for Working Families; Religious Coalition for Reproductive Choice; Shriver Center on Poverty Law; SisterReach; Southern Poverty Law Center; Stop Sexual Assault in Schools; The Afiya Center; The Women's Law Center of Maryland ; Transgender Law Center; Washington Lawyers’ Committee for Civil Rights and Urban Affairs; Women Lawyers On Guard Inc.; Women With a Vision, Inc.; Women's Bar Association of the District of Columbia; Women's Bar Association of the State of New York; Women's Institute for Freedom of the Press; Women's Law Project; Women's Media Center; Women's Rights and Empowerment Network ; Women's All Points Bulletin; National Education Association ; North Carolina Association of Educators; The Society for Research in Child Development; The Society for the Psychological Study of Social Issues; The Cognitive Development Society; The Society for Research on Adolescence; Professor Ruthann Robson, Amici Supporting Appellants.

North Carolina Institute for Constitutional Law ; Civitas Institute, Inc.; Paul B. Stam, Jr., Amici Supporting Appellees.

No. 20-1001

No. 20-1023

United States Court of Appeals, Fourth Circuit.

Argued: March 11, 2021

Decided: August 9, 2021

ARGUED: Aaron Michael Streett, BAKER BOTTS L.L.P., Houston, Texas, for Appellants/Cross-Appellees. Galen Leigh Sherwin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Appellees/Cross-Appellants. ON BRIEF: J. Mark Little, Travis L. Gray, BAKER BOTTS L.L.P., Houston, Texas, for Appellants/Cross-Appellees. Ria Tabacco Mar, Jennesa Calvo-Friedman, Louise Melling, Amy Lynn Katz, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Irena Como, ACLU OF NORTH CAROLINA LEGAL FOUNDATION, Raleigh, North Carolina; Jonathan D. Sasser, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellees/Cross-Appellants. Jeanette K. Doran, NORTH CAROLINA INSTITUTE FOR CONSTITUTIONAL LAW, Raleigh, North Carolina, for Amicus North Carolina Institute for Constitutional Law. Paul B. Stam, Jr., R. Daniel Gibson, STAM LAW FIRM, PLLC, Apex, North Carolina, for Amici The Civitas Institute, Inc. and Paul B. Stam, Jr. Brian R. Matsui, Aaron D. Rauh, MORRISON & FOERSTER LLP, Washington, D.C., for Amici Society for Research in Child Development, Society for the Psychological Study of Social Issues, Cognitive Development Society, and Society for Research on Adolescence. Alice O'Brien, Eric A. Harrington, Rebecca Yates, NATIONAL EDUCATION ASSOCIATION, Washington, D.C.; Verlyn Chesson-Porte, NORTH CAROLINA ASSOCIATION OF EDUCATORS, Raleigh, North Carolina, for Amici The National Education Association and North Carolina Association of Educators. Emily Martin, Neena Chaudhry, Sunu Chandy, Adaku Onyeka-Crawford, NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Courtney M. Dankworth, DEBEVOISE & PLIMPTON LLP, New York, New York, for Amici National Women's Law Center and Coalition of Civil Rights and Public Interest Organizations. Jayme Jonat, Nina Kanovitch Schiffer, HOLWELL SHUSTER & GOLDBERG LLP, New York, New York, for Amicus Professor Ruthann Robson.

Before KEENAN, QUATTLEBAUM, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Rushing joined. Judge Keenan wrote an opinion, concurring in part and dissenting in part.

QUATTLEBAUM, Circuit Judge:

This case involves a charter school's dress code. The dress code includes certain requirements for both boys and girls, certain requirements for boys only and certain requirements for girls only. Three female students sued the school and the company that manages it challenging one of the requirements applicable only to girls—that they wear either skirts, jumpers or skorts, instead of pants or shorts. While the suit involves a host of legal theories, the only ones before us today ask whether a charter school's dress code may give rise to a claim under either the Equal Protection Clause or Title IX, 20 U.S.C. § 1681.

After discovery, all parties moved for summary judgment. The district court granted summary judgment to Plaintiffs on the equal protection claim, but to Defendants on the Title IX claim, holding that Title IX did not reach school dress codes. For the reasons set forth below, we conclude that the charter school here was not a state actor when promulgating the dress code and, thus, is not subject to an equal protection claim. At the same time, however, we determine that claims of sex discrimination related to a dress code are not categorically excluded from the scope of Title IX. Accordingly, we reverse on both claims and remand for further proceedings consistent with this opinion.

I.

A.

In the mid-1990s, the North Carolina General Assembly passed the Charter School Act. See N.C. Gen. Stat. § 115C-218, et seq . The law "authorize[d] a system of charter schools to provide opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate...