Peltier v. Charter Day Sch., Inc.

37 F.4th 104

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 Appellants.

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; United States of America, Amici Supporting Appellees.

National Alliance for Public Charter Schools, Amicus Supporting Rehearing Petition.

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; United States of America, 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: December 10, 2021

Decided: June 14, 2022

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. Kristen Clarke, Assistant Attorney General, Thomas E. Chandler, Jason Lee, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus United States. Christopher A. Brook, PATTERSON HARKAVY LLP, Chapel Hill, North Carolina, for Amicus National Alliance for Public Charter Schools.

Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE, WYNN, DIAZ, THACKER, HARRIS, RICHARDSON, QUATTLEBAUM, RUSHING, and HEYTENS, Circuit Judges, and KEENAN and FLOYD, Senior Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Senior Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judges Motz, King, Wynn, Diaz, Thacker, Harris, Heytens, and Senior Judge Floyd joined. Judge Wynn wrote a concurring opinion, in which Judges Motz, Thacker, Harris, and Senior Judge Keenan joined. Senior Judge Keenan wrote a concurring opinion, in which Judge Thacker joined. Judge Quattlebaum wrote an opinion dissenting in part and concurring in part, in which Judges Richardson and Rushing joined, and in which Judges Wilkinson, Niemeyer, and Agee joined dissenting in part. Judge Wilkinson wrote a dissenting opinion, in which Judges Niemeyer and Agee joined.

ON REHEARING EN BANC

BARBARA MILANO KEENAN, Senior Circuit Judge:

Charter Day School (CDS),¹ a public charter school in North Carolina, requires female students to wear skirts to school based on the view that girls are "fragile vessels" deserving of "gentle" treatment by boys (the skirts requirement). The plaintiffs argue that this sex-based classification grounded on gender stereotypes violates the Equal Protection Clause of the Fourteenth Amendment, and subjects them to discrimination and denial of the...