Should Publicly Funded Schools Be Allowed to Require Girls to Wear Skirts?

Has a publicly funded charter school in North Carolina—that required its female students to wear skirts as they are “fragile vessels” who need to be handled “more gently than boys”—violated the Constitution? The Supreme Court isn’t sure and would like the Biden administration’s input before hearing the case. Instead of simply taking up or rejecting the case on Monday, the 6-3 conservative court requested a brief from U.S. Solicitor General Elizabeth Prelogar for the administration’s thoughts on case.

The case is from Charter Day School—a, you guessed it, charter school in southeastern North Carolina, run by a private company—which is hoping the Supreme Court will overturn the appellate court’s finding that its dress code violates the 14th Amendment of the Constitution. The U.S. Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, said the dress code “blatantly perpetuates harmful gender stereotypes” in its opinion published in June 2022.

The school argued that despite being a school accepting public funds, it was not a state actor and therefore not subject to the same rules. The appellate court found this laughable. “Courts may not subjugate the constitutional rights of these public-school children to the facade of school choice,” U.S. Circuit Judge Barbara Milano Keenan wrote in that June decision.

Still, the school pressed on: Aaron Streett, one of Charter Day School’s attorneys, told Reuters that this move by the Supreme Court “indicates that the court views this as an important case that may merit further review.” The ruling against the school has been called an “existential threat” against the so-called school choice movement, according to Reuters.

This case has gone on for years. In fact, the girls who first started this case against the tuition-free charter school were only 5, 10 and 14 (kindergarten, fourth and eighth grades) at the time. “In the year 2016, I don’t think anyone should have a problem with young women wearing pants,” Keely Burks, one of the plaintiffs wrote in a blog post for the ACLU North Carolina. “If I had the choice, I would wear pants or shorts to school every day. Some of my classmates would probably still want to wear skirts—but that should be their decision, not the school’s. Either way, we should have a choice.”

We eagerly await the Biden administration’s input.