Women often complain that chivalry is dead. Well, if it wasn’t before, a court dominated by liberal judges just killed it, or, at least, drove another nail through its coffin, through pages of legal nonsense on sex-based discrimination.
Charter Day School is a classical charter school in Leland, North Carolina. Its curriculum stresses the values of traditional Western civilization, clear communication, and developing tools for self-expression. As part of its desire to encourage “chivalry and respect among young women and men,” it also maintains a dress code requiring girls to wear skirts.
On Tuesday, the 4th U.S. Circuit Court of Appeals ruled 9-6 that this requirement violates the Constitution’s equal protection clause.
Despite the majority’s propensity toward “stomping out any variance at odds with modern sensibilities,” as dissenting Judge Harvie Wilkinson put it, key issues on the legal responsibilities of charter schools were at play in Peltier v. Charter Day School.
The school’s defense of its skirt requirement put two questions before the court: whether charter schools are state actors subject to the Constitution, and whether Title IX applies to dress codes. On the first count, the court ruled that charter schools are public schools, thus state actors bound by the equal protection clause of the 14th Amendment. The ruling will “have ramifications far beyond any dress code requirement,” Judge Marvin Quattlebaum wrote in his partial dissent.
This case is, as the National Alliance for Public Charter Schools wrote in a statement, “the first time a federal appellate court considered whether public charter school students deserve the same constitutional civil rights protections as district public school students.” While the National Alliance believed the outcome was right, Quattlebaum disagreed out of a concern that the majority’s designation of charter schools as state actors would limit the choices they are designed to encourage.
On the second question, the court affirmed that dress codes are “subject to review under the anti-discrimination provisions of Title IX.” Skirt requirements discriminate against girls, they argue, even if comparable burdens are placed on men. Citing the Supreme Court ruling in Bostock v. Clayton County, the majority wrote, “Discriminating against members of both sexes does not eliminate liability, but ‘doubles it.”’
It wasn’t long before chivalry itself was on trial. The majority was quick to dismiss the legitimacy of Charter Day School’s hope to promote, as founder Baker Mitchell defines it, “a code of conduct where women are … regarded as a fragile vessel that men are supposed to take care of and honor.” Along with enforcing the skirt requirement for girls (which actually allows for jumpers or skorts), teaching chivalry required boys “to hold the door open for the young ladies and to carry an umbrella” to keep girls from the rain. The court claimed that this requirement “blatantly perpetuates harmful gender stereotypes,” siding with the plaintiffs’ argument that the dress code conveys a view that girls are worth less than boys.
“CDS has imposed the skirts requirement with the express purpose of telegraphing to children that girls are ‘fragile,’ require protection by boys, and warrant different treatment than male students, stereotypes with potentially devastating consequences for young girls,” Judge Barbara Milano Keenan wrote in the majority opinion.
It’s hard to miss the court reading ill-intent into innocent and even commendable principles. Wilkinson’s dissent strikes at the heart of the issue.
“Student dress codes in particular are unsettling to those who believe, as plaintiffs do here, that they connote feminine inferiority,” Wilkinson wrote. “I understand and respect this view. But the view is not universal. And the ‘cage’ is one of imprisonment in our own perspective, a reluctance to recognize that across the great span of America, there are views that differ from the judge’s own. To a great many people, dress codes represent an ideal of chivalry that is not patronizing to women, but appreciative and respectful of them.”
The majority rebutted Wilkinson by citing scholars who characterize chivalry “as a time when men could assault their spouses and commit other violent crimes against them with impunity.”
“So, contrary to the second dissent’s view, chivalry may not have been a bed of roses for those forced to lie in it,” they concluded. But Wilkinson recognized that no era is perfect. He acknowledged the great progress made in women’s rights while affirming the value of certain practices in the past, even suggesting they may provide a remedy for the mistreatment of women today.
“It is altogether good that opportunities now exist for women that did not exist in earlier generations,” he wrote. “But the new need not banish the old. The present need not invariably rush to discredit the past, lest the future hold our own intolerance to poor account. The advent of new possibilities need not extinguish more traditional gender roles which lend stability to home and family and ultimately to society itself. Indeed, many women embrace and balance both modern and traditional elements in their lives, to the benefit of the worlds of both work and family life.”
In the end, it is not for federal courts to decide whether skirts are discriminatory in a school dress code. Opinions on school uniforms vary vastly, and that’s OK.
Wilkinson is also right to say that the new need not banish the old. We could use a little more chivalry and respect for the differences between men and women, as appalling as it sounds to those who want to abolish gender roles.
Katelynn Richardson is a summer 2022 Washington Examiner fellow.
