Tuesday, April 02, 2019

Plaintiffs Win Dress Code Challenge with Equal Protection Argument

An Equal Protection challenge to a public charter school's gendered dress code recently survived summary judgment. But the court dismissed the plaintiff's Title IX claim. As we noted in an earlier post about this case, the plaintiffs are a group of parents suing suing Charter Day School on behalf of their female children to challenge the school's dress code policy that prohibits girls from wearing pants. The school's uniform policy is part of its mission as a "traditional values charter school." Boys can wear pants or shorts while girls are restricted to skirts.

The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs.  Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.

Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a sticter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.")  Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.

The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case.