Bloomberg Law
May 23, 2023, 2:27 PM

US Says Justices Should Skip on Charter School Skirt Rule Case

Patrick Dorrian
Patrick Dorrian

The US Supreme Court should decline to hear a North Carolina charter school’s argument that its rule requiring female students to wear skirts, jumpers, or skorts wasn’t unconstitutional state action, US Solicitor General Elizabeth B. Prelogar said.

The federal government offered its view on Charter Day School’s petition for high court review at the invitation of the justices. The case was properly decided by the US Court of Appeals for the Fourth Circuit, doesn’t involve a legal question on which the federal circuits are split, and otherwise makes a “poor vehicle” for Supreme Court review, the government said Monday in an amicus curiae brief.

A ruling by the justices that Charter Day wasn’t a state actor would have adverse consequences, the government said. Such a ruling would allow North Carolina and other states “to evade constitutional constraints by delegating core governmental functions to private entities,” it said.

At issue is whether the school’s uniform rules for girls, which generally prohibited them from wearing shorts and pants, violated the equal protection clause. Three female students and their parents sued challenging the rule and an en banc Fourth Circuit held June 14 that Charter Day was a “state actor” bound by the US Constitution. Among other things, North Carolina delegated some of its constitutional obligation to provide a free public education to children in the state when it granted a charter to the school, the Fourth Circuit said.

That conclusion was on the mark, as was the Fourth Circuit’s finding that Charter Day performs a function traditionally reserved exclusively to the state, the government said. The appeals court’s ruling was consistent with the justices’ 1988 decision in West v. Atkins and other high court precedent, the government said.

North Carolina law expressly requires charter schools to comply with the same laws that apply to student codes of conduct and discipline in other public schools, the government said. State law also limits the authority of charter schools to enforce their codes of conduct through disciplinary action, just as it does with traditional public schools, the government said.

Charter Day’s skirt rule therefore had to pass strict scrutiny under the equal protection clause, and the Fourth Circuit properly held that the requirement was driven by impermissible sex stereotyping, not by an important governmental interest, the US said.

The school argued in its petition seeking Supreme Court review that the Fourth Circuit’s ruling opened a circuit split.

The solicitor general’s office represents the government. Baker Botts LLP represents Charter Day and other defendants. The American Civil Liberties Union and Ellis & Winters LLP represent the students and their parents.

The case is Charter Day Sch. Inc. v. Peltier, U.S., No. 22-238, amicus brief filed 5/22/23.

To contact the reporter on this story: Patrick Dorrian in Washington at

To contact the editors responsible for this story: Carmen Castro-Pagán at; Nicholas Datlowe at

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