A federal court in North Carolina recently threw out a Title IX claim that made a novel argument of sexual discrimination in the school setting: Dress codes for girls.
Female Students File Title IX Claim Over Dress Code
The plaintiffs in the case were young girls who claimed that their primary school, Charter Day School, was violating their Title IX and constitutional rights by requiring that they wear skirts, while boys at the co-ed, public charter school were allowed to wear shorts or pants. Specifically, the school's dress code required female students to wear “skirts, skorts, or jumpers,” while boys were required to wear “shorts or pants.”
According to the girls in the case, the dress code “forces them to wear clothing that is less warm and comfortable… and, more importantly, restricts [their] physical activity.”
According to the charter school, the dress code reflects the “traditional values” that the school was designed to uphold.
The girls filed a civil rights lawsuit, claiming both a violation of Title IX and the Equal Protection Clause of the 14th Amendment, in the Eastern District of North Carolina.
Court Throws Out Title IX Claim
Before the case went very far, though, the court threw away the portion that claimed a violation of Title IX.
The court found that the regulation 34 CFR § 106.31(b)(5) used to prohibit sexual discrimination “in the application of codes of personal appearance” – a provision that would have been the basis for a challenge to a school's gender-defined dress code under Title IX.
However, way back in 1982, the Department of Education changed that regulation: In 47 Fed. Reg. 32526, the Department of Education cut out section (b)(5). It supported this decision by claiming there were no signs that Title IX was meant to address appearance and dress codes, that the Department of Education's time and resources would be better spent on “more serious allegations of sex discrimination,” and that appearance and dress codes in schools would be better “resolved at the local level.”
Removing this provision from the regulatory framework of Title IX, in the eyes of the Eastern District of North Carolina, was a strong indication that dress codes were outside the gambit of Title IX's prohibition against sexual discrimination. Furthermore, “in thirty-five years, Congress has never overridden [the Department of Education's] interpretation of the [Title IX] statute,” serving as another strong sign that Title IX did not apply to dress codes.
While the court allowed the girls' claim under the Equal Protection Clause to continue, it ended their argument that Title IX was being violated with an emphatic shake of the head.
National Title IX Advisor Joseph D. Lento
Joseph D. Lento is a national Title IX advisor and defense lawyer who represents students who have been accused of sexual misconduct on college or school grounds. The process is often confusing, and a negative outcome in your case can lead to serious and long-term repercussions. Contact him online or call his law office at (888) 535-3686 for the legal help and guidance you need.