Sonia Pressman Fuentes
Gender and School Dress Codes
Complaint by Bonnie Peltier (who was later joined by the parents of two other students when the court case was initiated) against the Charter Day School in Leland, NC.
For many years, Sonia answered questions with regard to women's rights and women's history on a website called allexperts.com. (That website went out of business in 2017.) In June 2015, she received an email from a woman named Bonnie Peltier who had found her on allexperts.com and was seeking her assistance. Ms. Peltier, a single mother of a boy and girl in elementary school had moved to Leland, North Carolina where she believed the charter school would provide a better education than the school they had been attending--only to find out after her children were enrolled that the school had a policy that prohibited female students and teachers from wearing slacks or pants and required them to wear skirts or dresses. She believed this policy amounted to unlawful gender discrimination, couldn't get any other parents or any teachers to join with her in fighting the policy, and asked Sonia for help.
When Bonnie told Sonia about this policy, Sonia had trouble believing that a public charter school in the year 2015 would have such a policy--but indeed it did.
Sonia contacted her friend, Sue Klein, an expert on discrimination in education under Title IX of the Education Amendments of 1972 who is with the Feminist Majority. Sue referred Sonia to Amy Katz, an ACLU-affiliated attorney with whom Sonia had been in contact in the past on other matters. Amy secured the assistance of additional ACLU-affiliated lawyers who worked on the case.
Lawsuit in the District Court in NC
The lawsuit against the Charter Day School in Leland, N.C. was filed on the afternoon of Feb. 29, 2016. The American Civil Liberties Union (ACLU) and the parents of two other students at the school joined Bonnie as plaintiffs. No female teacher joined as a plaintiff.
The Washington Post's article on the district court's decision appeared on March 30, 2019 (read the article here) and The New York Times reported on it on March 31 (read the article here). The Washington Post's article, however, mistakenly stated that when Bonnie Peltier wanted to challenge the dress code, she contacted the ACLU. She did not. She contacted Sonia, who then contacted Sue Klein of the Feminist Majority, who referred her to Amy L. Katz, an ACLU-affiliated attorney, who, with other ACLU-affiliated attorneys, brought the lawsuit.
The case was also discussed on ABC-TV's "The View" on April 1, 2019, which may be viewed here.
Charter Day School's Appeal to the Fourth Circuit Court of Appeals
In January 2020, the school filed an appeal with the Fourth Circuit Court of Appeals. Galen Sherwin argued the case on behalf of the ACLU on March 11, 2021, in the Fourth Circuit Court of Appeals. One can hear the en banc rehearing in the Fourth Circuit here.
At this time, the school permits female students to wear pants or shorts, but female school teachers, who did not join the lawsuit, must still wear dresses or skirts.
Bonnie Peltier's Comments About Sonia
On March 16, 2021, Bonnie Peltier wrote Sonia: "I was telling a new friend about the case. He said to me `Wait, you went onto a random website that you had never been on before and you looked through a list of experts and you randomly picked one of them and she just happened to be a retired civil rights rock star? Her name is Sonia Fuentes and she's not a Latina but a Jewish woman from NY? Do you know how unbelievable that all sounds?'" [Sonia is not from NYC, but from Berlin, Germany, but she did grow up in NY State.]
On July 12, 2021, Bonnie placed the following notice on Facebook:
"It is my absolute honor to know Sonia Pressman Fuentes and Sonia I hope you don't mind me sharing your good news. I found her on a website years ago and asked her a simple question. 'Is it OK for a public charter school to force girls to wear skirts'? From that moment she was on fire. She got me in touch with the right people at the ACLU and the rest is history. She's the co-founder of NOW and is receiving a well deserved Lifetime Achievement Award. Congratulations Sonia!
"Please tune in on July 25 at 2pm to hear her speak. You won't be disappointed. Her story is truly inspirational."
Decision of the Fourth Circuit Court of Appeals
On Aug. 9, 2021, the Fourth Circuit Court of Appeals issued its decision in the case, which may be found here.
Amy Katz emailed Sonia as follows about the case on Aug. 9.
"The Fourth Circuit issued its opinion in Peltier v Charter Day School today. . . .
"The decision is a mixed bag. The court gave us a win and held that Title IX applies to dress codes, an issue we had lost on below. It also held that the management organization, Roger Bacon Academy, is a 'recipient' of federal funds and subject to Title IX.
"On the other hand, the court determined that Charter Day School is not a state actor with regard to the dress code and hence the constitution does not apply. The court did seem very skeptical of the justifications put forth by the school, but shut down the entire constitutional question because of the lack of state action. We had prevailed on the constitutional question below.
"There is a strong dissent from Judge Keenan regarding the state action issue.
"As Title IX applies to virtually all public and charter schools, this is overall a big win.
"Of course it's not over yet and the District Court has to rule on the merits of the Title IX claim."
ACLU Press Release of Aug. 9. 2021
Federal Appeals Court Says Title IX Bans Discrimination in School Dress Codes
The Court Said North Carolina Public Charter Schools May Operate Outside Constitutional Bounds but Are Subject to Title IX, the Landmark Sex Discrimination Law
FOR IMMEDIATE RELEASE
August 9, 2021
CONTACT: Tyler Richard, firstname.lastname@example.org
RICHMOND, Va. - A federal appeals court ruled today that Title IX, the federal law banning sex discrimination in schools, prohibits discriminatory dress codes in a case involving a K-8 public charter school that requires girls to wear skirts as a condition of attending school. The appeals court sent the case back to the trial court to decide if the skirts requirement in fact violates the law. At the same time, the court found that North Carolina public charter schools aren't required to comply with the Constitution. The American Civil Liberties Union, the ACLU of North Carolina, and the law firm of Ellis & Winters LLP originally filed a challenge to the skirts requirement on behalf of three North Carolina students.
The skirts requirement was intended to promote "traditional" gender roles at school. The students, who were in kindergarten, fourth, and eighth grades when the case was filed, argued that the skirts requirement sent a message that they were different and less than boys, and that it restricted their movement and distracted them from learning.
"I wanted my daughter and all the other girls at her school to know that they can learn, move, and play on equal terms as the boys in school," said Bonnie Peltier, the mother of a former Charter Day School student who was a client in the case. "I'm relieved that a federal court of appeals recognized that forcing girls to wear skirts or miss classroom instruction time can be a form of sex discrimination."
Dress codes have historically been used to police girls in schools, disproportionately targeting girls of color, gender -non-conforming girls, and trans girls, among others. Dress codes that enforce different rules for boys and girls can further harm transgender, non-binary, or gender non-conforming students by reinforcing binary sex categories.
"We're pleased that today's decision recognizes that Title IX's broad promise of equal opportunity for girls applies to discriminatory dress codes," said Galen Sherwin, senior staff attorney with the ACLU Women's Rights Project. "Dress codes that enforce different rules based on old-fashioned conventions of how girls should dress, look, and behave while intentionally signaling that girls are not equal to boys perpetuate gender stereotypes and should have no place in our public schools. But we are disappointed that the court placed North Carolina public charter schools beyond the constitutional guarantee of equal protection under law for all students. We will continue to fight for our clients and girls like them across the country."
"Uniform policies that prohibit girls from wearing pants to school not only infringe on girls' right to learn, but are also a transparent tool to control girls' bodies and disproportionately harm LGBTQ+ and Black and Brown students," said Irena Como, senior staff attorney at the ACLU of North Carolina.
"No, this is not 1821 or 1921. It's 2021," Circuit Judge Barbara Milano Keenan said in an opinion dissenting from the conclusion that public charter schools may operate outside constitutional bounds. "Women serve in combat units of our armed forces. Women walk in space and contribute their talents at the International Space Station. Women serve on our country's Supreme Court, in Congress, and, today, a woman is vice president of the United States. Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes and signals that girls are not as capable and resilient as boys."
This statement is online here.
The Associated Press had the following article on the Appeals Court's decision.
Appeals court gives mixed ruling on N.C. school's dress code
A federal appeals court has tossed out a lower-court ruling that banned a North Carolina charter school from requiring girls to wear skirts.
By MATTHEW BARAKAT Associated Press
August 9, 2021, 5:09 PM
FALLS CHURCH, Va. -- A federal appeals court on Monday tossed out a lower-court ruling that banned a North Carolina charter school from requiring girls to wear skirts.
But the 2-1 ruling from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, also opens up a new legal avenue to challenge the legality of the skirts requirement.
Charter Day School, a public charter school in Leland, North Carolina, that serves elementary and middle school students, was sued in 2016 by parents who objected to the dress code. The rules required girls to wear skirts, jumpers or skorts, except on gym days.
In 2019, a federal judge ruled that the dress code was unconstitutional because the charter school should be considered a state actor and that the rule violated the Equal Protection Clause of the 14th Amendment.
Since then, the school has suspended that part of its dress code.
In Monday's decision, though, Judges A. Marvin Quattlebaum and Allison Jones Rushing, both appointees of former President Donald Trump, ruled that charter schools should not be considered state actors, and are therefore not subject to the Equal Protection Clause, a ruling that could give charter schools greater leeway to operate as they see fit on issues beyond implementation of dress codes.
But the ruling does not flatly allow for reinstatement of the dress code. Instead, it orders the lower court to review whether the dress code is a violation of Title IX, the federal law that bars sex-based discrimination in education.
In a dissent, Judge Barbara Milano Keenan, an appointee of former President Barack Obama, said the ruling barring the dress code should have been flatly upheld.
"No, this is not 1821 or 1921. It's 2021," Milano wrote. "Yet, girls in certain public schools in North Carolina are required to wear skirts to comply with the outmoded and illogical viewpoint that courteous behavior on the part of both sexes cannot be achieved unless girls wear clothing that reinforces sex stereotypes."
Baker Mitchell, who founded the school in 1999, said he still believes in the dress code, and that a majority of parents at the school support it as well.
"We're a school of choice. We're classical in our curriculum and very traditional. I believe that the more of the traditional things you have in place, the more they tend to reinforce each other," he said in a phone interview. "We want boys to be boys and girls to be girls and have mutual respect for each other. We want boys to carry the umbrella for girls and open doors for them ... and we want to start teaching that in grammar school."
The ACLU, which helped bring the lawsuit, issued a statement saying it's pleased that the ruling opens up the opportunity for dress codes to be challenged under Title IX, but disappointed that it overturns the finding of an Equal Protection Clause violation.
"Dress codes that enforce different rules based on old-fashioned conventions of how girls should dress, look, and behave while intentionally signaling that girls are not equal to boys perpetuate gender stereotypes and should have no place in our public schools," said Galen Sherwin, senior staff attorney with the ACLU Women's Rights Project.
Thereafter, the Fourth Circuit Court of Appeals had a rehearing en banc and issued a decision on June 14, 2022. You can read that decision here.
After that decision, also on June 14, 2022, the ACLU published the following press release:
For Immediate Release 06/14/2022
CONTACT: Gillian Branstetter, ACLU, email@example.com
NORTH CAROLINA — A federal appeals court ruled today that a K-8 public charter school is required to comply with constitutional and federal law requirements that apply to traditional public schools in a case involving a uniform policy requiring girls to wear skirts as a condition of attending school. This is the first time a federal appeals court has recognized that charter schools receiving public funds are subject to the same constitutional and civil rights safeguards as traditional public schools. The American Civil Liberties Union, the ACLU of North Carolina, and the law firm Ellis & Winters LLP originally filed this challenge on behalf of three Brunswick County students.
“Nothing in the Equal Protection Clause prevents public schools from teaching universal values of respect and kindness,” wrote Judge Barbara Keenan of the Fourth Circuit Court of Appeals. “But those values are never advanced by the discriminatory treatment of girls in a public school.”
The students challenging the policy, who were in kindergarten, fourth, and eighth grades when the case was filed, argued that the skirts requirement signaled that school administrators valued their education less than that of boys and that wearing skirts limited their movement and made them uncomfortable in various weather conditions and other school situations like playing freely at recess or sitting on the floor.
“I’m glad the girls at Charter Day School will now be able to learn, move, and play on equal terms as the boys in school,” said Bonnie Peltier, the mother of a former Charter Day School student who was a client in the case. “In 2022, girls shouldn’t have to decide between wearing something that makes them uncomfortable or missing classroom instruction time.”
Charter Day School argued before the court of appeals that its students did not have any constitutional rights while attending school and that Title IX, the federal law prohibiting gender discrimination in publicly-funded schools did not prohibit dress codes that impose different rules for boys and girls. It justified the dress code by arguing that boys and girls are different and that girls are more delicate and in need of protection than boys.
The Fourth Circuit ruled against Charter Day School on both arguments, finding that the school is subject to the Constitution’s guarantee of equal protection, and further, that the dress code violated that guarantee, observing that it was “difficult to imagine a clearer example of a rationale based on impermissible gender stereotypes” than the school’s justifications for the policy.
The Court further recognized that Title IX, the federal law that prohibits sex discrimination in federally-funded education programs, applies to dress codes that draw distinctions based on sex, and remanded to the district court to assess whether the skirts requirement had excluded the plaintiffs from educational benefits or opportunities or otherwise discriminated against them based on sex under that federal statute.
“Today’s decision is a victory for North Carolina’s students attending public charter schools, and should put charter schools across the country on notice that they must follow the same rules as traditional public schools when it comes to guaranteeing students’ equal educational opportunities,” said Galen Sherwin, senior staff attorney with the ACLU Women's Rights Project. “As the opinion recognizes, dress codes that enforce different rules based on students’ sex reinforce old-fashioned conventions of how girls should dress, and signal that girls are not equal to boys. These discriminatory gender stereotypes are harmful and have no place in our public schools.”
“We appreciate that the court recognized that the public charter school’s archaic dress code policy is discriminatory and violates the Constitution and that it may well also violate Title IX,” said Irena Como, deputy legal director at the ACLU of North Carolina. “These uniform requirements seek to police girls’ bodies, particularly LGBTQ+ and Black and Brown students, and can further harm transgender, nonbinary, and gender non-conforming students by reinforcing binary sex categories.”
125 Broad Street
New York, NY 10004
The Washington Post covered the Fourth Circuit’s opinion here.
The Associated Press covered the Fourth Circuit's opinion here.
On September 12, 2022, the Charter Day School filed a writ of certiorari to the Supreme Court for review of the Fourth Circuit Court of Appeals’ decision that a charter school, like a public school, is subject to the Equal Protection Clause of the Constitution.
On Jan. 17, 2023, Amy Katz, one of the ACLU-affiliated attorneys representing the plaintiffs in the case, advised Sonia as follows:
“Peltier is currently on hold. Rather than granting or denying the school’s petition for certiorari, the Supreme Court called for the views of the Solicitor General of the United States. There is no timetable for the Solicitor General filing the brief with her views. In all likelihood this means that the case cannot be heard this term, if it is heard at all.”
On the evening of May 22, 2023, Sonia received an email from Amy Katz stating as follows: "I thought you'd be interested in the attached brief that the Solicitor General of the United States filed today. It takes the position that the Fourth Circuit correctly decided that Charter Day School is a state actor subject to the U.S. Constitution and that the Supreme Court should not grant cert.
"We expect the Court to take as much as two weeks to determine whether it will take the case."