Malcolm J. Howard, Senior United States District Judge.
This matter is before the court on the parties' cross motions for summary judgment
Plaintiffs Bonnie Peltier, as Guardian of A.P., a minor child; Erika Booth, as Guardian of I.B., a minor child; and Patricia Brown, as Guardian of K.B., a minor child; by and through counsel filed the complaint in this matter on February 29, 2016 and an amended complaint on March 11, 2016. Defendants filed a motion to dismiss, which was denied by this court. The parties were ordered to attend a court-hosted settlement conference as to all claims in this matter. The parties did not reach a settlement. Also, during the discovery period, plaintiffs filed a motion for appropriate relief, which was granted on September 29, 2017 [DE #136]. In that order, United States Magistrate Judge Kimberly A. Swank found misconduct by defendants' counsel
Now before the court are the above-listed motions. These motions are ripe for review.
STATEMENT OF THE FACTS
Plaintiffs are current or former students of Charter Day School, a co-educational, K-8 public charter school in Brunswick County, North Carolina. They brought this action challenging the school's uniform policy, which requires female students to wear "skirts, skorts, or jumpers" ("the skirts requirement") and male students to wear shorts or pants. Plaintiffs do not contest defendants' authority to impose a school uniform policy in general, but only the skirts requirement. They argue the skirts requirement forces them to wear clothing that is less warm and comfortable than the pants their male classmates are permitted to wear and, more importantly, restricts plaintiffs' physical activity, distracts from their learning, and limits their educational opportunities.
Plaintiffs claim the uniform policy violates federal and state law. Specifically, plaintiffs assert the following causes of action: (1) sex-based discrimination in violation
The North Carolina General Assembly passed the Charter Schools Act in the mid-1990s. The Act states its purpose as follows:
N.C. Gen. Stat. § 115C-218.
Charter Schools are operated by private, nonprofit corporations. N.C. Gen. Stat. § 115C-15(b). The board of directors of the school decides "matters related to the operation of the school, including budgeting, curriculum, and operating procedures." N.C. Gen. Stat. § 115C-15(d).
In this case, the nonprofit corporation which holds the charter for the School is defendant Charter Day School, Inc. ("CDS, Inc.").
The individual defendants, Robert Spencer, Chad Adams, Suzanne West, Colleen Combs, Ted Bodenschatz, and Melissa Gott (collectively "the Board" or "the Board members") comprise the Board of Trustees of CDS, Inc. and adopt the disciplinary rules, regulations, policies and procedures for the School. [DE #160 ¶¶11, 13].
The original charter application filed by CDS, Inc. notified the State that it intended to enter into an "educational management contract" with defendant RBA. [DE #160 ¶19]. RBA is a for-profit corporation and a legal entity separate from CDS, Inc. [DE #160 ¶20]. Mr. Mitchell is the founder, president, and sole shareholder of RBA. [DE #160 ¶21]. RBA's Chief Financial Officer, Mark Dudeck, serves at the treasurer of CDS, Inc., but is not part of the Board. [DE #160 ¶23]. The charter agreement between CDS, Inc. and the State bars RBA employees from serving on the Board. RBA manages the day-to-day operations of the four charter schools chartered under CDS, Inc., undertaking various functions including leasing land and school buildings to the School, acquiring materials, etc. [See DE #160 ¶¶25-26].
The School is a "traditional values" charter school. [DE #160 154, 55]. The four sections of the School's pledge are "to keep myself healthy in body, mind and spirit," "to be truthful in all my works," "to be virtuous in all my deeds," and "to be obedient and loyal to those in authority."
Since the School's original charter, it has required students to adhere to a uniform policy for the following purpose: "to instill discipline and keep order" so that "student learning is not impeded." Use of uniforms also "helps promote a sense of pride and of team spirit, as every student is a member of the academic team." [DE #160 ¶¶68, 119-121.] Plaintiffs do not dispute the authority of CDS, Inc. and the School to establish and enforce a uniform policy in general.
All students must wear white or navy blue tops, tucked into khaki or blue bottoms. Boys may wear pants or knee-length shorts with a belt, while girls may wear knee-length or longer jumpers, skirts or skorts but may not wear pants or knee-length shorts. Girls may wear, but are not required to wear, socks, stockings or leggings. Boys must wear socks. All students must wear closed-toe/closed-heel shoes; flip flops, Crocs and sandals are prohibited. [DE #13-2]. In addition to the required uniform, the school also has grooming standards in place which regulate jewelry, hair length and color, as well as makeup and facial hair.
In addition to the uniform policy, students at the School are permitted to wear a separate physical education ("PE") uniform on days they are scheduled to have PE class, which consists of a School approved t-shirt or sweatshirt and sweatpants or shorts. [DE #151 ¶¶50-51]. Because students in different classes are scheduled to have PE on different days, some percentage of the School's students wear the PE uniform on any given school day. [DE #151 ¶¶49-51]. Additionally, the uniform policy is suspended for various reasons on specific days, including certain field trip days, special events such as health, archery or girls' sports; when students achieve certain academic benchmarks; when students make donations to non-school-related charity organizations; or for celebrations or special events at the school. [DE #151 ¶¶52-59],
Violation of the uniform policy may result in disciplinary action. The uniform policy is primarily enforced by the School's teachers. [DE #160 ¶75]. When a student is out of compliance, a standardized, written notification is sent home to the student's parents. [DE #160 ¶76]. Repeated noncompliance results in a phone call to the parents. [DE #160 ¶79]. Sometimes items are loaned to students who cannot afford or do not have a particular item. [DE #160 ¶81]. A student who is out of compliance may be removed from class and sent to the School office or his or her parents may be called and asked to pick up the child. Additionally, the student could be excluded from class for the day and could be expelled; however, no child has ever been expelled for a uniform policy violation. [Answer, DE #94 ¶49].
Plaintiffs and their parents/guardians ad litem have testified that plaintiffs find skirts less comfortable on a daily basis and less warm in the wintertime than pants. [DE #151 ¶¶123-126, 154-64, and 179-257.] The skirts requirement forces them to pay constant attention to the positioning of their legs during class, distracting them from learning, and has led them to avoid certain activities altogether, such as climbing or playing sports during recess, all for fear of exposing their undergarments and being reprimanded by teachers or teased by boys. [
The Board has the authority to establish and alter the uniform policy's specific requirements. The Board believes the uniform policy's current requirements inextricably support the School's broader, traditional-values educational model. One Board member stated that the requirements of the uniform policy, including its sex-differentiated requirements, "work seamlessly together in a coordinated fashion in a disciplined environment that has mutual respect between boys and girls and between each other as students." [Adams Dep. 134:1-15, DE #161-1]. The Board members focus on the uniform policy as a whole and not on the specific gender-based requirements, noting it is part of the overall design of the School to instill discipline, order, and mutual respect. However, the Board members in their depositions all seemed to be unable to answer whether it would disrupt discipline if girls were allowed to wear pants (leaving in place the rest of the uniform policy). Furthermore, they often relied on the School's high enrollment and the parents' apparently satisfaction with the policy. They note that the uniform policy is part of the School's traditional values education, and that changing any of the specific
Defendants make much of the test scores and achievements of their students, comparing both the success of the students at the School versus students in traditional public schools within the county, as well as the girls in the School versus the boys in the school. There is no dispute among the parties that the test scores of the School are high compared to traditional public schools in the areas. Nor is there any dispute that plaintiffs chose to send their children to the School, in part, because of the high test scores. Defendants attempt to tie this success to the uniform policy; however, they do not bring forth any facts showing specifically how the skirts requirement furthers this success.
I. Standard of Review
Summary judgment is appropriate pursuant to Rule 56 of the Federal Rules of Civil Procedure when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.
Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading,
In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the non-moving party.
II. Title IX Claims
Title IX provides: "No person... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). An implied private right of action exists for enforcement of Title IX.
Defendants argue they are entitled to summary judgment on plaintiffs' Title IX claims for the following reasons: (1) RBA receives no federal financial assistance and it has no authority to alter the uniform policy, which is set by the Board of CDS, Inc; and (2) as to both defendants, the federal agencies tasked with enforcing Title IX interpret it not to apply to school personal-appearance codes at all.
In 1982, the United States Department of Education ("ED") promulgated amendments to its Title IX regulations to revoke the provision that had "prohibit[ed] discrimination in the application of codes of personal appearance." Nondiscrimination on the Basis of Sex, 47 Fed. Reg. 32,526 (July 28, 1982) (hereinafter, "Withdrawal of Appearance-Code Regulation"). ED found "no indication in the legislative history of Title IX that Congress intended to authorize Federal regulations in the area of appearance codes."
Further, ED and many other federal agencies adopted the Title IX Common Rule
Defendants urge this court to give proper deference to the agency interpretation under
Title IX does not directly speak to the "precise question" of school uniform policies or appearance codes, suggesting that Congress left this matter to the agency's discretion. See
III. Equal Protection Claims
a. State Action
Defendants first argue that plaintiffs' Equal Protection Claim ("EPC") claims brought pursuant to § 1983 fail because none of the defendants act "under color of [State] statute, ordinance, regulation, custom or usage." 42 U.S.C. § 1983. Plaintiffs contend that as owners and operators of a charter school specifically designated as a public school under North Carolina law, defendants are state actors subject to the Constitution's equal protection mandate.
Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983.
In order to establish a claim under § 1983, plaintiffs must show (1) that defendants deprived them of a right secured by the Constitution and laws of the United States and (2) that they deprived them of this right under color of state law.
However, there are times when the actions of private individuals and organizations may be deemed state action. "[S]tate action may be found if, though only if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior may be fairly treated as that of the State itself.'"
As the defendants in this matter are not public officials, but rather private individuals or organizations, plaintiffs have to show that the "allegedly unconstitutional conduct is fairly attributable to the State."
Caselaw dictates that the court must first, through a factual inquiry, determine the specific conduct of which plaintiffs complain.
Here, plaintiffs complain of the issuance and application of a school uniform policy by a private corporation and its Board members. The uniform policy consists of the specific uniform requirements and the grooming standards. These
"Public School"—How the State Views the Entity
Under this analytical framework, plaintiffs first argue that defendants are state actors simply because North Carolina statutory law designates charter schools as public schools.
"Historical, Exclusive and Traditional State Function"
In North Carolina, free, public education has long been historically governmental. Article IX of The North Carolina Constitution provides for a uniform system of free public schools:
N.C. Const. art. IX, § 2(1).
Therefore, CDS, Inc. is performing an historical, exclusive and traditional state function.
Charter schools, in North Carolina, are creatures of a statutory scheme whose express purpose is to "authorize a system of charter schools to provide opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently." N.C. Gen. Stat. § 115C-218(a). It is undisputed that the School is a charter school funded with public funds. Further, "[e]xcept as provided in [Article 14a of the North Carolina General Statutes] and pursuant to the provisions of its charter, a charter school is exempt from statutes and rules applicable to a local board of education or local school administrative unit." N.C. Gen. Stat. § 115C-218.10.
In furtherance of fostering the statutory goal of independence, the charter school's board, not the State, decides "matters related to the operation of the school, including budgeting, curriculum, and operating procedures." N.C.Gen. Stat. § 115C-218.15(d). However, despite the stated goal and some freedoms, the State extensively regulates portions of charter school operations. For example, the State sets the formula for funding allocation, establishes criteria for student admission and prohibits charter schools for charging tuition. N.C. Gen. Stat. § 115C-218.45, § 115C-218.50(b). It also requires charter schools to comply with instructional standards adopted by the State Board of Education, N.C. Gen. Stat. § 115C-218.85, and prohibits charter schools from sectarianism or discrimination, N.C. Gen. Stat. §§ 115C-218.50(a), 115C-218.55 ("A charter school shall not discriminate against any student on the basis of ethnicity, national origin, gender, or disability.").
State law also requires public schools, including charter schools, to establish a student code of conduct and discipline. N.C. Gen. Stat. § 115C-390.2; N.C. Gen. Stat. § 115C-218.60.
By subjecting charter schools to Article 27, the general statutes provide that charter schools "shall adopt policies to govern the conduct of students and establish procedures to be followed by school officials in disciplining students. These policies must be consistent with the provisions of this Article and the constitutions, statutes, and regulations of the United States and the State of North Carolina." N.C. Gen. Stat. § 115C-390.2(a). Among the many regulatory restrictions on disciplinary codes within this section, is a statutory restriction on the use of long-term suspensions and expulsions for non-serious violations of the discipline codes, including dress code violations:
N.C. Gen. Stat. § 115C-390.2 (emphasis added).
In the matter before the court, the Board of CDS, Inc. incorporated the uniform policy into the Discipline Code of the Student Handbook. Further, defendants admit that violations may result in disciplinary action. [DE #94 ¶49]. The court need not decide whether every dress code or uniform policy of a charter school is extensively regulated by the State because, in this matter, CDS, Inc. has brought the uniform policy under extensive regulation of the State by making violations of the uniform policy a disciplinary violation.
This case presents a multi-faceted analysis regarding whether the actions of defendants constitute state action. However, this is the analysis the court must conduct based on the statutory scheme established by the North Carolina General Assembly — a scheme which attempts to contract out and fully fund an historical, traditional and exclusively state function, namely free public education, to private corporations and individuals. Answering the precise question before the court, the court finds that under the facts and circumstances presented here, CDS, Inc. and its board members acted under color of state law when they incorporated into the disciplinary code of the School a uniform policy the violation of which could subject students to discipline. The undersigned notes this finding does not equate to a finding that North Carolina charter schools and their board members are state actors for all purposes, only that the action complained of here occurred under color of state law.
b. Defendant RBA
Defendants argue the lack of state action is even clearer with respect to RBA. RBA holds no direct contract with the State and receives no direct public funding but rather contracts with CDS, Inc. to provide "necessary educational facilities and management services." Perhaps even more important, RBA has no direct authority to change the uniform policy. The uniform policy is set by the Board, and RBA's officers are not members of the Board of CDS, Inc. Plaintiffs argue that RBA was equally subject to the delegation of authority by the State for the education of students at the School, and has played a principal role in the creation, governance, and operation of the School from its inception. Plaintiff notes that the Charter Application was filed by CDS, Inc., "in conjunction with" RBA; the logo on the application is that of RBA, and the header on each page lists both CDS, Inc. and RBA. Mr. Mitchell is listed as the primary contact. The Application detailed the operation and management of the school by RBA.
The facts show that RBA and CDS, Inc. are significantly intertwined, yet legally distinct entities. RBA provides the facilities, maintenance, staff and administration. However, despite these close connections, CDS, Inc. is the non-profit entity which holds the charter with the State and the Board of CDS, Inc. is the entity with final authority over the uniform policy at issue in this matter. Therefore, the court finds the state action doctrine does not extend so far as to cover RBA in this particular instance. While the court notes that RBA and its principals appear to exercise much
c. EPC Claims Analysis
Having found state action on the part of CDS, Inc., the court turns to the issue of whether the uniform policy, as currently written and enforced, violates the equal protection clause. "The equal protection clause of the Fourteenth Amendment protects individuals against intentional, arbitrary discrimination by government officials."
Courts traditionally have and should refrain from regulating the day-to-day issues presented in local schools, leaving such matters to local authorities,
Here, plaintiffs have shown that CDS, Inc. has promulgated and is enforcing a uniform policy at the School that requires girls to wear skirts, and, on its face, treats girls differently than boys by not allowing them to wear pants. Further, plaintiffs argue this policy and its enforcement cause girls to suffer a burden that the boys do not suffer and that the policy is based on impermissible sex stereotypes. Plaintiffs argue this policy and its enforcement constitute unconstitutional sex discrimination.
Under the constitutional framework and controlling precedent, sex is not a proscribed classification like race or national origin.
The caselaw in this specific area is not well developed, at least not in recent jurisprudence. Most recent uniform and dress code cases are claims based on the First
However, the court need not decide the exact breadth of application of
While defendants argue the skirts requirement is based on the traditional values approach of the school as a whole and is in place to instill discipline and keep order, defendants have shown no connection between these stated goals and the requirement that girls wear skirts. Defendants argue that the sex-differentiated requirements cannot be viewed in isolation but instead "work seamlessly together in a coordinated fashion in a disciplined environment that has mutual respect between boys and girls and between each other as students" and that the uniform policy, and specifically the skirts requirement, helps the students to "act more appropriately" toward the opposite sex. They argue that taking away the "visual cues" of the skirts requirement would hinder respect between the two sexes. However, even assuming these are legitimate goals, defendants have not shown how the skirts requirement actually furthers these stated goals. The evidence shows that on any given day, a portion of the female student population is not subject to the skirts requirement. The undisputed facts show that there are a number of days (P.E. days at least once per week, as well as special event, and field trips days) where girls are not required to wear skirts. There has been no evidence presented that the boys treat the girls differently or vice versa on those days. When questioned about the skirts requirement, none of the Board members deposed could explain how requiring girls to wear skirts specifically furthered the policy's stated goals. Further, there is no evidence that requiring girls to wear skirts on a daily basis is consistent with community standards of dress in Brunswick County or in North Carolina generally.
Under the facts of this specific case, the court finds that the skirts requirement of the uniform policy of the School promulgated by CDS, Inc., as written and enforced, violates the Equal Protection Clause. Plaintiffs are entitled to summary judgment on this issue. Defendants' motion for summary judgment on this issue is DENIED.
North Carolina Constitutional Claims
The North Carolina Constitution provides a direct cause of action only in the absence of an adequate state remedy. "An adequate state remedy exists if, assuming the plaintiffs claim is successful, the remedy would compensate the plaintiff for the same injury alleged in the direct constitutional claim."
Neither plaintiffs nor defendants have adequately addressed this issue in a manner in which the court can provide proper analysis. Therefore, the motions for summary judgment as to the North Carolina constitutional claims are DENIED WITHOUT PREJUDICE to be refiled, if appropriate, with proper support.
Breach of Contract Claims
Plaintiffs contend they are third-party beneficiaries to the contract between the State of North Carolina and CDS, Inc. as well as the management agreement between CDS, Inc. and RBA. While plaintiffs contend their status as third-party beneficiaries is clear, the court finds, similar to the state constitutional claim, that neither defendants nor plaintiffs have adequately addressed this legal issue in a manner in which the court can provide proper analysis. Therefore, the cross motions for summary judgment are DENIED WITHOUT PREJUDICE as to the breach of contract claims to be refiled, if appropriate, with proper support.
As to the Motion to Strike Answer to Amended Complaint [DE #200], Motion to Stay Motion to Strike [DE #203], and Motion for Extension of Time to File Response to Motion to Strike [DE # 203], all of these are procedural motions which only
Also before the court is defendants' motion for this court to allow trial before an advisory jury [DE #208]. The court, in its discretion, denies this request.
For the foregoing reasons, the court hereby orders as follows: the cross motions for summary judgment [DE #149 and #158] are GRANTED IN PART, DENIED IN PART, AND DENIED WITHOUT PREJUDICE IN PART. Specifically, as to the Title IX claims, defendants' motion for summary judgment is GRANTED and plaintiffs' motion DENIED. As to the EPC claim, defendants' motion is GRANTED as to defendant RBA and DENIED as to all other defendants. Plaintiffs' motion for summary judgment is GRANTED as to CDS, Inc. and the individual board members insofar as the court finds the skirts requirement violates the equal protection clause. As to the North Carolina Constitutional and breach of contract claims, the cross motions are DENIED WITHOUT PREJUDICE. The motion to strike, motion to stay and motion for extension of time [DE #200, #203] are DENIED WITHOUT PREJUDICE to be refiled if necessary, and the motion for an advisory jury [DE #208] is DENIED.
The clerk is directed to refer this matter to the magistrate judge for further case management.