Peltier, et al. v. Charter Day School, Inc., et al.

Filing 91

ORDER denying 27 Motion to Dismiss for Failure to State a Claim. The court ORDERS a court-hosted settlement conference as to all claims in this matter. United States Magistrate Judge Robert B. Jones, Jr. is hereby appointed as settlement master. **Counsel are directed to read the order in its entirety for all pertinent information. Signed by Senior Judge Malcolm J. Howard on 3/30/2017. (Lee, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO.: 7:16-CV-30-H

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;
Plaintiffs,

v.

ORDER

CHARTER DAY SCHOOL, INC.,
ROBERT P. SPENCER,CHAD
ADAMS, SUZANNE WEST, COLLEEN
COMBS, TED BODENSCHATZ, and
MELISSA GOTT in their
capacities as members of the
Board of Trustees of Charter
Day School, Inc., and THE
ROGER BACON ACADEMY, INC.,
Defendants.
This matter

is before the

court on defendants'

motion to

dismiss all claims against them for failure to state a claim upon
which

relief

can

be

granted.

defendants have replied.

Plaintiffs

have

responded,

and

This matter is ripe for adjudication.
BACKGROUND

Plaintiffs bring suit on behalf of three minor children, all
of whom are

students

at

Charter

Day School

(the

"school")

in

kindergarten, fourth and eighth Graders respectively.

Charter Day

School is a co-educational charter school in Brunswick County,
North Carolina.

The uniform policy or dress code of the school

requires girls to wear skirts, skorts or jumpers and boys to wear
either pants or shorts.

All students are required to wear gym

uniforms for gym class.

Failure to comply with the policy results

in disciplinary measures.
Plaintiffs bring this action challenging the fact that girls
are not allowed to wear shorts or pants because ·they are girls.
Plaintiffs

seek

declaratory

and

injunctive

relief,

along

with

nominal damages and attorney fees under Title IX and the North
Carolina

and

United

States

Constitutions.

defendants Charter Day School,
Academy,

Inc.

("RBA")

are

in

Inc.

("CDS")

breach

of

They

also

assert

and The Roger Bacon
contracts,

of

which

plaintiffs are third-party beneficiaries. 1
Plaintiffs do not challenge the school's authority to impose
a uniform policy or argue that uniform policies in general are
unlawful.

Rather,

here,

plaintiffs challenge the specific sex-

based requirement that girls must wear skirts, skorts or jumpers

The amended complaint alleges CDS and RBA are linked "by a complex
interconnecting set of personal, corporate and operational relationships."
Am. Compl. ~111 [DE #13].
This relationship is detailed in the amended
complaint, noting Baker Mitchell is the current secretary of CDS and the
owner of RBA.
Mr. Mitchell filed the application with the State Board of
Education for a charter.
In 2005, CDS entered into an agreement with RBA for
management and facility services.
1

2

and are not allowed to wear pants or shorts.
this
what

requirem~nt

constitutes

subjects them to archaic sex stereotypes about
appropriate

behavior

reinforcing the notion that girls,
behave modestly,

Plaintiffs allege

and

conduct

for

girls,

but not boys, must dress and

that they are less· physically active than boys

and that they should behave and dress in a manner that is otherwise
traditionally considered appropriately feminine.

As

a

result,

they have refrained or been prevented from engaging in certain
physical activities, including climbing gym structures, sliding on
a slide,

swinging from monkey bars,

and doing cartwheels.

They

claim these requirements burden them with restrictions on their
comfort,
suffer

warmth,
and

therefore

discrimination.
claims.

and freedom of movement that the boys do not
the

Defendants

policy
have

constitutes

moved

to

unlawful

dismiss

sex

plaintiffs'

Appropriate responses and replies have been filed,

and

this matter is ripe for adjudication.
COURT'S DISCUSSION

I.

Standard of Review

A federal district court confronted with a motion to dismiss
for failure to state a claim should view the allegations of the
complaint in the light most favorable to the plaintiff.

See Ibarra

v. United States, 120 F.3d 472,

The intent

of

Rule

12 (b) ( 6)

is

to

test

474
the

3

(4th Cir. 1997).
sufficiency

of

a

complaint.

Edwards v. City of Goldsboro, 178 F.3d 231, 243

(4th Cir. 1999).

A Rule 12(b) (6) motion "'does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.'"
Id.

(quoting Republican Party v. Martin,

Cir. 1992)).
be

952

(4th

"[O]nce a claim has been stated adequately, it may

supported by

showing

any

set

allegations in the complaint."
550

980 F.2d 943,

of

facts

consistent

Bell Atlantic Corp.

with

v.

the

Twombly,

u.s. 544, 563 (2007).
"[A] complaint need not 'make a case' against a defendant or

'forecast evidence sufficient to prove an element' of the claim."
Chao v. Rivendell Woods,
(quoting Iodice v.
2002)).

Inc.,

415 F.3d 342, 349

United States,

289

(4th Cir. 2005)

F.3d 270,

281

(4th Cir.

Rule 8 of the Federal Rules of Civil Procedure provides

"for simplicity in pleading that intends to give little more than
notice to the defendant of the plaintiff's claims and that defers
until after discovery any challenge to those claims insofar as
they rely on facts."

Teachers'

F.3d 162, 170 (4th Cir. 2007).

Ret.

Sys. of La. v. Hunter,

477

A complaint is generally sufficient

if its "'allegations are detailed and informative enough to enable
the defendant to respond.'"
Charles

Alan

Procedure,

§

Wright
1215

at

&

Arthur
193

(3d

Chao,
R.
ed.

415

F.3d at

Miller,
2004)).

349

Federal
Thus,

(quoting 5

Practice
a

and

complaint

satisfies the Rules if it gives "fair notice" of the claim and

4

"the grounds upon which it rests."

Twombly,

550 U.S.

at 554-55

(internal quotation marks omitted).
II.

Equal Protection Claims

Defendants move to dismiss plaintiffs' claims under the Equal
Protection Clause
"The

equal

protects

( "EPC")

protection

of the United States Constitution.

clause

of

against

individuals

the

Fourteenth

Amendment

intentional,

arbitrary

discrimination by government officials." Hayden ex rel. A.H. v.
Greensburg

Cmty.

Sch.

Corp.,

743

F.3d

2014) (quoting Village of Willowbrook v.
564,

120

S.Ct.

1073,

1074-75,

145

569,
Olech,

577

(7th

Cir.

528 U.S.

562,

L.Ed.2d 1060

(2000)

(per

curiam) .
Defendants argue plaintiffs have not alleged a violation of
Defendants first argue that because

a constitutional right.

plaintiffs voluntarily chose to attend the school
charter school)

(as it is a

and were informed of the uniform policy prior

to enrollment, they cannot now claim they have been unlawfully
discriminated against.

Defendants cite no law to support this

waiver argument and do not dispute that charter schools are
statutorily-defined public schools.
218 .15;

see Yarbrough v.

F.Supp.3d 331,

337

N.C.

Gen.

Stat.

§

115C-

East Wake First Charter School,

(E.D.N.C.

2015).

Additionally,

108

they argue

the alleged harms are "self-imposed" and can be prevented by
5

wearing a skort or wearing leggings under a skirt or jumper,
both allowed by the uniform policy.

Defendants cite no legal

authority to support this argument either, and the court finds
this

argument

is,

in

reality,

a

factual

contention

more

appropriate for consideration at a later stage of litigation.
Whether plaintiffs' evidence can prove the harms alleged is not
at issue on the motion to dismiss.
Next,

defendants argue the uniform policy is not based on

impermissible sex stereotypes, referencing the written purpose
of the uniform policy in the CDS Handbook.

In this section of

their brief, defendants note that North Carolina allows charter
schools to operate single-sex educational facilities.

Noting

this statute, defendants argue that because plaintiffs' alleged
harms would fail as a matter of law at a single-sex school, they
automatically fail here.

Once again,

defendants cite no case

law to support this argument, and the court finds this argument
to be irrelevant to whether 'plaintiffs have alleged a
sufficient to survive a motion to dismiss.

claim

"Whether and when

the adoption of differential grooming standards for males and
females

amounts

to

sex

discrimination

is

the

subject

of

a

discrete subset of judicial and scholarly analysis." Hayden,
743 F.3d at 577 (citing numerous cases involving allegations of
sex discrimination regarding dress codes).

6

Finally,

defendants

argue

courts

traditionally

have

and

should refrain from regulating the day-to-day issues presented
in local schools, citing Epperson v. Arkansas, 393 U.S. 97, 104
(1968).

While this court agrees day-to-day issues presented in

local schools are best left to local school authorities, it is
well established that children do not "shed their constitutional
rights

at the schoolhouse gate."

Independent Community School Dist.,
Here,
are

Tinker v.

393 U.S.

503,

Des Moines
506

(1969).

plaintiffs have alleged that defendants promulgated and

enforcing

skirts,

a

uniform policy that

and on its face,

requires

girls

to

wear

treats girls differently than boys.

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

unconstitutional sex discrimination.

enforcement

constitute

Plaintiffs have alleged

enough facts to state a claim under the Equal Protection Clause
Finding inadequate support for

of the Fourteenth Amendment. 2

2

The court notes it is not yet deciding what standard applies to plaintiffs'
claim and specifically whether the claim rises to the level required for
intermediate scrutiny. See Sturgis v. Copiah County School Dist., 2011 WL
4351355 (S.D. Miss. 2011).
This court notes that "sex-differentiated
standards consistent with community norms may be permissible to the extent
they are part of a comprehensive, evenly~enforced grooming code that imposes
comparable burdens on both males and females alike." Hayden, 743 F.3d at 581.

7

defendants' arguments in their brief, the motion to dismiss the
EPC claims is DENIED.
As

to

plaintiffs'

claims

under

the

North

Carolina

Constitution, defendants' motion to dismiss does not thoroughly
address this issue.
there

are

In their reply brief, defendants argue that

adequate

Constitutional claim.

state

remedies

However,

the

NC

since plaintiffs have not had

an opportunity to fully respond,
before the court.

precluding

this

issue is not properly

Defendants may raise this issue in a motion

for summary judgment, if so desired.
Therefore, plaintiffs' EPC claims under the United States and
North

Carolina

Constitutions

survive

defendants'

motion

to

dismiss.
III.

Title IX Claims

Title IX provides:

"[n]o 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. Preston v. Virginia ex rel. New River
Cmty. Coll., 31 F.3d 203, 206 (4th Cir.1994)
Univ. of Chicago,
560

( 1979)) .

441 U.S.

"Title

IX

677, 680,
has
8

no

(citing Cannon v.

99 S.Ct. 1946, 60 L.Ed.2d
administrative

exhaustion

requirement and no notice provisions. Under its implied private
right

of

action,

plaintiffs

can

file

directly

in

court [.]"

Fitzgerald v. Barnstable Sch. Cornrn., 555 U.S. 246, 255, 129 S.
Ct.

788,

795,

172 L. Ed.

2d 582

(2009).

The court notes that

not all distinctions on the basis of sex are impermissible under
Title IX. See, e.g., 20 U.S.C. § 1686 (allowing separate 'living
facilities for different sexes); see United States v. Virginia,
518

U.S.

515,

differences

533,

116

between

S.Ct.

2264,
and

men

2276

(1996)

women,

("Physical
are

however,

enduring.") (quoting Ballard v. United States, 329 U.S. 187, 193,
67 S.Ct. 261, 264

(1946).

To allege a Title IX claim,

plaintiffs must show

(1)

they

were excluded from participation in, denied the benefits of, or
subject to discrimination of an educational program or activity;
(2)

that

financial

the

educational

assistance

institution

at

discrimination caused harm.

the

time;

was

receiving

and

(3)

federal

that

the

In this circuit, courts have looked

to Title VII cases as guidance for Title IX cases.

Jennings v.

Univ. of N.C., 482 F.3d 686, 695 (4th Cir.2007).
The parties argue at length about the appropriate regulations
applicable to this case and about their validity.

However, the

court finds that there is no need to reach those issues at this
stage of the litigation.

Plaintiffs have alleged facts of each

of the above elements sufficient to survive a motion to dismiss.
9

Whether plaintiffs'

evidence will bear out these allegations

and how the discussed regulations affect the analysis are issues
better suited for a later stage of litigation.

The court desires

to give proper deference to the proper regulations, but cannot do
so on the record before it.
The

court notes

the

revocation of the

regulations

regarding

personal appearance codes by the Department of Education ("USED")
in

1982.

Nondiscrimination on

Programs

and

Financial

Activities

Assistance,

Department

Basis

Receiving

47

(codified at 34 C.F.R.

the

Fed.

§§

of

Reg.

("USDA")

Sex

Benefiting
32526-02

106.31(b)).

of Agriculture

of

in Education
From

(July

Federal

28,

1982)

The court also notes the

implementing

regulations

do

contain a prohibition against "discriminat[ing] against any person
in
§

the

application

15a. 31 (b) (5).

adopted

the

of

any

Further,

Title

IX

of' appearance."

7

C.F.R.

USED and many other federal agencies

Common Rule

Nondiscrimination

12,250.

rules

on

pursuant

the

Basis

of

to

Executive

Sex

in

Order

Education

Programs or Activities Receiving Federal Financial Assistance, 65
Fed. Reg. 52,858, 52,859 (Aug. 30 2000)
locations) .

It does not appear the USDA was one of the agencies

which adopted the Common Rule.
before

it,

(codified at 22 different

determine

the

The court cannot,

proper

applicability

on the record
of

the

USDA

regulations and how that affects the analysis of plaintiffs' Title
IX claims.

See 2 0 U.S. C.

§

1681
10

(administrative enforcement of

Title

IX).

Therefore,

defendants'

motion

is

DENIED

WITHOUT

PREJUDICE·as to plaintiffs' Title IX claims.
IV.

Statute of Limitations

Defendants next argue that plaintiffs I.B. and K.B.'s breach of
contract claims and 42 U.S.C.

§

1983 claims are time-barred because

they have been students at the school for more than three years.
Defendants argue the statute of limitations is three years and
that plaintiffs knew or should have known about the uniform policy
when they enrolled.
I.B.

and K.B.

In their response, plaintiffs argue because

are minors,

the statute of limitations is tolled.

In their reply, defendants argue K.B.'s legal guardian failed to
bring her claims during the statutory timeframe.

The court assumes

defendants are conceding the statute of limitations argument as to
I.B. because of tolling.

As to K.B., tolling is irrelevant as to

the constitutional claims, as plaintiffs have alleged an ongoing
See Virginia Hosp. Ass'n v.

Constitutional violation.

868 F.2d 653, 663 (4th Cir. 1989).
that

even if the

continuing

Furthermore, plaintiffs contend

plaintiffs. were not minors

violation,

their

Baliles,

breach

of

and subject

contract

claim

to

a

against

defendants would not be time-barred because the Charter Agreement
was

entered

into

in

2015,

and

the

Operational

Documents

incorporated into the CDS Management Agreement did not include the
requirement

that

CDS

Inc.

comply

constitutions until June of 2015.
11

with

the

federal

and

state

At the motion to dismiss stage,

defendants have not shown plaintiffs'
statute of limitations.
whether

plaintiffs

claims are barred by the

The court does not yet reach the issue of

are

third-party

beneficiaries

under

the

contracts at issue.
V.

Board Members

Finally,

defendants argue the board members as defendants are

unnecessary parties to this action and should be dismissed with
prejudice.
statutes

Plaintiffs respond in opposition, noting the operative

provide

that

the

board

of

directors

of

a

non-profit

charter school can be sued and that the board members implement
school policy, meaning they are responsible for the uniform policy.
Furthermore,

NC

Gen.

Stat.

§

115C-218.20(a)

provides

for

the

purchase of indemnification insurance for the board of directors
Therefore,

of a charter school.

defendants'

argument fails

at

this stage of litigation.
Finally,

defendants

argue the board members

being sued for money damages under§ 1983.
charter

schools

are public

schools

are

immune

from

While the court agrees

under state

law,

this

fact

standing alone does not mean that the directors of the non-profit
corporatien who

has

a

charter with the

state to

run a

public

charter school are entitled to Eleventh Amendment immunity as state
officials

acting in their official

capacities.

Vernon, 101 F.3d 334, 338 (4th Cir. 1996).

12

See Harter v.

Defendants have failed

to support this argument with adequate case law;

therefore,

the

For the foregoing reasons, defendants' motion to dismiss

[DE

motion is denied.
CONCLUSION

#27] is DENIED.
Pursuant to Local Civil Rule 101.2, EDNC, and Rules 16 and 53
of the Federal Rules of Civil Procedure, the court ORDERS a courthosted settlement conference as to all claims in this matter.
United States Magistrate Judge Robert B. Jones, Jr. is hereby
appointed as settlement master.

Magistrate Judge Jones is directed

to meet with the parties and supervise negotiation's, with an aim
toward reaching an amicable resolution of the issues.

Magistrate

Judge Jones is given full authority to establish such rules as he
may desire,

which

shall be binding upon the parties

counsel during the course of the conference.

and their

The conference will

be conducted at a time and place selected by Magistrate Judge Jones
upon notice to the parties.
This

Jo

r.ll

~day of March 2017.

istrict Judge
At Greenville, NC
#26

13