Religious groups to Supreme Court: Skirts-only decision imperils food pantries, hospitals

(Reuters) - It’s not just about the skirts.

A prospective U.S. Supreme Court case about a North Carolina charter school dress code that bars girls from wearing pants could have vast consequences for social services ranging from food pantries and homeless shelters to aid for refugees and even emergency health care, according to two new amicus briefs from religious organizations.

The briefs – one from the Notre Dame Law School Religious Liberty Clinic on behalf of itself and Jewish and Islamic religious freedom groups, the other from former U.S. Solicitor General Noel Francisco of Jones Day on behalf of Catholic Charities of the Diocese of Arlington, Inc – argue that the en banc 4th U.S. Circuit Court of Appeals adopted far too loose a test when it deemed North Carolina’s Charter Day School Inc a state actor subject to claims under the U.S. Constitution’s Equal Protection Clause.

Unless the Supreme Court steps in to reverse the 4th Circuit’s test, the amicus briefs said, faith-based groups that receive public funds and work with governments to provide essential social services could, like the North Carolina charter school, be considered state actors. That designation, the briefs argued, would put the groups at a dramatically higher risk of lawsuits alleging violations of the constitution’s Due Process, Equal Protection and Establishment Clauses, because such claims can only be brought against private groups if they are acting as arms of the state.

The increased litigation risk, the Notre Dame brief argued, will, in turn, force religious groups that receive public funding for essential social services to choose “between denying the religious identity of their charitable programs or ending them.”

Many groups, the brief predicted, will opt to end their charitable work – with disastrous consequences. “Communities across the country depend on a multitude of faith-based groups to provide vital services related to child welfare, healthcare, shelter and much more,” the Notre Dame clinic said. “If religious organizations are required to retreat from public service, these resources will be lost to those who need them most.”

The amicus briefs unquestionably offer the Supreme Court a new perspective on the charter school case. As I’ve previously told you, the school’s petition for Supreme Court review focused on the consequences of the 4th Circuit decision for the charter school movement, arguing that the appellate court’s determination that Charter Day is a state actor will diminish educational innovation and undermine parents’ rights to choose alternative schools for their kids.

That framing, I said, would likely attract attention from the Supreme Court’s conservatives. But I’d guess that the new amicus briefs – by asserting that the 4th Circuit ruling will have consequences far beyond education – greatly improve the odds that the justices will grant review.

“These briefs leave the court with no doubt as to the importance of this case — not just for charter schools, but for all private institutions that partner with the government to provide important social services,” said Charter Day counsel Aaron Streett of Baker Botts.

The ACLU, which represents the parents who challenged Charter Day’s no-pants dress code for girls, said in an email statement that the religious groups’ arguments are overblown. “When it comes to state action, context matters,” said Ria Tabacco Mar, director of the ACLU’s women’s right project. “The 4th Circuit recognized that Charter Day School, a public charter school in North Carolina, was a state actor when it implemented its archaic ‘skirts only’ rule for girls. There’s no reason to believe that decision will upend the operations of nonprofit organizations that receive government funding.”

Indeed, Mar added, it’s been three years since a trial court determined that Charter Day was a state actor when it adopted a discriminatory dress code and neither charter schools nor other nonprofits providing public services have shut down as a result of the decision.

Law professor John Meiser, who supervises the Notre Dame religious liberty clinic, told me the group wanted to call the Supreme Court's attention to the potential impact of the case on faith-based social services providers.

“It’s important to protect innovation and decentralization on the education side,” Meiser said. “It’s equally or even more important not to have a [state actor] doctrine that would eradicate private charitable networks.” (Meiser said his group has no stance on Charter Day's skirts-only dress code.)

The school, which says that it teaches students "traditional" values has said the now-suspended policy was intended to encourage respect for girls. The ACLU provided the 4th Circuit with ample evidence that the dress code perpetuated archaic and pernicious gender stereotypes.)

In our conversation, Meiser also emphasized his brief’s argument that the 4th Circuit decision threatens to erode recent Supreme Court precedent interpreting the Free Exercise Clause, which protects the private right to practice religious beliefs as long as those beliefs do not interfere with government interests. That case law includes the court's 2021 ruling in Fulton v. City of Philadelphia, which held that Philadelphia violated the constitution in blocking a Catholic group from providing foster care services because the group refused to place children with same-sex foster parents.

A state that is “hostile to religious organization,” the Notre Dame brief said, could use the 4th Circuit’s expansive state actor test to “reopen the door” to discrimination by designing programs that would subject faith-based charities to claims of violating the Establishment Clause, which precludes the government from a particular religion.

The Catholic Charities brief made the same point, listing Fulton and three other recent cases in which the Supreme Court barred states from discriminating against religious groups or schools. All of those cases, the Catholic Charities brief said, involved groups that received public funds or fulfilled state duties. Yet no one ever suggested during the litigation of those cases that the religious organizations were state actors, the amicus brief said.

Of course, the Supreme Court will only get to dig into arguments about the purported disconnect between its Free Exercise precedent and the 4th Circuit’s Charter Day decision if the justices grant review of the school’s case.

But as I said, I suspect the amicus briefs will help persuade at least four justices that that’s exactly what they should do.

Read more:

Skirts-only charter school seeks Supreme Court review in latest SCOTUS culture war

In ‘skirts only’ school case, 4th Circuit says innovation great, inequality ain’t

U.S. Supreme Court backs Catholic group that shunned gay foster parents

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