By Nate Raymond

(Reuters) -The U.S. Supreme Court on Monday asked President Joe Biden’s administration to weigh in on whether the justices should decide whether a publicly funded charter school in North Carolina may have violated the rights of female students – deemed “fragile vessels” by the school’s founder – by requiring girls to wear skirts.

The justices are considering whether to hear an appeal by Charter Day School, located in the southeastern North Carolina town of Leland and operated by a private educational management company, of a lower court’s ruling that found that the dress code ran afoul of the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law.

The court, which has a 6-3 conservative majority, asked U.S. Solicitor General Elizabeth Prelogar to file a brief expressing the Biden administration’s view on the litigation and whether the Supreme Court should take up the matter.

Aaron Streett, a lawyer for the school, called the Supreme Court’s decision to seek the solicitor general’s input rather than reject its appeal a “positive sign” that “indicates that the court views this as an important case that may merit further review.”

Three female students, represented by the American Civil Liberties Union, filed a lawsuit that accused the school of violating their civil rights. The U.S. Justice Department earlier in the litigation filed a brief agreeing with the ACLU argument that the 14th Amendment applies to the school, which is state-chartered but privately run.

“Girls at Charter Day School have the same constitutional rights as their peers at other public schools – including the freedom to wear pants,” Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said in a statement.

Charter Day School, which enrolls students from kindergarten through eighth grade, emphasizes “traditional values” and has implemented a dress code that its founder, businessman Baker Mitchell, has said would “preserve chivalry” and ensure that girls are treated “courteously and more gently than boys.”

Mitchell, as explained in the lower court’s ruling, viewed chivalry as “a code of conduct” under which women are “regarded as a fragile vessel that men are supposed to take care of and honor.”

Charter schools are publicly funded but operated separately from school boards run by local governments. They usually are independently run as stand-alone entities but also can be managed by for-profit companies or nonprofit organizations running multiple schools, as in this case.

The school’s lawyers said the 2022 ruling by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals posed an “existential threat” to a conservative-backed movement to increase alternatives for parents who want their children to receive public education by expanding the numbers of charter schools.

Charter Day School argued that the 14th Amendment does not apply to it because it is a private entity, not a “state actor” like public schools operated directly by North Carolina school districts. The 4th Circuit on a 10-6 vote decided that it was a “state actor” because North Carolina delegated to the school its duty to provide free, universal education to students.

The plaintiffs argued that the dress code not only violated the 14th Amendment but also subjected them to discrimination and denial of the full benefits of their education in violation of the civil rights law Title IX, which bars sex discrimination in education. The 4th Circuit agreed regarding the 14th Amendment but did not resolve the Title IX issue.

“Courts may not subjugate the constitutional rights of these public-school children to the facade of school choice,” wrote U.S. Circuit Judge Barbara Milano Keenan in a decision joined by her fellow Democratic appointees on the 4th Circuit.

The six dissenting votes on the 4th Circuit came from Republican-appointed judges including Judge J. Harvie Wilkinson, who said the school’s “chivalric approach should neither be legally banished from the educational system, nor should it be legally imposed.”

(Reporting by Nate Raymond in Boston; Editing by Will Dunham)

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