Left: A sign at Rocky Mountain Classical Academy in Colorado Springs, CO is shown (Screengrab via WPVI); Right: In a photo from Wednesday, Aug. 19, 2020, ear piercing during the pandemic is shown. (AP Photo/Carlos Osorio)
A federal appeals court ruled Tuesday to resurrect a lawsuit filed on behalf of a kindergartner who was expelled for wearing little blue earrings to school.
Rocky Mountain Classical Academy in Colorado Springs is a K-8 charter school. It has a dress code, some portions of which apply only to girls and others only to boys. One aspect of the gender-specific dress code is that girls are permitted to wear small earrings to school, but boys are banned from wearing earrings at all.
According to the code:
Tattoos and body piercings, other than girls’ earrings, are not allowed. Earrings must be limited to one earring per ear. Large, dangling, or hoop-type earrings are not allowed. Jewelry other than watches for boys or girls, and small earrings on girls, may not be worn.
In 2019, the mother of a student identified as “John Doe” sued the school and some of its administrators for sex discrimination after her 5-year-old son was expelled for wearing earrings to school and failing to follow the dress code. The mother said her son wore “small, blue stud earrings” that she said were consistent with the dress code policy for girls, according to the ruling.
She also said that prior to her son’s expulsion, she attempted to raise concerns over the dress code with the school and the school board on multiple occasions, but to no avail.
In 2022, Donald Trump-appointed U.S. District Judge Daniel D. Domenico threw out the mother’s lawsuit finding that the school’s dress code “imposes comparable burdens on students of both sexes,” and is therefore not discriminatory. The mother appealed to the U.S. Court of Appeals for the Tenth Circuit and a unanimous three-judge panel reversed Domenico’s ruling in a brief ruling.
U.S. Circuit Judge Joel Carson, another Trump appointee, wrote for the panel, which also included U.S. Circuit Judges Harris Hartz, a George W. Bush appointee, and Carolyn McHugh, a Barack Obama appointee.
Carson said that Domenico should not have applied a “comparative burdens” test to the case.
“For the last forty-seven years, the Supreme Court has recognized only one test for determining whether a sex-based classification violates the right to equal protection under the Fourteenth Amendment,” Carson said, referring to the intermediate scrutiny analysis applicable to claims of sex discrimination.
“In this case, a Colorado charter school urges us to replace that test with another,” Carson continued. “We decline the invitation.”
Carson refused to speculate about what the results would be if an intermediate scrutiny analysis is applied to the facts asserted, but rather, remanded the case to the district court to apply the correct standard. As the judge reminded, intermediate scrutiny requires the state actor to prove that it had an “exceedingly persuasive” reason for applying gender-based distinction, and that the distinction was “substantially related” to its objectives. Carson also noted that whatever the school’s objectives were for allowing girls to wear earrings while prohibiting boys from doing so was “at this point unstated.”
In addition to dismissing the underlying discrimination claim, the district court also dismissed the mother’s claim for unlawful retaliation under Title IX. The panel upheld that dismissal, finding that the plaintiff had not sufficiently pleaded that the school retaliated against the child because he complained of sex discrimination.
“This decision gives this little boy and his family an opportunity to right a wrong that was done to them,” said Igor Raykin, attorney for the plaintiffs. “This child should have never been forced out of school for something so petty, and the school should have devoted its resources properly to books, technology paying its staff properly instead of a senseless fight over earrings.”
Rocky Mountain Classical Academy declined Law&Crime’s request for comment.
Editor’s note: This piece was modified from its original version to include comment from counsel.
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