Lawsuit over Colorado charter school’s dress code should be reconsidered, court rules

A view of the Byron White U.S. Courthouse, base of the U.S. Court of Appeals for the Tenth Circuit, in downtown Denver. (Google Maps)

A federal appeals court in Colorado on Tuesday overturned a lower court ruling that dismissed a lawsuit brought against Rocky Mountain Classical Academy in Colorado Springs. The lawsuit, brought by a student and his mother, claimed that the school’s dress code policy of allowing girls but not boys to wear earrings violated a student’s 14th Amendment equal protection rights.

The unanimous decision, which could have far-reaching implications for dress codes that treat girls and boys differently, came from three judges on the 10th U.S. Circuit Court of Appeals. Judge Joel Carson, appointed to the court by former President Donald Trump in 2017, wrote that the lower court was wrong to rule that, because the code imposed a “comparable burden” on male and female students, the school’s policy wasn’t discriminatory.

“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,” wrote Carson. “In this case, a Colorado charter school urges us to replace that test with another. We decline the invitation.”

Carson stated courts must evaluate sex-based classifications under an “intermediate scrutiny” standard. This test means that to impose a sex-based policy, the government entity must have an “exceedingly persuasive justification” for the rule or prove that it serves an “important governmental objective.”

“Passing intermediate scrutiny is far more difficult than proving a comparable standard, which says a sex-based policy doesn’t violate the equal protection clause if it imposes similar burdens on boys and girls,” said Igor Raykin, attorney for the family that sued the school. “This is why the Supreme Court hasn’t ever adopted it.”

This decision will ensure that schools that try to pass dress codes restricting transgender kids from wearing whatever they want will be fighting a losing battle.

– Igor Raykin, attorney for the family that sued the school

Raykin acknowledged that when the family filed the lawsuit in 2019, attacks against policies that protect students from gender identity discrimination weren’t on the national radar. The then-5-year-old plaintiff, listed as John Doe in the case, had been repeatedly disciplined, and the parents hoped to file an injunction so their son could stay at the school.

“Although our client is not transgender, he’s just a little boy who likes to wear earrings, this decision will ensure that schools that try to pass dress codes restricting transgender kids from wearing whatever they want will be fighting a losing battle,” Raykin said.

“So if there is a school somewhere out there that says boys can’t wear skirts and girls can, the courts will look to this ruling. They’ll have to prove that the sex-based classification serves an important governmental objective. Good luck with that,” said Raykin.

The case will return to the U.S. District Court of Colorado, where the school can argue whether its dress code policy justification is “exceedingly persuasive” or the dress code’s treatment of boys is “substantially related” to its objectives.

It’s unclear how much the school has spent on its legal defense, but Raykin noted it must be substantial. Should the school lose its case upon return to the lower court, Raykin said there is a provision where the school could be made to pay his attorney fees.

Rocky Mountain Classical Academy could also appeal the decision to the U.S. Supreme Court or drop the case and change the dress code policy.

Rocky Mountain Classical Academy declined to comment on the court’s ruling.

The post Lawsuit over Colorado charter school’s dress code should be reconsidered, court rules appeared first on Colorado Newsline.