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Doe v. Rocky Mountain Classical Academy.

No. 22-1369. 4/30/2024. D.Colo. Judge Carson. 42 USC § 1983—Fourteenth Amendment—Equal Protection—Title IX—School Dress Code—Comparable Burdens Test—Intermediate Scrutiny.

April 30, 2024

Rocky Mountain Classical Academy (RMCA) is a public charter school serving K–8 students. RMCA has a student dress code that, as relevant here, does not allow body piercings, other than girls’ earrings. Doe enrolled in RMCA’s kindergarten, and while attending school, he wore earrings. Doe’s teacher sent a note to his mother advising her that boys cannot wear earrings at school. Doe’s mother contacted the board and suggested that the dress code constituted unlawful sex discrimination. Doe then sought a preliminary injunction against RMCA, its dean of students, and its principal (collectively, defendants), alleging RMCA violated his Fourteenth Amendment equal protection rights and statutory rights under Title IX. The district court found that RMCA’s dress code imposed comparable burdens on boys and girls, so the court determined it did not need to analyze RMCA’s sex-based classification under intermediate scrutiny. The court denied Doe’s request for an injunction, and defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). The district court determined that Doe did not state a plausible sex discrimination claim under the Equal Protection Clause or Title IX and did not state a plausible Title IX retaliation claim, and it granted the motion.

On appeal, Doe contended that the district court erred by dismissing his 42 USC § 1983 equal protection claim. To prevail on a § 1983 equal protection claim, a plaintiff must show that an actor acting under color of state law deprived the actor of a federally protected right. It is undisputed here that RMCA is a state actor, so the issue was whether defendants deprived Doe of a Fourteenth Amendment equal protection right. It is well-settled that the test for determining whether a sex-based classification violates the right to equal protection under the Fourteenth Amendment is intermediate scrutiny. Here, however, the district court applied the “comparable burdens” test adopted by the Seventh Circuit in Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 581 (7th Cir. 2014), under which employers may impose sex-specific dress codes without violating equal protection if the codes impose comparable burdens on males and females. Accordingly, by applying the comparable burdens test instead of intermediate scrutiny, the district court erred. Viewing Doe’s complaint under intermediate scrutiny, he has stated a § 1983 equal protection claim upon which relief can be granted because the complaint does not establish that RMCA has a persuasive justification for its sex-based classification or that its classification serves important governmental objectives through means substantially related to those objectives. And because this matter was decided through a dismissal motion, RMCA never had the opportunity to make such showings. Therefore, this issue was not sufficiently developed such that a court could resolve it in favor of RMCA on a Rule 12(b)(6) motion.

Doe also challenged the dismissal of his Title IX sex discrimination claim. Title IX prohibits recipients of federal education funding from discriminating on the basis of sex. The parties agreed that Doe’s sex discrimination claim under Title IX is subject to the same analysis as his Fourteenth Amendment equal protection claim, so for the above-stated reasons, the district court erred in dismissing Doe’s Title IX sex discrimination claim.

Doe further contended that the district court erred in dismissing his Title IX retaliation claim. To state such claim, Doe had to allege that RMCA retaliated against him because he complained of sex discrimination. Here, Doe’s alleged facts state that he repeatedly violated the dress code, that he was repeatedly told that he needed to comply, and that, when he did not comply, his discipline increased. Therefore, the complaint permitted only one inference: that RMCA took disciplinary actions because of Doe’s dress code violations. Accordingly, Doe failed to state a claim for retaliation under Title IX, and the district court properly dismissed the retaliation claim.

The dismissal of the sex discrimination claims was reversed. The dismissal of the retaliation claim was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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