Last year there was a major decision from the 4th Circuit that emphasized the high burden schools face in efforts to justify any distinction in a school dress code based on sex. That was Peltier v. Charter Day School, Inc., which was Daily Dawged on August 29, 2022. Today, some follow up.
SCOTUS declined the opportunity to consider the Peltier decision, so it stands as a high level court ruling holding that 1) Title IX applies to your dress code; and 2) any distinction based on sex must be justified by an “exceedingly persuasive case” to the effect that the distinction serves an “important governmental objective.” The case has now been returned to the district court which will determine if the charter school can satisfy that standard. Or the case might settle.
Meanwhile there is a federal court decision from Colorado that many Texas districts will want to rely on in the event of a challenge. It involved a five-year old boy in the Rocky Mountain Classical Academy charter school. The court described the little guy as “simply a boy who wants to wear earrings at school as a matter of personal preference.” The school tolerated this for several months, while repeatedly warning the parents that boys were not allowed to wear earrings at school.
Tolerance ended in December when the school first suspended and then “disenrolled” the student. That’s when he became John Doe: Plaintiff, alleging that the dress code violated Title IX and the Equal Protection Clause.
Nope. The court held that dress codes that draw distinctions between boys and girls are not automatically discriminatory. Instead, the test was one of “comparable burdens.” Key Quote:
So long as the burdens of the dress code on both sexes are comparable and evenly enforced, the fact that there are different rules for each sex does not amount to sex discrimination.
The court noted that the girls in the charter school “have a few more options than boys when it comes to dresses, capris, earrings, and haircuts” but that this is “simply a reflection of the community norms for what constitutes a traditional conservative appearance for boys and girls.”
It’s Doe v. Rocky Mountain Classical Academy, decided by the federal court in Colorado on September 30, 2022. It’s located at 2022 WL 16556255. And it’s headed to the 10th Circuit.
Meanwhile, the OCR ignores the “comparable burdens” test in favor of a simpler approach. Here’s a quote from a Resolution Agreement OCR made with a Pennsylvania district:
There is no dispute that the District currently employs a dress code that prohibits male but not female students from wearing earrings. Thus, through the enforcement of the dress code policy, the District engages in prohibited discrimination by treating male students less favorably than female students with regard to the use of jewelry. July 5, 2022: Wayne Highlands School District, Pennsylvania.
So where are we? I offer four points to ponder:
- This issue will continue to draw a lot of interest from advocacy groups. There were approximately a gazillion friend of the court briefs in the 4th Circuit case. If you make distinctions in your dress code based on sex, don’t be surprised if you end up in litigation.
- If it goes to the OCR it’s pretty clear what the decision will be.
- If it goes to court, it’s not so clear. It will be interesting to see what the 10th Circuit decides in the Rocky Mountain case, and you can count on reading about it in the Daily Dawg.
- School administrators have to enforce the dress code the district adopts. School board members who approve those dress codes need to ask themselves the Old Question: Is this worth fighting over?
DAWG BONE: STAY TUNED!
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Tomorrow: LRE and the neighborhood school….