Doe v. Rocky Mountain Classical Academy

Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 30, 2024 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ JOHN DOE, through his mother and next friend Jane Doe, Plaintiff - Appellant, v. No. 22-1369 ROCKY MOUNTAIN CLASSICAL ACADEMY; NICOLE BLANC, individually and in her official capacity as Dean of Students of Rocky Mountain Classical Academy; CULLEN MCDOWELL, individually and in his official capacity as Executive Principal of Rocky Mountain Classical Academy, Defendants - Appellees. _________________________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-03530-DDD-STV) _________________________________ Igor Raykin, Kishinevsky & Raykin, Attorneys at Law, Aurora, Colorado (Michael Nolt, Kishinevsky & Raykin, Attorneys at Law, Aurora, Colorado, with him on the briefs) for Plaintiff-Appellant.

Eric V. Hall, Sparks Willson, P.C., Colorado Springs, Colorado for Defendants- Appellees. _________________________________ Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________ CARSON, Circuit Judge.

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

Like many schools, Rocky Mountain Classical Academy (“RMCA”) maintains a dress code. Some provisions of this dress code apply only to boys; some only to girls. Plaintiff John Doe claims RMCA unlawfully discriminates on the basis of sex by prohibiting boys from wearing earrings. Plaintiff also contends that RMCA violated Title IX by retaliating against him for complaining of sex discrimination.

Borrowing principles of Title VII law, the district court dismissed Plaintiff’s claims because the dress code imposes comparable burdens on boys and girls. But by applying the comparable burdens test instead of intermediate scrutiny, the district court departed from the unambiguous directive of the Supreme Court. We therefore exercise jurisdiction under 28 U.S.C. § 1291 and reverse the district court’s dismissal of Plaintiff’s sex discrimination claims. We affirm the dismissal of Plaintiff’s retaliation claim.

I.

RMCA is a public charter school serving students in grades K–8 in Colorado Springs. Consistent with a Colorado law requiring that all public schools establish a dress code, Colo. Rev. Stat. § 22-32-109.1(2)(a)(J), RMCA adopted a comprehensive dress code that applies to all students.

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Plaintiff enrolled in RMCA’s kindergarten. While attending, Plaintiff wore small, blue stud earrings, prompting Plaintiff’s teacher to remind Plaintiff’s mother that, “per our dress code, boys [cannot] wear earrings at school.” The teacher was correct. Because Plaintiff is a boy, his earrings violated RMCA’s dress 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. This includes bracelets. Bracelets are not allowed. Official RMCA bracelets are allowed to be worn. (emphasis added). Having received this notice, Plaintiff’s mother emailed members of the RMCA Board and suggested that the dress code constituted unlawful sex discrimination. But the Board disagreed, and because Plaintiff continued to wear earrings, RMCA suspended and disenrolled Plaintiff.

Plaintiff sued Defendants in the District of Colorado and sought a preliminary injunction, alleging RMCA violated his Fourteenth Amendment equal protection rights and statutory rights under Title IX. The district court denied Plaintiff’s request for an injunction, and Defendants moved to dismiss. The district court granted Defendants’ motion, determining that Plaintiff did not state a plausible sex discrimination claim under either the Equal Protection Clause or Title IX and did not state a plausible Title IX retaliation claim. Plaintiff timely appealed.

II.

We review de novo a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6). Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). In Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 4 examining a complaint under Rule 12(b)(6), we “disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.”1 Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

III.

On appeal, Plaintiff contends the district court erred by dismissing his 42 U.S.C. § 1983 equal protection and 20 U.S.C. § 1681(a) Title IX claims.

A.

For Plaintiff to prevail on his § 1983 equal protection claim, he must show “(1) deprivation of a federally protected right by (2) an actor acting under color of state law.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) (citing D.T. ex rel. M.T. v. Indep. Sch. Dist. No. 16, 894 F.2d 1176, 1186 (10th Cir. 1990)). Both parties agree that RMCA is a state actor. So this issue hinges solely on whether Defendants deprived Plaintiff of a right guaranteed by the Fourteenth Amendment’s Equal Protection Clause.2

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The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In considering whether a state actor violates the Equal Protection Clause, courts “apply different levels of scrutiny to different types of classifications.” Clark v. Jeter, 486 U.S. 456, 461 (1988). For example, while all statutory classifications must be rationally related to a legitimate government purpose, classifications based on race or national origin—or affecting fundamental rights—are subject to strict scrutiny. Id. (citing Loving v. Virginia, 388 U.S. 1, 11 (1967)). Between rational basis review and strict scrutiny “lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex.” Id. (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723–24, 724 n.9 (1982); Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976); Mathews v. Lucas, 427 U.S. 495, 505–06 (1976)).

Intermediate scrutiny is not a new standard, and its application is clear in both Supreme Court and Tenth Circuit precedent: courts must evaluate sex-based classifications under intermediate scrutiny. See United States v. Virginia, 518 U.S. 515, 524 (1996) (citing Hogan, 458 U.S. at 724); Free the Nipple-Fort Collins v. City otherwise qualify as a state actor for equal protection. See, e.g., 303 Creative LLC v. Elenis, 600 U.S. 570, 598 n.5 (2023) (accepting the parties’ stipulation on an otherwise unresolved issue of law).

Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 6 of Fort Collins, Colorado, 916 F.3d 792, 799 (10th Cir. 2019).3 To survive intermediate scrutiny, the Government must provide a justification for the sex-based classification that is “exceedingly persuasive,” and that classification must serve “important governmental objectives” through means “substantially related to” achieving those objectives. United States v. Virginia, 518 U.S. at 524 (citing Hogan, 458 U.S. at 724); accord Free the Nipple-Fort Collins, 916 F.3d at 799. RMCA employs a sex-based classification: girls can do something boys cannot.

Accordingly, our established precedent required the district court to analyze the dress code’s constitutionality under the intermediate scrutiny framework.

But the district court did not analyze RMCA’s sex-based classification under the traditional intermediate scrutiny framework.4 Instead, the district court applied Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 7 the “comparable burdens” test adopted by the Seventh Circuit in Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 581 (7th Cir. 2014). According to the Seventh Circuit, employers may impose sex-specific dress codes—without violating Equal Protection—if the codes impose “comparable burdens on both males and females alike.” Id. Because the district court found RMCA’s dress code imposed comparable burdens, the district court determined it did not need to analyze RMCA’s sex-based classification under intermediate scrutiny.5 Doe v. Rocky Mountain Classical Acad., No. 1:19-CV-03530, 2022 WL 16556255, at *5 (D. Colo. Sept. 30, 2022).

In reviewing a Rule 12(b)(6) motion, we examine whether the complaint states a claim upon which relief can be granted, accepting all allegations as true and construing all inferences in the light most favorable to the nonmovant. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007). The district court concluded

724). Insofar as the district court wished to defer to school policies, it needed to do so within the confines of intermediate scrutiny.

Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 8 it could not grant Plaintiff relief because RMCA imposed comparable burdens on girls and boys. Doe, 2022 WL 16556255, at *5. But viewing Plaintiff’s complaint through the proper lens of intermediate scrutiny, we hold that Plaintiff has stated a claim upon which relief can be granted because the Complaint does not establish that RMCA has an “exceedingly persuasive justification” for its sex-based classification or that its classification serves important governmental objectives through means substantially related to those objectives. Indeed, at the 12(b)(6) stage, RMCA never had the opportunity to make such a showing.

We do not speculate about what the results might be of a properly conducted intermediate scrutiny analysis. Until RMCA provides a justification for their sex- based classification, we cannot evaluate whether RMCA’s justification is “exceedingly persuasive” or whether the dress code’s treatment of boys is “substantially related” to their—at this point unstated—objectives. Therefore, this issue was not sufficiently developed such that a court could resolve it in favor of RMCA on a 12(b)(6) motion.6 The only issue on this appeal is whether Plaintiff stated a plausible claim upon which relief can be granted. And with respect to his Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 9

§ 1983 equal protection claim, Plaintiff did. We therefore reverse the district court’s dismissal of Plaintiff’s equal protection claim.

B.

We next consider Plaintiff’s Title IX sex discrimination and retaliation claims.

Broadly, Title IX prohibits recipients of federal education funding from discriminating on the basis of sex.7 20 U.S.C. § 1681(a).

1.

The parties agree that Plaintiff’s sex discrimination claim under Title IX is subject to the same analysis as Plaintiff’s Fourteenth Amendment equal protection claim. So, for the same reasons we reverse the district court’s dismissal of Plaintiff’s claim of sex discrimination in violation of the Fourteenth Amendment’s Equal Protection Clause, we reverse the district court’s dismissal of Plaintiff’s Title IX sex discrimination claim.8

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2.

Plaintiff also brings a Title IX retaliation claim. To state a Title IX retaliation claim, Plaintiff must allege that RMCA “retaliated against him because he complained of sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005). Plaintiff argues his allegations permit an inference that RMCA escalated the severity of his school discipline because he (and his mother) challenged the dress code. The district court disagreed, determining that the complaint permitted only one inference: that the school took disciplinary actions because of Plaintiff’s dress code violations. We agree with the district court.

Plaintiff’s complaint makes clear that each disciplinary action followed his wearing earrings in violation of RMCA’s dress code. Yet Plaintiff argues that a jury could infer the necessary causation through the proximity of the discipline to the stated concerns about the dress code. True, in other contexts, we have found a temporal nexus sufficient to state a causal connection. See, e.g., Williams v. W.D.

Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007) (Title VII); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (FMLA). But, in this case, the facts as Plaintiff alleged them 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. Simply stated, nothing in Plaintiff’s complaint

‘precise question at issue.’” Aposhian v. Barr, 958 F.3d 969, 984 (10th Cir. 2020) (quoting Chevron, 467 U.S. 837, 842 (1984)). But Defendants have not identified any ambiguity in the text of Title IX.

Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 11 permits an inference that RMCA sent home, suspended, or disenrolled Plaintiff for anything but his violation of the dress code. Plaintiff thus does not state a claim for retaliation under Title IX.

IV.

In sum, we REVERSE the district court’s order dismissing Plaintiff’s claims of sex discrimination in violation of the Equal Protection Clause and Title IX and REMAND for further proceedings. But we AFFIRM the district court’s order dismissing Plaintiff’s Title IX retaliation claim.