10th Circuit revives kindergartener’s lawsuit over expulsion for wearing earrings

DENVER (CN) — The 10th Circuit on Tuesday revived a student’s lawsuit against the Colorado school that expelled him for wearing little blue earrings to kindergarten.

Rocky Mountain Classical Academy, a K-8 charter school in Colorado Springs, allows girls to wear small earrings to school, but bans boys from donning similar accessories.

In December 2019, a mother sued the school claiming the dress code discriminated against her five-year-old son, who got his ear pierced over the summer and wanted to wear earrings to school. After finding the dress code placed similar burdens on boys and girls, a federal judge threw out the case in September 2022.

The mother and son appealed, arguing the judge applied the wrong standard.

The 10th Circuit agreed.

"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,” Circuit Judge Joel Carson wrote in an 11-page opinion. “We decline the invitation."

While the federal court dismissed the student’s lawsuit under a comparative burdens test, the 10th Circuit panel reiterated that the sex discrimination claims should be analyzed in terms of intermediate scrutiny.

"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,” explained Carson, a Donald Trump appointee.

The appeals panel did uphold the lower court’s dismissal of retaliation claims, finding the school expelled the student not for raising sex discrimination concerns, but for breaking the rule clearly written in the handbook.

“The fight was not for the right of a kindergartner to wear earrings,” the student’s attorney, Igor Raykin, told Courthouse News over the phone. “The fight was to have equal protection for any gender to dress however they want to dress and not face consequences for how they dress.”

Raykin said he hopes the case will help establish rights for transgender students who may be caught between school dress codes.

“There is no important government objective that is served by restricting the wearing of jewelry or earrings or clothes to one gender but not another,” Raykin added.

U.S. Circuit Judges Harris Hartz, appointed by George W. Bush, and Carolyn McHugh, appointed by Barack Obama, rounded out the panel.

Rocky Mountain Classical Academy did not immediately respond to a request for comment, nor did defense attorney Eric Hall of Sparks Willson in Colorado Springs.

Follow @bright_lamp

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit