(CN) — A Colorado boy who was suspended for wearing earrings to school asked the 10th Circuit on Thursday to revive his challenge of the school's gendered dress code.
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 anything similar.
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 only standard that should be used to evaluate this case is heightened scrutiny,” argued attorney Igor Raykin on behalf of the student. “I don’t know what important government objective can be achieved by refusing to let a boy wear earrings.”
Raykin practices with the Aurora firm Kishinevsky & Raykin.
U.S. Circuit Judge Harris Hartz, appointed by George W. Bush, asked what interest was violated by a boy being denied the ability to wear earrings to school.
“What is the interest infringed?” Hartz asked. “You can still go to school, you can participate in sports."
Hartz pressed Raykin when he said the interest was equal protection. Raykin expanded to say freedom of expression was infringed.
“So the girls can express themselves and the boys can’t?” Hartz asked. “Courts have been pretty ginger about telling schools they can’t restrict expression.”
Raykin replied that the school is welcome to restrict earrings for everyone, just not based on sex. When Hartz suggested a comparable standards test might best parse out that argument, Raykin explained that the school’s dress code failed under the test.
“The point of jewelry is to draw attention to yourself, to make yourself look prettier or more attractive, and that’s something girls are allowed to do, but boys are not,” Raykin argued.
On behalf of Rocky Mountain Classical Academy, attorney Eric Hall asked the court to affirm the lower court's use of the comparable burdens test and its dismissal of the case.
Hall practices with the Colorado Springs firm Sparks Willson.
Barack Obama-appointed U.S. Circuit Judge Carolyn B. McHugh and Donald Trump-appointed U.S. Circuit Judge Joel M. Carson flanked Harris on the panel. All of the judges questioned Hall about the rational behind the school’s policy.
“Don’t we need some explanation by the school at this stage for their rational?” Hartz asked. “Once we understood why the schools were imposing these particular constraints, then we would measure was this in the range of discretion the school has. Maybe it was, maybe it wasn’t.”
McHugh described the school’s policy as laid out in the handbook as rather terse.
“So a girl can learn with earrings, but you put earrings on a boy and it prevents him from learning? Don’t we need to explore that?” McHugh mulled. “What if girls were told to wear skirts and boys were told to wear pants?”
Hall explained that while previous case law found skirts could make it difficult for girls to engage in after school activities, earrings did not limit learning in the same way.
To date the circuit courts remain split on whether a dress code can ban males from growing out their hair, and the Supreme Court has declined to take up certiorari on the issue at least nine times.
The panel did not indicate when or how it would decide the case.
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