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. Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 2

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.

2 Appellate Case: 22-1369 Document: 010111040625 Date Filed: 04/30/2024 Page: 3

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 gi