Challenge to School's "Opposite Sex Day" Survives Motion to Dismiss

The federal district court's decision in Stanley v. Carrier-Mills Stonefront School District No. 2 is over a month old, but it just appeared on Westlaw today (see 2006 WL 2710672).

In case you're just tuning into this case as we are, Lora Stanley is the parent or legal guardian of nine students in the Carrier-Mills Stonefront school district in southern Illinois. She sued the school district to protest "Opposite Sex Day" -- a day on which the school encouraged students to show their "spirit" by dressing like the opposite sex. Her objection is based on a religious belief founded upon Deuteronomy 22:5 -- "A woman must not wear men's clothing, nor a man wear women's clothing, for the LORD your God detests anyone who does this." I think, considering what men wore in Biblical times, a strict interpretation of this provision would actually cut in favor of contemporary cross dressing. I am, however, inclined to endorse Stanley's freedom to interpret the Bible as she wishes. I am also inclined to agree with Stanley that "Opposite Sex Day" day is objectionable, but for entirely different reasons. One concern is that this practice further marginalizes queer or transgender students by trivializing what they might be going through. Compare a "let's all show our school spirit by wearing turbans day." I doubt the school district would endorse that. Another concern is that "[teenage] boys [wearing] short skirts and large breasts [and] grop[ing] themselves as part of the day's activities" (from the Complaint) is potentially demeaning to women (and, in my opinion, in a way that queer drag is not).

So Stanley sued the school district alleging among other claims that the school's promotion of cross dressing fosters peer-on-peer sexual harassment for which the school district is liable under Davis v. Monroe County Board of Education. Specifically, she claims Opposite Sex Day fostered "a sexually hostile learning environment." The school district moved to dismiss, but the federal district court denied the motion. The judge determined that the facts Stanley alleged could, if proven, satisfy the legal standard: (1) knowledge of and deliberate indifference to sexually hostile environment on the part of school officials, and (2) harassment severe enough to have a concrete, negative effect on the students' education. The judge did acknowledge the Supreme Court's skepticism, expressed in Davis, about whether a single instance of sexual harassment could satisfy the standard, but explained: "at least in terms of the catalyst, this is not an issue because the District was on notice after Opposite Sex Day 2003 [the year before]. In terms of the prevalence of the harassing conduct, the Court is without sufficient facts to make a decision. To make a proper determination of the severity of harassing conduct, the Court needs the details of when, where and how often it occurred.... Without this information, the Court cannot say that plaintiffs cannot state a claim as a matter of law."

So I guess we'll all have to stay tuned to find out what happens to Opposite Sex Day under Title IX!