News

Caroline Tervo ’24 prevailed over runner-up Katherine Thomas JD/LLM ’24 in the final round of the 2023 Dean’s Cup moot court competition held Tuesday night at the Law School, successfully arguing for parents challenging a North Carolina school’s dress code requiring female students to wear skirts.

Tervo and Thomas faced intense questioning by a three-judge “Supreme Court” panel as they argued a fictional appeal of the Fourth Circuit’s decision for Peltier, the respondent, in Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2022).

The case involved a challenge to the gender-based dress code of Charter Day School (CDS), a K-8 public charter school in Brunswick County, N.C. that touts training in “traditional” values alongside a classical curriculum. At CDS, female students were required to wear skirts, "skorts," or jumpers under the theory that girls are “fragile vessels deserving of gentle treatment” and that skirt-wearing would prompt chivalrous behavior by boys.

However, some girls complained that skirts prevented them from being able to move freely, and said the policy conveyed the message that they were inferior to and less powerful than boys. The parents of three female students filed suit alleging the school violated the students’ equal protection rights under the Fourteenth Amendment and the anti-discrimination provisions of Title IX.

The panel of federal judges – R. Guy Cole, U.S. Court of Appeals for the 6th Circuit, who assumed senior status in January, Robin S. Rosenbaum, U.S. Court of Appeals for the 11th Circuit, and Justin R. Walker, U.S. Court of Appeals for the D.C. Circuit – were asked to decide whether, in enacting the dress code, CDS was a state actor for purposes of Section 1983, and whether Title IX applies to gender-based dress codes.

Thomas, representing CDS, began by asserting that government intervention was neither necessary nor appropriate as, under guidelines set forth in Rendell-Baker v. Kohn, CDS’s dress code policy was the private action of a private actor and did not fall under color of state law. Thomas also argued that the “ambiguous” language of Title IX failed to show clear Congressional intent or provide clear notice that the statute would apply to a charter school dress code.

Responding to questions from all three judges, Thomas maintained that while CDS was nominally designated as a public school, the same provision of the North Carolina Charter School Act also stated that the school was to be operated independently, rather than as an agent of the state, by a private board of directors. She positioned charter schools as part of a long tradition of educational alternatives, including non-public, privately operated schools, that have received funding from the North Carolina General Assembly for more than 200 years.

Thomas also argued that the Department of Education had amended its regulations in 1982 to clarify that appearance codes should be excluded from the scope of Title IX, and that Congress had allowed it to stand for more than 30 years. While CDS’s gender-based dress code may have caused discomfort and inconvenience to female students forced to wear skirts, Thomas argued, it fails to rise to the “severe and pervasive” standard of discrimination and exclusion from educational opportunity that Title IX was designed to address.

Taking the podium, Tervo countered that the skirt requirement met the test for state action, which is whether a private entity’s conduct is fairly attributable to the state under the totality of the circumstances, and was covered by Title IX’s broad prohibitions against sex-based discrimination.

She answered questions from Cole and Rosenbaum on the state action test, and questions from Walker pushing back on the idea that Title IX empowers a court to choose between differing educational philosophies.

“This particular educational philosophy, which embraces what you might call traditional values, there’s a debate on whether that’s the right way to educate children or the wrong way. Where does Title IX pick sides in that debate?” Walker asked.

“Your Honor, I don’t think it does, but Title IX does lay out standards that protect against sex-based discrimination ... The issue here is that the respondents have presented evidence as to how the skirts requirement impacts their education,” Tervo replied.

Walker then asked whether, in any event, the free speech clause of the First Amendment prevented the court from engaging in what might be construed as viewpoint discrimination.

“There’s no cause of action for teaching someone traditional values but there is a cause of action for sex-based discrimination,” Tervo said. “To the extent that the school is a public school, it is a government actor and that means that it can’t violate people’s constitutional rights in the scope of performing the educational mandate that it’s been given by the state of North Carolina.”

Returning to deliver their ruling, the judges praised both advocates’ poise, preparedness, and command of the precedents, as well as their attentiveness to the questions that were asked of them.

“It is very, very difficult to pick a winner. You’re both incredibly talented soon-to-be lawyers,” Cole said. “You’ll have brilliant careers in the practice of law, whatever you do, whether it’s oral advocacy or something else.”

“I don’t want to delay it too much further. I know you want to get your hands on this ‘fragile vessel,’” Rosenbaum said, drawing laughs as she gestured to the Dean’s Cup trophy.

“Both of you, if you appeared in front of my court, you’d be right up there with some of the better advocates that we hear – today you would be right up there with them, even before you graduate from law school, so you should both be very proud of yourselves.”

Thomas, of Seattle, graduated from Wellesley College in 2020. She is an articles editor for the Duke Journal of Comparative & International Law, a pro bono director for the Duke Immigrant and Refugee Project, and a member of the Moot Court Board.

Tervo, of Wilmington, N.C., graduated from Harvard University in 2018 and worked in academic political science research before law school. She is senior articles editor for the Duke Law Journal and is enrolled in the Public Interest Public Service (PIPS) Certificate program.

The Dean’s Cup, initiated in 1963 by Deans E.R. Latty and J.D. Johnston, is Duke Law’s premier oral advocacy competition open to 2Ls and 3Ls and organized by the Moot Court Board to highlight the school’s best appellate advocates. The competition centers around a case taught in the Appellate Practice class offered every fall.

In attendance were North Carolina Solicitor General Ryan Park and Deputy Attorney General and General Counsel Sarah Boyce ’12, who taught Appellate Practice at Duke Law in fall 2022 with Assistant Solicitor General Nick Brod ’14.

“I’m so honored and grateful to my Appellate Practice instructors, who made the class accessible and engaging. They’re the reason I decided to do the Dean’s Cup,” Tervo said as she was congratulated by her parents, Barbara McKenzie and Jay Tervo.

“And I’m very grateful to all the friends who helped me prepare and do moots for this experience and who talked with me about the issues.”

Twenty-nine competitors argued in the preliminary rounds of the 2023 Dean’s Cup. Along with Tervo and Thomas, the semifinalists were Mary Beth Barksdale ’23, Josh Britt ’24, Sydney Engle ’23, Nathan Gray JD/MA ’23, Mohammad Khanzada ’23, and Marie Cepeda Mekosh ’23.

A recording of the event can be viewed at this link.