Court’s analysis of liberty interest in hair length, Equal Protection Clause, and Title IX limited because of incomplete trial record
Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014)
Abstract: A U.S. Court of Appeals for the Seventh Circuit three-judge panel, in a 2-1 split, ruled that an Indiana high school’s unwritten policy regulating hair length for members of the boys’ basketball team violated the Fourteenth Amendment’s Equal Protection Clause and Title IX. All three judges agreed that the policy did not violate the boys’ substantive due process rights to choose one’s hairstyle.
The panel’s majority concluded that the hair length restriction for the boys’ basketball team violated the Equal Protection Clause and Title IX because it was prima facie discriminatory and there was no evidence that female athletes were subject to a grooming policy with comparable, even if not identical, restrictions. Regarding the substantive due process claim, the panel unanimously concluded that there is a cognizable liberty interest, but not a fundamental right, in one’s hair length. Because the plaintiffs had not submitted evidence that the hair length policy lacked a rational basis, the court dismissed the claim.
Facts/Issues: The coaches for the boys’ basketball teams at Greensburg High School and Greensburg Junior High School had an unwritten policy that each player’s hair must be cut above the ears, eyebrows, and collar. The coaches’ policy was issued pursuant to the school’s grooming policy that stated:
Hair Styles which create problems of health and sanitation, obstruct vision, or call undue attention to the athlete are not acceptable. Athletes may not wear haircuts that include insignias, numbers, initials, or extremes in differing lengths. Mohawks are not acceptable, and hair coloring is not permitted. Each varsity head coach will be responsible for determining acceptable length of hair for a particular sport. Ask a coach before trying out for a particular team if you have a question about hair styles.
No girls athletic team has a hair policy. Student A.H. was disqualified from playing on the boys’ basketball team because the length of his hair violated the coaches’ policy. His parents filed suit in federal district court against the Greensburg Community School Corporation (GCSC) challenging the grooming policy. The parents claimed that the policy: (1) violated A.H.’s Fourteenth Amendment substantive due process rights because it arbitrarily infringed upon his liberty interest in choosing his own hair length; (2) violated A.H.’s rights under the Equal Protection Clause; and (3) violated A.H.’s rights under Title IX.
The district court granted judgment on the merits in favor of GCSC. It rejected the parents’ argument that hairstyle is a fundamental right. Analyzing the coaches’ policy under a rational basis test, the district court concluded that it “is rationally related to the legitimate school interest of advancing an image of ‘clean cut boys’ and uniformity for sake of team unity.”
The district court rejected the parents’ Equal Protection Clause and Title IX counts, finding that the parents failed to offer evidence of an intent to discriminate. The parents pointed to that fact that a hair policy is not applied to any girls team. But the district court concluded that what was relevant was that some boys teams did not have hair restrictions, therefore “The Haircut Policy applie[s] only to those male athletes who play[ ] basketball under Coach Meyer. It d[oes] not apply to male athletes who play[ ] sports other than basketball, such as football, track, or wrestling. Simply put, the Policy is not based on unlawful gender classifications.”
Ruling/Rationale: The panel affirmed the district court’s substantive due process ruling and reversed (with a 2-1 vote) its equal protection and Title IX ruling.
The Seventh Circuit previously had issued several decisions holding that the freedom to choose the length or style of your hair is a “fundamental right”, imposing on the state a “substantial burden of justification” to sustain any infringement. The panel retreated from those holdings after considering the Supreme Court’s decision in Washington v. Glucksberg, 521 U.S. 702 (1997), stating:
The notion that one’s hair length is an aspect of personal liberty so important that it constitutes a fundamental right is hard to square with the Supreme Court’s later opinion in Glucksberg, which describes fundamental rights as those which are “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” 521 U.S. at 720–21, (internal quotation marks and citations omitted). The Court in Glucksberg noted that in addition to the freedoms expressly protected by the Bill of Rights, it held the Due process Clause to protect such non-enumerated rights as “the rights to marry, to have children, to direct the education and upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.” Id. at 720 (citations omitted). The Court called for the “utmost care” in adding to this short list of fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Id. at 720.
While hair length was no longer a fundamental right, the panel deemed it a “cognizable aspect of personal liberty,” creating “a residual substantive limit on government action which prohibits arbitrary deprivations of liberty by government.” In such circumstances, “the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest.” It is the plaintiff’s burden to prove that the policy is arbitrary, but A.H.’s parents did not present any facts or argument on the issue, which cut short the court’s analysis:
The Haydens have made no genuine attempt to demonstrate that the hair-length policy fails rational-basis review….It is the Haydens who must demonstrate that the hair length policy lacks a rational relationship with a legitimate governmental interest; it is not the school district’s obligation to prove rationality with evidence….Having made no effort in this regard the Haydens have waived any argument that they might have made….We therefore express no opinion on whether the policy would survive rational basis review.
On the discrimination claims, the two judge majority noted that the Equal Protection Clause protects individuals against intentional, arbitrary discrimination by government officials and that ”[g]ender is a quasi-suspect class that triggers intermediate scrutiny in the equal protection context; the justification for a gender-based classification thus must be exceedingly persuasive. United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2275 (1996).”
The majority categorically rejected the district court’s analysis and the school district’s argument that because the policy does not apply to all the boys’ teams it does not discriminate against boys. “The stipulated facts indicate that a boy wishing to play basketball at Greensburg is subject to a requirement, impinging upon a recognized liberty interest, that a girl is not.” The panel considered it irrelevant that boys playing other sports are not subject to hair length restrictions because the “equal protection clause protects the individual rather than the group, and the individual plaintiff in this case wishes to play basketball….He is subject to a burden that a girl in the same position is not.”
The majority also rejected GCSC’s argument that the equal protection and Title IX claims lack proof of intentional discrimination and therefore should be dismissed. The panel said the claims are ones of disparate treatment rather than disparate impact, and the intent to treat boys differently from girls is “evident from the one-sided nature of the policy.”
The majority lamented the fact that the record alluded to, but did not clearly include, a school policy imposing grooming restrictions on female athletes. The school defendants could potentially avoid liability if they could demonstrate that girls were subject to “comparable, although not identical” grooming restrictions. The panel pointed to a line of Title VII cases holding “that sex-differentiated standards consistent with community norms may be permissible to the extent they are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both males and females alike.” In fact, some of those cases upheld workplace hair-length restrictions on male but not female employees where the female employees, although not subject to the hair-length restrictions, were subject to comparable grooming requirements. The key is comparability, not uniformity.
The case had been presented to the district court for final judgment on stipulated facts, however, and under the facts submitted “we know virtually nothing about the grooming standards to which female athletes at Greensburg are subject.” Therefore, the record provides “nothing that would permit a court to assess whether the standards are comparable, notwithstanding the disparity in the hair-length component of the grooming standards.” If the district court’s ruling had been on a summary judgment motion, rather than a final judgement on the merits, the appellate court would have remanded the case to permit the defendant school district to develop this defense.
Concluding the parents had made a prima facie case for sex discrimination under both the Equal Protection Clause and Title IX, the majority determined that in the absence of “any evidence as to the content of the grooming standards that are applicable to female athletes, we are not prepared to simply assume that an otherwise facially-discriminatory rule is justified.” Instead, the majority concluded: “What we have before us is a policy that draws an explicit distinction between male and female athletes and imposes a burden on male athletes alone, and a limited record that does not supply a legally sufficient justification for the sex-based classification.” It held that the “parties consented to the entry of final judgment on the record as it stands, and that record entitles the Haydens to judgment on the equal protection claim.”
Applying the same analysis and reasoning, the court also entered judgment for the plaintiffs on their Title IX claim.
Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014)
[Editor's Note: The decision fails to give us a full picture of the law on this issue. The court's analysis on all three claims was cut short by the parties' failure to present facts. For example, while the school’s hair length restriction for boys was upheld under a liberty interest claim, we know it might not have been if the plaintiffs had presented evidence that it lacked a rational basis. And while the school’s hair length restriction was struck down under the Equal Protection Clause and Title IX, we know that it might not have been if the school had produced evidence that female athletes were subject to comparable although not identical restrictions.
In July 2010, Legal Clips summarized a decision by a U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) three-judge panel in A.A. v. Needville I.S.D., holding that a school district violated a male Native American student’s rights under the Texas Religious Freedom Restoration Act (TRFRA), even though the district offered the student an exemption from its grooming policy barring male students from having long hair, because the exemption’s restrictions substantially burdened the student’s free exercise of religion without serving any compelling governmental interest. The panel did not address the federal constitutional issues raised in the student’s suit because the case could be disposed of on state grounds, i.e. the TRFRA.]