PATRICK HAYDEN and MELISSA HAYDEN, on behalf of their minor child, A.H., Plaintiffs-Appellants,
GREENSBURG COMMUNITY SCHOOL CORPORATION, et al., Defendants-Appellees
Argued October 2, 2013.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:10-cv-01709-RLY-DML -- Richard L. Young, Chief Judge.
For PATRICK HAYDEN, on behalf of his minor child, A.H., MELISSA HAYDEN, on behalf of her minor child, A.H., Plaintiffs - Appellants: Ronald W. Frazier, Attorney, FRAZIER LAW FIRM, Indianapolis, IN.
For GREENSBURG COMMUNITY SCHOOL CORPORATION, LISA TRESSLER, in her official and individual capacities, DAVID WEIGEL, in his official and individual capacities, VALERIE MOORMAN, in her official and individual capacities, DAVE MEYER, in his official and individual capacities, Defendants - Appellees: Jason T. Clagg, Attorney, BARNES & THORNBURG LLP, Fort Wayne, IN; Thomas E. Wheeler, II, Attorney, FROST BROWN TODD LLC, Indianapolis, IN.
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
Rovner, Circuit Judge.
On behalf of their son, A.H., Patrick and Melissa Hayden challenge a policy which requires boys playing interscholastic basketball at the public high school in Greensburg, Indiana, to keep their hair cut short. The Haydens make two principal arguments: (1) the hair-length policy arbitrarily intrudes upon their son's liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and (2) because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination. The district court rejected both claims and granted judgment to the defendants. Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 2013 WL 1001947 (S.D. Ind. Mar. 13, 2013). We reverse in part. Because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball, the evidence entitles the Haydens to judgment on their sex discrimination claims.
A.H.'s home is in Greensburg, Indiana, a city of approximately 11,500 people in the south-central region of the state. The Greensburg Community School Corporation comprises an elementary school, a junior high school, and a senior high school, which combined have an enrollment of 2,290 students.
The board of trustees that establishes policy for the school district has adopted a provision--Policy 5511, entitled " Dress and Grooming" --which in relevant part directs the district superintendent to " establish such grooming guidelines as are necessary to promote discipline, maintain order, secure the safety of students, and provide a healthy environment conducive to academic purposes" (R. 81 at 3 ¶ 12); these guidelines are to include dress standards
for members of school athletic teams. The district guidelines implementing this directive leave it to the individual principal of each school, in consultation with staff, parents, and/or students, to develop and enforce appropriate dress and grooming policies.
Greensburg Junior High School (which serves students in the sixth through eighth grades) has established an athletic code of conduct which includes the following provision regarding hair styles:
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 team if you have a question regarding hair styles.
R. 81 at 4 ¶ 15; R. 19 Ex. C. Although the record is silent as to the existence and content of a similar provision for athletes at the senior high school, we assume that there is such a provision, as it is undisputed that boys playing on the basketball teams at both the junior and senior high schools are subject to the same restriction on hair length. (When this litigation commenced in 2010, A.H. was enrolled at the junior high school, which likely explains why the parties omitted mention of a comparable senior high school policy.)
Stacy Meyer, the head varsity basketball coach at Greensburg High School, has established an unwritten hair-length policy which applies to the boys basketball teams. That policy provides that each player's hair must be cut above the ears, eyebrows, and collar. Coach Meyer has explained the policy as one that promotes team unity and projects a " clean cut" image. The boys baseball teams have a similar hair-length policy, whereas the boys track and football teams do not. No girls athletic team is subject to a hair-length policy. We are told that both boys and girls teams are subject to broader grooming policies (more on that below), but neither the briefs nor the record shed any light on the content of those policies.
A.H. is seventeen years old and currently is a junior in high school. He wishes to play basketball, but he also wishes to wear his hair longer than the hair-length policy permits. During the 2009-2010 school year, when he was in the seventh grade, A.H. cut his hair in compliance with the policy so that he could play for the junior high school boys team, but he " didn't feel like himself" with the short haircut. R. 81 at 6 ¶ 26. The following year, he declined to cut his hair and his parents protested the hair-length policy as unconstitutional. He was permitted to practice with the boys team while the school and district entertained the objection. But the school principal and district superintendent ultimately sustained the policy and, when A.H. refused to cut his hair, he was removed from the team. His maternal grandparents subsequently assumed guardianship of A.H. and he relocated to their school district--Northern Wells Community Schools in Ossian, Indiana, in the northeastern portion of the state--in the hope that he would be permitted to play basketball without cutting his hair; but his new school did not permit him to play that year.
In the Fall of 2011, the guardianship was terminated and A.H. returned to Greensburg to begin his freshman year at Greensburg High School. He qualified for the freshman boys basketball squad and agreed to comply with the hair-length policy in order to play.
In the Fall of 2012, when A.H. again tried out for the boys team, his hair was longer than the hair-length policy allowed, and he was reminded that he would have to comply with the policy in order to practice with the team. Shortly thereafter, A.H. again took up residence with his maternal grandparents and attended Norwell High School in Ossian. He remains enrolled at Norwell High School to date, but his parents have indicated that they may allow him to return to Greensburg. A.H.'s intent, however, is to continue wearing his hair longer than the hair-length policy allows, and there is no question that this would disqualify him from playing on the boys basketball team.
After A.H. refused to cut his hair and was removed from the boys junior high school basketball team in the Fall of 2010, his parents sued the Greensburg Community School Corporation, its governing school board, and various district and school officials, alleging that the hair-length policy violated multiple state and federal constitutional and statutory provisions. After the district court denied the Haydens' request for preliminary injunctive relief barring enforcement of the policy, Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 2011 WL 2960267 (S.D. Ind. July 19, 2011), the parties filed cross-motions for summary judgment. Those motions were denied without prejudice after the parties agreed to submit the case to the district judge for final resolution on a set of stipulated facts. R. 75, 85. As we noted at the outset, the Haydens contended that the hair-length policy violated A.H.'s right to substantive due process and constituted impermissible sex discrimination.
The court rejected the Haydens' substantive due process claim. The court acknowledged that one's choice of hairstyle is an element of liberty protected by the Fourteenth Amendment. 2013 WL 1001947, at *7 (citing, inter alia, Holsapple v. Woods, 500 F.2d 49, 51-52 (7th Cir. 1974) (per curiam)). But the court also recognized that public schools have the authority to enact and enforce dress and grooming policies. Id. (citing, inter alia, Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 394 (6th Cir. 2005)). Moreover, schools may condition participation in interscholastic sports upon a greater degree
of regulation than that imposed on students generally, id. (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 115 S.Ct. 2386, 2393, 132 L.Ed.2d 564 (1995)). This court had made that very point in sustaining the constitutionality of a random drug testing regime imposed on interscholastic athletes, citing grooming codes as one example of the range of permissible regulations to which such athletes may be subject. (citing Schaill by Kross v. Tippecanoe Cnty. Sch. Corp., 864 F.2d 1309, 1318-19 & n.9 (7th Cir. 1988)). Implicitly rejecting the Haydens' contention that hairstyle is a fundamental right, the district court indicated that the Haydens bore the burden of showing that the hair-length policy is completely arbitrary and lacking any rational connection to a legitimate government interest. Id. The policy is not arbitrary, in the district court's view: it " is rationally related to the legitimate school interest of advancing an image of 'clean cut boys' and uniformity for sake of team unity." Id. (citing, inter alia, Kelley v. Johnson, 425 U.S. 238, 248-49, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976) (sustaining hair-length policy for male police officers)).
The court was no more persuaded that the hair-length policy constitutes sex discrimination in contravention of either the equal protection clause of the Fourteenth Amendment or Title IX of the Education Amendment Acts of 1972 (since renamed the Patsy Mink Equal Opportunity in Education Act), 20 U.S.C. § 1681(a). To establish an equal protection violation, the court noted, the Haydens were required to show not only that the hair-length policy has a discriminatory effect but that it manifests a discriminatory intent, that is, an intent to treat A.H. differently because of his membership in a particular group (male athletes). 2013 WL 1001947, at *9-*10. The court believed that the Haydens had not offered evidence of discriminatory intent. Whereas the Haydens focused on the fact that " the mandatory haircut policy is not applied to any girl trying out for any sport," what the court found relevant is that the policy applies only to some rather than all male athletes:
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.
The court found the Title IX claim doomed for the same reason. A private claim for damages under Title IX requires proof that the defendant intended to discriminate against the plaintiff on the basis of sex. See id. (citing Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 605 (7th Cir. 2008)). Because the hair-length policy did not apply to male athletes as a class, it did not, in the court's view, discriminate on the basis of sex. Id.
A. Substantive Due Process