Patrick Hayden v. Greensburg Community School Co , 743 F.3d 569 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1757
PATRICK HAYDEN and MELISSA
HAYDEN, on behalf of their minor
child, A.H.,
Plaintiffs-Appellants,
v.
GREENSBURG COMMUNITY SCHOOL
CORPORATION, et al.,
Defendants-Appellees.
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.
ARGUED OCTOBER 2, 2013 — DECIDED FEBRUARY 24, 2014
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
2 No. 13-1757
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.
I.
A.H.’s home is in Greensburg, Indiana, a city of approxi-
mately 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 condu-
cive to academic purposes” (R. 81 at 3 ¶12); these guidelines
are to include dress standards for members of school athletic
No. 13-1757 3
teams.1 The district guidelines implementing this directive
leave it to the individual principal of each school, in consulta-
tion 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 determin-
ing 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 provi-
sion, 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
1
Although Policy 5511 expressly refers only to dress standards for school
athletic teams, there is no dispute that it also authorizes the establishment
of grooming standards for school athletes.
4 No. 13-1757
school, which likely explains why the parties omitted mention
of a comparable senior high school policy.)
Stacy Meyer, the head varsity basketball coach at Greens-
burg 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,
No. 13-1757 5
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 Corpora-
tion, its governing school board, and various district and
school officials, alleging that the hair-length policy violated
multiple state and federal constitutional and statutory provi-
sions. After the district court denied the Haydens’ request for
preliminary injunctive relief barring enforcement of the policy,
6 No. 13-1757
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.2
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
2
Although A.H., at the time of the district court’s ruling, was attending
Norwell and not Greenberg High School, the court found that the case was
not moot. As the case history indicated, there was a real possibility that
A.H. would return to Greensburg; and, given his announced intent to wear
his hair longer than the policy permitted, there was also a concrete
possibility that the same factual scenario underlying the Haydens’ claims
would repeat itself. At the same time, given the relative brevity of the
basketball season (November through March), the court believed there
would be insufficient time to fully litigate the merits of these claims if and
when A.H. returned to Greensburg, tried out for, and was accepted to the
boys basketball team. The court therefore saw the case as fitting within the
exception to mootness for cases capable of repetition but evading review.
2013 WL 1001947, at *6–*7. See, e.g., Crane by Crane v. Indiana High Sch.
Athletic Ass’n, 975 F.2d 1315, 1319 (7th Cir. 1992). The court added that A.H.
also had a claim for compensatory damages based on his involuntary
removal from the junior high school boys basketball team in the Fall of 2010
pursuant to the hair-length policy. Id., at *7.
For our purposes, the latter point is sufficient to resolve any concern
about mootness. See Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910,
915 (7th Cir. 2012).
No. 13-1757 7
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 interscholas-
tic 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 (1995)). This
court had made that very point in sustaining the constitutional-
ity 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.
Id. at *8 (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 (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,
8 No. 13-1757
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 discrim-
inatory intent. Whereas the Haydens focused on the fact that
“the mandatory haircut policy is not applied to any girl trying
out for any sport,” id. , at *9, 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.
Id., at *10. 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.No. 13-1757 9
II.
A. Substantive Due Process
The Haydens contend that A.H. has a fundamental liberty
interest in wearing his hair at the length of his choosing and
that the hair-length policy, by compelling him to forgo that
liberty and keep his hair short if he wishes to play interscholas-
tic basketball at Greensburg High School, violates his Four-
teenth Amendment right to substantive due process. See, e.g.,
Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267
(1997) (“The [Due Process] Clause … provides heightened
protection against government interference with certain
fundamental rights and liberty interests.”).3 Officials bear a
heavy burden of justification for curtailing a right that qualifies
as fundamental. See Reno v. Flores, 507 U.S. 292, 301–02, 113
S. Ct. 1439, 1447 (1993) (infringement must be narrowly
tailored to serve a compelling state interest) (collecting cases).
The Haydens’ contention that wearing one’s hair in a length
and style of one’s choosing constitutes such a right is grounded
in this court’s decisions in Breen v. Kahl, 419 F.2d 1034, 1036
(7th Cir. 1969); Crews v. Cloncs, 432 F.2d 1259, 1263–64 (7th Cir.
1970); Arnold v. Carpenter, 459 F.2d 939, 941–42 (7th Cir. 1972);
and Holsapple v. Woods, supra, 500 F.2d at 51–52. Breen held that
“[t]he right to wear one’s hair at any length and or in any
desired manner is an ingredient of personal freedom protected
by the United States constitution,” and that “[t]o limit or curtail
this or any other fundamental right, the state has a ‘substantial
3
The Haydens seek relief for the asserted violations of A.H.’s Fourteenth
Amendment rights to due process and equal protection pursuant to 42
U.S.C. § 1983.
10 No. 13-1757
burden of justification.’” 419 F.2d at 1036 (quoting Griswold v.
Connecticut, 381 U.S. 479, 503, 85 S. Ct. 1678, 1692 (1965) (White,
J., concurring)); see also Crews, 432 F.2d at 1263 (“In Breen we
held that plaintiff’s right was of a high order of importance.”).
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, 117 S. Ct. at 2268 (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 had 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, 117 S. Ct. at 2267 (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, 117 S. Ct.
at 2268; see also Collins v. City of Harker Heights, Tex., 503 U.S.
115, 125, 112 S. Ct. 1061, 1068 (1992). Our post-Glucksberg cases
have repeatedly taken note of, and heeded, this advice. See, e.g.,
Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir.
2012); Khan v. Bland, 630 F.3d 519, 535 (7th Cir. 2010); Hanson v.
Dane Cnty., Wis., 608 F.3d 335, 338–39 (7th Cir. 2010); Brown v.
City of Mich. City, Mich., 462 F.3d 720, 732–33 (7th Cir. 2006).
No. 13-1757 11
Breen and its progeny certainly remain valid for the
proposition that the manner in which an individual wears his
hair is a cognizable aspect of personal liberty; the Supreme
Court itself assumed as much (without so deciding) in Kelley v.
Johnson, supra, 425 U.S. at 244, 96 S. Ct. at 1444. See Pence v.
Rosenquist, 573 F.2d 395, 399–400 & n.7 (7th Cir. 1978) (choice
of appearance is an element of liberty subject to regulation
which has rational relationship with legitimate public pur-
pose); see also Rathert v. Village of Peotone, 903 F.2d 510, 514 (7th
Cir. 1990). But there can be no doubt that the Breen line of cases
has been circumscribed by Glucksberg to the extent Breen held
that one’s hair length implicates a fundamental right.
Although hair length is not a fundamental right, there is a
residual substantive limit on government action which
prohibits arbitrary deprivations of liberty by government. See
Glucksberg, 521 U.S. at 728, 117 S. Ct. at 2271; Flores, 507 U.S. at
305, 113 S. Ct. at 1448–49; Wroblewski v. City of Washburn, 965
F.2d 452, 458 (7th Cir. 1992); Baer v. City of Wauwatosa, 716 F.2d
1117, 1123 (7th Cir. 1983). Where a non-fundamental lib-
erty—sometimes described as a “harmless liberty,” e.g., Swank
v. Smart, 898 F.2d 1247, 1251 (7th Cir. 1990)—is at stake, the
government need only demonstrate that the intrusion upon
that liberty is rationally related to a legitimate government
interest. Glucksberg, 521 U.S. at 728, 117 S. Ct. at 2271; see also,
e.g., Goodpaster v. City of Indianapolis, 2013 WL 6170623, at *5
(7th Cir. Nov. 25, 2013); United States v. Moore, 644 F.3d 553,
555–56 (7th Cir. 2011); Greater Chicago Combine & Ctr., Inc. v.
City of Chicago, Ill., 431 F.3d 1065, 1071 (7th Cir. 2005). This
rational-basis variant of substantive due process differs little,
if at all, from the most deferential form of equal protection
12 No. 13-1757
review. Wroblewski, 965 F.2d at 458; Pence, 573 F.2d at 398–99.
See Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir. 2009)
(noting that rational-basis review which applies to all legisla-
tion differs from substantive due process); Saukstelis v. City of
Chicago, 932 F.2d 1171, 1173 (7th Cir. 1991) (noting that residual
form of substantive due process may be a misnomer for rights
expressly established by Constitution).
The Haydens have made no genuine attempt to demon-
strate that the hair-length policy fails rational-basis review. In
passing, they have suggested that the defendants have offered
no evidence supporting the notion that uniformly short
haircuts among members of the boys basketball team promote
team unity, as Coach Meyer posited in defense of the policy.
But the notion that the school must offer proof bearing out the
logic of the policy misconceives the nature of rational-basis
review. It is the Haydens who must demonstrate that the hair-
length policy lacks a rational relationship with a legitimate
government interest; it is not the school district’s obligation to
prove rationality with evidence. See, e.g., Srail v. Village of Lisle,
Ill., 588 F.3d 940, 946 (7th Cir. 2009) (citing Smith v. City of
Chicago, 457 F.3d 643, 652 (7th Cir. 2006)). The Haydens’
burden in this respect is a heavy one: So long as there is any
conceivable state of facts that supports the policy, it passes
muster under the due process clause; put another way, only if
the policy is patently arbitrary would it fail. E.g., F.C.C. v. Beach
Commc’ns., Inc., 508 U.S. 307, 313–14, 113 S. Ct. 2096, 2101
(1993); Wroblewski, 965 F.3d at 458. Having made no effort in
this regard, the Haydens have waived any argument that they
might have made. E.g., Hess v. Kanoski & Assocs., 668 F.3d 446,
455 (7th Cir. 2012). We therefore express no opinion on
No. 13-1757 13
whether the policy would survive rational basis review. Apart
from that, it is not our place to pass judgment on the wisdom
of the policy. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
273, 108 S. Ct. 562, 571 (1988); Epperson v. Arkansas, 393 U.S. 97,
104, 89 S. Ct. 266, 270 (1968).
B. Equal Protection
A more meritorious contention is that the hair-length policy
deprives A.H. of equal protection because it discriminates
against him on the basis of his sex. Because A.H. is a boy, he
must cut his hair in order to play interscholastic basketball at
Greensburg; were he a girl, he would not be subject to that
requirement, as the girls team has no hair-length policy. (All
school athletes apparently are subject to the ban on hair styles
that pose health, sanitation, or vision problems, display initials,
numbers, or insignia, incorporate hair coloring, or are other-
wise extreme in some way, but the hair-length policy is distinct
from these restrictions.) The equal protection clause of the
Fourteenth Amendment protects individuals against inten-
tional, arbitrary discrimination by government officials. Village
of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073,
1074–75 (2000) (per curiam); see also, e.g., Nabozny v. Podlesny,
92 F.3d 446, 453–56 (7th Cir. 1996) (applying equal protection
clause in school context). Gender 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).
Whether and when the adoption of differential grooming
standards for males and females amounts to sex discrimination
14 No. 13-1757
is the subject of a discrete subset of judicial and scholarly
analysis. This line of authority—much of it pre-dating the
Supreme Court’s decision in Price Waterhouse v. Hopkins, 490
U.S. 228, 250–51, 109 S. Ct. 1775, 1790–91 (1989) (plurality)
(employer may not demand that employee’s appearance and
deportment match sex stereotype associated with her
gender)—is most developed in the employment context, but it
has a parallel in the school context as well. See, e.g., Carroll v.
Talman Fed. Sav. & Loan Ass’n of Chicago, 604 F.2d 1028 (7th Cir.
1979) (holding that workplace dress code which required
women but not men to wear uniforms constituted sex discrimi-
nation in violation of Title VII of Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a)(1)); id. at 1032 (“So long as [personal
appearance regulations] find some justification in commonly
accepted social norms and are reasonably related to the
employer’s business needs, such regulations are not necessarily
violations of Title VII even though the standards differ
somewhat for men and women.”); Jespersen v. Harrah’s Op’g
Co., 444 F.3d 1104, 1110 (9th Cir. 2006) (en banc) (majority)
(sustaining make-up requirement for female employees in
absence of objective evidence that such requirement imposed
unequal burden on women) (“We have long recognized that
companies may differentiate between men and women in
appearance and grooming policies, and so have other circuits.
The material issue under our settled law is not whether the
policies are different, but whether the policy imposed on the
plaintiff creates an ‘unequal burden’ for the plaintiff’s gen-
der.”) (citations omitted); id. at 1115–16 (Pregerson, J., dissent-
ing) (contending that make-up requirement constituted the sort
of impermissible sex-stereotyping proscribed by Price Water-
No. 13-1757 15
house); id. at 1117 (Kozinski, J., dissenting) (contending that
because make-up requirement had no genuine equivalent in
grooming standards for male workers, question of fact pre-
sented as to whether standards imposed unequal burdens on
men and women); Barker v. Taft Broadcasting Co., 549 F.2d 400,
401 (6th Cir. 1977) (grooming standards imposing different
limitations on hair length and style for male and female
employees did not constitute sex discrimination absent
allegation that standards were subject to unequal enforcement
between the sexes); Earwood v. Continental Se. Lines, Inc., 539
F.2d 1349, 1350 (4th Cir. 1976) (“sex-differentiated grooming
standards do not, without more, constitute discrimination
under Title VII of the Civil Rights Act of 1964"); Knott v.
Missouri Pac. R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975) (“Defen-
dant’s hair length requirement for male employees is part of a
comprehensive personal grooming code applicable to all
employees. While no hair length restriction is applicable to
females, all employees must conform to certain standards of
dress. Where, as here, such policies are reasonable and are
imposed in an evenhanded manner on all employees, slight
differences in the appearance requirements for males and
females have only a negligible effect on employment opportu-
nities.”); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092
(5th Cir. 1975) (en banc) (“It does not appear that defendant
fails to impose grooming standards for female employees; thus
in this respect each sex is treated equally. … [B]oth sexes are
being screened with respect to a neutral factor, i.e. grooming in
accordance with generally accepted community standards of
dress and appearance.”) (internal quotation marks and
citations omitted); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337
16 No. 13-1757
(D.C. Cir. 1973) (grooming regulations that prohibited men
from wearing long hair and required women with long hair to
secure it did not constitute sex discrimination violating Title
VII: “Giant enforces strict grooming regulations against both
male and female employees.”); Harper v. Edgewood Bd. of Educ.,
655 F. Supp. 1353, 1356 (S.D. Oh. 1987) (school did not violate
students’ equal protection rights by enforcing school board’s
dress regulations and prohibiting students from attending
school prom dressed in clothing of opposite sex; school dress
code did not differentiate based on sex but required students
to dress in conformance with community standards); Johnson
v. Joint Sch. Dist. No. 60, Bingham Cnty., 508 P.2d 547, 548–49
(Idaho 1973) (school dress code that prohibited female students
from wearing slacks, pantsuits, or culottes impermissibly
discriminated on the basis of sex); Scott v. Bd. of Educ., Union
Free Sch. Dist. No. 17, Hicksville, 305 N.Y.S.2d 601, 606–07 (N.Y.
Sup. 1969) (similarly finding invalid provision of school dress
regulations prohibiting girls from wearing slacks except with
permission of principal when warranted by cold weather);
Jeremiah R. Newhall, Sex-Based Dress Codes and Equal Protection
in Public Schools, 12 Appalachian J. Law 209 (2013); Jennifer L.
Greenblatt, Using the Equal Protection Clause Post-VMI to Keep
Gender Stereotypes Out of the Public School Dress Code Equation,
13 U.C. Davis J. Juvenile Law & Policy 281 (2009). Whether and
to what extent these cases survive Price Waterhouse is a
question that we have not yet had occasion to address. The
Ninth Circuit has concluded that sex-differentiated grooming
standards remain permissible after Price Waterhouse, see
Jespersen, 444 F.3d at 1109–12; Nichols v. Azteca Restaurant
Enters., Inc., 256 F.3d 864, 875 n.7 (9th Cir. 2001), although it has
No. 13-1757 17
left the door open to proof that some sex-specific standards
may be the product of impermissible sex-stereotyping,
Jespersen, 444 F.3d at 1113. But we may assume, without
deciding, that this line of authority remains mostly if not
wholly unmodified by Price Waterhouse. The relevant and
dispositive point here is that this line of precedent has been
ignored entirely in this appeal.
The parties have litigated the hair-length policy in isolation
rather than as an aspect of any broader grooming standards
applied to boys and girls basketball teams. We were told, when
we raised the subject at oral argument, that male and female
athletes alike are subject to grooming standards; and indeed
the parties jointly stipulated below for purposes of the prelimi-
nary injunction hearing that whereas only the boys basketball
and baseball teams have hair-length policies, the other school
athletic teams do have grooming policies. R. 34. But the content
of those grooming policies has never been established, and the
fact that there are grooming standards for both girls and boys
teams was not even mentioned in the stipulated facts submit-
ted to the district court for purposes of resolving the case. The
stipulated facts reveal only that there is a hair-length policy for
the boys basketball team but for not for the girls basketball
team (or, for that matter, any other girls team). As such, 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 defendants argue that this is not sex-based discrimina-
tion because the hair-length policy applies to only two of the
boys athletic teams. Boys wishing to compete on the football or
track teams, for example, would be free to do so without
18 No. 13-1757
having to keep their hair cut short. As the defendants appar-
ently see it, the fact that the policy does not apply to all boys
teams demonstrates that the policy does not categorically
discriminate against boys. The district court agreed.
The argument is untenable. That the policy is not univer-
sally applied to boys does not negate the fact that it is based on
sex: Again, boys wishing to play basketball (or baseball) are
subject to a requirement that girls are not. The fact that other
boys playing other sports are not burdened by that require-
ment is neither here nor there. The equal protection clause
protects the individual rather than the group, and the individ-
ual plaintiff in this case wishes to play basketball. See Bohen v.
City of E. Chicago, Ind., 799 F.2d 1180, 1187 (7th Cir. 1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605
(1970)); see also Engquist v. Oregon Dep’t of Agric., 553 U.S. 591,
597, 128 S. Ct. 2146, 2150 (2008); Batson v. Kentucky, 476 U.S. 79,
95–96, 106 S. Ct. 1712, 1722 (1986); Shelley v. Kraemer, 334 U.S.
1, 22, 68 S. Ct. 836, 846 (1948). He is subject to a burden that a
girl in the same position is not.
Equally problematic is the school district’s alternative
contention that the sex discrimination claim fails for lack of
proof that any such discrimination is intentional. See, e.g.,
Nabozny, 92 F.3d at 454. This is a case of disparate treatment
rather than disparate impact; the hair-length policy, being
applicable only to boys teams, draws an explicit gender line.
The intent to treat boys differently from girls is therefore
evident from the one-sided nature of the policy. See Parker v.
Franklin Cnty. Cmty. Sch. Corp., supra n.2, 667 F.3d at 920 (citing,
inter alia, Communities for Equity v. Mich. High Sch. Athletic
Ass’n, 459 F.3d 676, 694 (6th Cir. 2006)); cf. UAW v. Johnson
No. 13-1757 19
Controls, Inc., 499 U.S. 187, 199, 111 S. Ct. 1196, 1203–04 (1991)
(“the absence of a malevolent motive does not convert a
facially discriminatory policy into a neutral policy with a
discriminatory effect”).
Had this case been resolved on a defense motion for
summary judgment (without the parties’ agreement to submit
the case to the court for final judgment based on stipulated
facts) our course would be clear: remand the case for further
proceedings on the question of liability. Our rejection of the
two rationales that the district court relied upon in rejecting the
Haydens’ equal protection claim would not foreclose the
defendants from pursuing alternative arguments for judgment
in their favor. In that scenario, the defendants might yet have
the opportunity to make an argument they have not made
here—namely, that a hair-length policy that applies only to
male athletes, but which is just one component of a set of
grooming standards that impose comparable, although not
identical, responsibilities on male and female athletes, does not
constitute sex discrimination. The merits of such an argument
are not for us to predict. The argument has not been made on
appeal and, save for a one-sentence footnote in a motion to
dismiss, R. 19 at 22 n.6, was not made below. We note it merely
to make the point that we are neither speaking to that argu-
ment here nor foretelling the result in a case in which it is
properly asserted and developed.
The problem for the defendants is that this case was jointly
submitted to the district court for final judgment based on a set
of stipulated facts. Those facts, if they are read to include the
parties’ prior stipulation that both male and female athletes are
subject to grooming standards, reveal nothing that would
20 No. 13-1757
permit a court to assess whether the standards are comparable,
notwithstanding the disparity in the hair-length component of
the grooming standards.
The Haydens plainly have made out a prima facie case of
discrimination. The hair-length policy applies only to male
athletes, and there is no facially apparent reason why that
should be so. Girls playing interscholastic basketball have the
same need as boys do to keep their hair out of their eyes, to
subordinate individuality to team unity, and to project a
positive image. Why, then, must only members of the boys
team wear their hair short? Given the obvious disparity, the
policy itself gives rise to an inference of discrimination. To
defeat that inference, it was up to the school district to show
that the hair-length policy is just one component of a compre-
hensive grooming code that imposes comparable although not
identical demands on both male and female athletes. In the
face of such evidence, the parties might cross swords on such
questions as whether community norms dictate separate
grooming standards, whether the burdens imposed by those
standards on boys and girls are indeed comparable, whether
the respective grooming standards are enforced equally, and,
irrespective of comparability and even-handedness, whether
a sex-specific grooming standard like the hair-length policy is
compatible with Price Waterhouse. But absent 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.
The dissent looks to the parties’ stipulation that there are
grooming standards for all teams, coupled with the hair-style
provision of the athletic code of conduct, quoted supra at 3, as
No. 13-1757 21
proof that male and female athletes are in fact subject to
comparable grooming standards. Post at 32–34, 36–37. Yet, the
mere stipulation that there are grooming standards applicable
to girls as well as boys teams does not establish the content of
those standards. Nor does the hair-style provision fill that void.
That provision proscribes hair styles “which create problems
of health and sanitation, obstruct vision, or call undue attention
to the athlete”; and it goes on to cite a variety of specific
methods of wearing or styling one’s hair that are forbidden to
all athletes, including hair coloring, Mohawks, and cuts that
display insignia, numbers, initials, or the like. R. 81 at 4 ¶ 15;
R. 19 Ex. C. If this is the sum total of the broader grooming
code applicable to both male and female athletes referenced by
the parties’ stipulation, the parties themselves have not
identified it as such in their supplemental submissions to the
court. Nor is it obvious to us that it is, as this provision merely
declares certain extreme hairstyles to be off-limits (and no one
is suggesting that A.H.’s preferred hairstyle would run afoul
of these prohibitions). Beyond that, the policy delegates to each
varsity head coach the responsibility to determine “acceptable”
hair lengths for his or her respective sport, which does not
explain why short hair may be thought necessary for boys who
play basketball but not girls.
The fact is, beyond the outer limits articulated in the hair-
style provision, we know virtually nothing about the grooming
standards to which female athletes at Greensburg are subject.
May they wear earrings or other types of jewelry, for example,
and if so, what if any restrictions are imposed on these items?
If the goal for all interscholastic athletes is a neat, clean-cut
appearance, which is one of the reasons that Coach Meyer gave
22 No. 13-1757
for the hair-length policy, are girls required to maintain their
hair to particular standards? Beyond the limits on mohawks
and other extreme hairdos set forth in the hair-style provision,
are there any limits on the manner in which girls may style
their hair? Although girls can evidently wear their hair as long
as they wish, could a female basketball player wear her hair in
an extremely short “buzz-cut,” which might literally qualify as
“clean cut” but perhaps not in the sense that Coach Meyer
means it and perhaps not in synch with local norms? Surely
girls with longer hair must do something to keep their hair out
of their eyes while playing basketball, as the dissent points out.
Post at 33 n.2. But, at the risk of stating the obvious, boys with
longer hair could do the same. In fact, male athletes use head
and hair bands to do this very thing, as anyone who has
watched professional basketball or football games recently can
confirm.
Which brings us to community standards. As discussed, a
principle that emerges from the Title VII and other cases we
have cited is 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.
As our colleague’s dissent points out, some of the cases in that
line sustained workplace hair-length restrictions on male but
not female employees. Post at 33 (citing Barker, 549 F.2d at 401,
Knott, 527 F.2d at 1250, and Willingham, 507 F.2d at 1087, 1092).
We would reiterate that each of those cases relied on the fact
that female employees, although not subject to hair-length
restrictions, were subject to comparable grooming require-
No. 13-1757 23
ments.4 It is possible that we might reach the same conclusion
here, were the record more developed as to the broader set of
grooming rules applicable to both male and female athletes.
But it is worth noting that the community standards which
may account for the differences in standards applied to men
and women, girls and boys, do not remain fixed in perpetuity.
See Jespersen, 444 F.3d at 1118 (Kozinski, J., dissenting). It is also
worth reiterating that Coach Meyer’s policy prohibits far more
than an Age-of-Aquarius, Tiny-Tim, hair-crawling-past-the-
shoulders sort of hair style—it compels all male basketball
players to wear genuinely short hair. In 2014, it is not obvious
that any and all hair worn over the ears, collar, or eyebrows
would be out of the mainstream among males in the Greens-
burg community at large, among the student body, or among
school athletes. (Even one or two men on this court might find
themselves in trouble with Coach Meyer for hair over the ears.)
We certainly agree that the pedagogical and caretaking
responsibilities of schools give school officials substantial
leeway in establishing grooming codes for their students
generally and for their interscholastic athletes in particular. See
post at 30–31. But that leeway does not permit them to impose
4
See Barker, 549 F.2d at 401 (male employees were subject to hair-length
restrictions whereas female employees were subject to hair-style restrictions;
no indication the restrictions were enforced unevenly as between the sexes);
Knott, 527 F.2d at 1249–50, 1252 (although employer only restricted hair
length and styles of male employees, separate written grooming standards,
which were evenly enforced, required employees of both sexes to conform
to certain styles of dress); Willingham, 507 F.2d at 1087 (grooming code
required both male and female emplo6yees who came into contact with
public to be neatly dressed and groomed in accordance with standards
customarily accepted in the business community).
24 No. 13-1757
non-equivalent burdens on school athletes based on their sex.
So far as this record reveals, that is exactly what the school
district has done; and this is the essence of the sex-discrimina-
tion claim that the Haydens have been making from the
beginning of this case.
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. We know that there is a rule prohibiting both
male and female athletes at the junior high school from
wearing hairstyles that might in some way interfere with their
vision or pose some other type of problem; we have assumed
that the same rule applies to high school athletes of both sexes.
But there is no suggestion that A.H. wishes to wear his hair in
an extreme fashion, let alone that hair worn over a boy’s ears
or collar or eyebrows is invariably problematic. The record also
tells us that Coach Meyer offered two reasons for the policy:
promoting team unity, by having team members wear their
hair in a uniform length, and projecting a “clean-cut” image.
We may assume that the hair-length rule is consistent with
these reasons and that both reasons are legitimate grounds for
grooming standards that apply to interscholastic athletes. What
is noteworthy, for purposes of the Haydens’ equal protection
claim, is that the interests in team unity and projecting a
favorable image are not unique to male interscholastic teams,
and yet, so far as the record reveals, those interests are articu-
lated and pursued solely with respect to members of the boys
basketball team (and baseball team, assuming that the hair-
length rule is applied to that team for the same reasons). If
No. 13-1757 25
there is an argument that the goals of team unity and a “clean-
cut” image are served through comparable, albeit different,
grooming standards for female athletes, it has neither been
advanced nor supported in this case. And the fact that other
boys teams are not subject to a hair-length policy casts doubt
on whether such an argument could be made.
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. The policy imposes a
burden on only male athletes. There has been no showing that
it does so pursuant to grooming standards for both male and
female athletes that, although not identical, are comparable.
Finally, no rational, let alone exceedingly persuasive, justifica-
tion has been articulated for restricting the hair length of male
athletes alone.
C. Title IX
Section 901(a) of Title IX provides that “[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance … .” 20 U.S.C. § 1681(a).
There is no dispute that the Greensburg school district receives
federal funds and that the district, including its interscholastic
athletic programs, is subject to the Title IX’s ban on sex
discrimination. See Parker, 667 F.3d at 917–18. Violations of the
statute are subject to a private suit for both equitable relief and
damages. Cannon v. Univ. of Chicago, 441 U.S. 677, 717, 99 S. Ct.
1946, 1968 (1979); Franklin v. Gwinnet Cnty. Pub. Schs., 503 U.S.
60, 75–76, 112 S. Ct. 1028, 1038 (1992).
26 No. 13-1757
The Haydens are entitled to judgment on their Title IX
claim for the same reasons we have already discussed with
respect to the equal protection claim. As noted, the district
court disposed of this claim for want of proof that the district
harbored any intent to discriminate on the basis of sex: Because
the hair-length policy did not apply to all male athletes, the
district court did not view it as sex discrimination at all. 2013
WL 1001947, at *10. We have disposed of that rationale already:
The hair-length policy is applied only to the boys team, with no
evidence concerning the content of any comparable grooming
standards applied to the girls team. The discrimination must
also be intentional in order to support a claim for damages
under Title IX. E.g., Smith v. Metro. Sch. Dist. Perry Tp., 128 F.3d
1014, 1028 (7th Cir. 1997); see also Parker, 667 F.3d at 921–22. We
have covered that point already as well. The district court said
that Title IX requires proof that the defendant was deliberately
indifferent to a known act of sex discrimination. 2013 WL
1001947, at *10. That is one way to establish intent, typically
where a school district has been sued for sexual harassment of
a student by one of its teachers. See, e.g., Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290–91, 118 S. Ct. 1989, 1999
(1989). The discrimination at issue here takes the form of a
school policy. The policy was instigated by Coach Meyer, but
he did so pursuant to the authority expressly delegated to him
and other varsity coaches to set hair standards for their
respective sports. Lest there by any question that his policy
was the district’s, when Mrs. Hayden protested the policy up
through the district’s chain of command, the policy was
sustained and remained in place unmodified. The intent to
No. 13-1757 27
discriminate is thus attributable to the school district. See
Parker, 667 F.3d at 921–922.
III.
For the reasons discussed in this opinion, the district court’s
judgment in favor of the defendants on the Haydens’ substan-
tive due process claim is affirmed. However, the judgment in
favor of the defendants on the equal protection and Title IX
claims is reversed. On the record presented to us, the Haydens
have established that the hair-length policy applicable to boys
wishing to play basketball impermissibly discriminates based
on sex. The case is remanded to the district court to determine
appropriate relief on these claims. The parties shall bear their
own costs of appeal.
AFFIRMED IN PART, REVERSED IN PART,
and REMANDED.
28 No. 13-1757
MANION, Circuit Judge, concurring in part and dissenting
in part.
Having ruled against A.H.’s primary argument, the court
decides this case on equal protection arguments that A.H. did
not make, rooted in authority he did not cite. However, the
court does not actually tell us why the policies here are not
comparable under the correct standard. Rather, the court
decides that the school loses by default because the record is
missing some of the grooming provisions that are applicable to
female athletes. But there is enough in the record to compare
the grooming policies applicable to male and female athletes,
and if anything that is missing were included, it would only
make the burden of the grooming policy applicable to male
athletes even more clearly balanced out by the burden on
female athletes. Although I agree with the court’s general
summary of the law of equal protection, I write separately
because the record does not establish any violation of the Equal
Protection clause or Title IX.
Imitating a policy established by the celebrated Hoosier and
legendary basketball coach John Wooden, Coach Meyer insists
that the boys on the Greensburg basketball team cut their hair
shorter than A.H. prefers to cut his hair. R. 77 at 10–11 ¶ 47 and
n.4. Meyer hopes that this policy will promote team unity and
at the same time project a clean-cut image, but A.H. doesn’t
“feel like himself” with a shorter haircut. R. 81 at 6 ¶ 26. The
policy of the Greensburg school board allows the coach of each
team to determine any limitation on his players’ hair length,
and according to the parties’ stipulation, Meyer and the
baseball coach are the only coaches at Greensburg who impose
haircut requirements. See id. at 5 ¶ 22. A.H. refuses to be
No. 13-1757 29
compared to the male athletes in other sports who do not have
to cut their hair. Rather, because the members of the
Greensburg girls basketball team do not have to cut their hair,
A.H. claims he is being discriminated against because of his
sex.
As the court recognizes, sex-based equal protection analysis
is much more nuanced than a simple “but for” test. See Maj.
Op. at 13–14. Discrimination based on sex violates the Equal
Protection clause unless the state has an exceedingly persua-
sive justification. United States v. Virginia, 518 U.S. 515, 533
(1996). However, maintaining different grooming standards for
men and women is not usually discrimination. As the court
points out, there is a line of authority which addresses differ-
ing grooming standards for men and women in the workplace.
Maj. Op. at 14–17. From that line of authority, a rule emerges
that differing grooming standards are not discrimination if
they are comparable; for the standards to be comparable, they
must “find some justification in commonly accepted social
norms” or “generally accepted community standards,” be
reasonably related to a legitimate interest, and be applied
evenhandedly, not imposing an unequal burden. Id. (citing
Carroll v. Talman Fed. Sav. & Loan Ass’n of Chi., 604 F.2d 1028,
1032 (7th Cir. 1979); Barker v. Taft Broad. Co., 549 F.2d 400, 401
(6th Cir. 1977); Earwood v. Cont’l Se. Lines, Inc., 539 F.2d 1349,
1350 (4th Cir. 1976); Knott v. Mo. Pac. R. Co., 527 F.2d 1249, 1252
(8th Cir. 1975); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084,
1092 (5th Cir. 1975) (en banc); Dodge v. Giant Food, Inc., 488 F.2d
1333, 1337 (D.C. Cir. 1973)). The rationale for this workplace
rule is simple: requiring everyone to “look professional” (or
any other appearance goal) may mean different things for men
30 No. 13-1757
and women because of “common differences in customary
dress.” Carroll, 604 F.2d at 1032 (citing Fagan v. Nat’l Cash
Register Co., 481 F.2d 1115, 1117 n.3 (D.C. Cir. 1973)).
Consistently with the rule, we have held that enforcing
materially different dress codes based on different inter-
ests—such as requiring that men wear business attire but
women wear uniforms (so both look professional, but women
avoid “dress competition”)—was sex discrimination. Carroll,
604 F.2d at 1032–33. But an evenhanded dress code—like a ban
on wearing clothing that societal standards say belongs to the
opposite sex—has been upheld. Maj. Op. at 16 (citing Harper v.
Edgewood Bd. of Educ., 655 F. Supp. 1353, 1356 (S.D. Ohio 1987)).
Most pertinently, courts have routinely upheld generally
applicable grooming policies containing hair-length require-
ments for men but not for women. Id. at 15–16 (citing Barker,
549 F.2d at 401; Knott, 527 F.2d at 1252; Willingham, 507 F.2d at
1092; Dodge, 488 F.2d at 1337).
Further, the decisions cited above predominately concern
Title VII—equal protection in the workplace. Those decisions
seem to apply reasonably to disputes involving students in a
school setting (which might comparatively be called the
workplace for students), but we are now testing the decisions
in the unique context of high school athletics. Under Title IX,
the interests and factual realities are different from an ordinary
workplace. Notably, this court has found the different interests
significant enough to permit a “separate but equal” scheme in
high school athletics, something that would not be tolerated in
almost any workplace. See O’Connor v. Bd. of Ed. of Sch. Dist.
No. 23, 645 F.2d 578, 581 (7th Cir. 1981). Boys and girls play on
separate teams for the obvious reason that, after age 12 or 13,
No. 13-1757 31
the average male is bigger, taller, stronger, and faster than the
average female competing in the same sport and age level. See
id. at 581. Separation by gender is necessary and beneficial.
Sometimes there isn’t even overlap—there are no girls football
teams, nor are there boys gymnastics or volleyball teams in
Indiana.1 The requirement is equal athletic opportunity. See id.
at 582 (discussing equal opportunity in the context of separate
boys and girls basketball teams). Extracurricular athletic
opportunity is offered amidst many practical, pedagogical, and
biological considerations in addition to those “social norms”
and “community standards” that Title VII decisions have
accepted as legitimate, nondiscriminatory distinctions.
With this context, the grooming decisions reveal a common
thread: as long as a grooming or appearance policy applies to
both men and women, the fact that it has different provisions
based on different social norms or community standards for
men and women (or based on different athletic traditions) is
acceptable. Distinction is not discrimination. The court and I
agree that the rule permits a policy that is different for men
and women so long as it is comparable.
However, I disagree with the court on whether the record
is sufficient for us to apply the rule to the policy in this case.
The court states that the facts of the record “reveal nothing that
would permit a court to assess whether the standards are
comparable, notwithstanding the disparity in the hair-length
1
Even the sports that overlap have differences: a girls’ basketball is smaller
than a boys’ basketball and a softball is bigger than a baseball—and despite
the similarities of the sports, girls softball teams often wear shorts while
boys baseball teams must always wear baseball pants.
32 No. 13-1757
component of the grooming standards.” Maj. Op. at 20.
Therefore, the court concludes that the record requires judg-
ment in A.H.’s favor. I disagree for two reasons.
First, the record is sufficient for us to compare the policies.
One of the stipulations submitted to the district court was that
the school had an “Athletic Code [that] contains a specific
section on grooming with a ‘hair style’ provision that pro-
vides”:
Hair Styles which create problems of health and
sanitation, obstruct vision, or call undue atten-
tion 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 accept-
able 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. This is the policy that applies to
junior-high athletes of both sexes. I agree with the court that
we should assume it is the same for senior-high athletes, Maj.
Op. at 3, especially in light of the stipulation that counsel
brought to our attention after oral argument: “No other
Greensburg sports teams [besides the boys basketball and
baseball teams] have policies governing hair length, but do have
grooming policies.” R. 34 (emphasis added); see also R. 81 at 5 ¶
22 (stipulating that girls do not have to abide by the haircut
limitation). Accordingly, the record indicates that the policies
No. 13-1757 33
for the boys and girls basketball teams are the same except for
hair length. Only the hair length component is delegated to the
coaches, and the stipulation indicates that only the boys
baseball and basketball teams have imposed a hair-length
requirement.2 This kind of policy is permitted. See Barker, 549
F.2d at 401 (approving generally applicable grooming policy
that required only men to cut their hair); Knott, 527 F.2d at
1250, 1252 (approving similar policy again requiring only men
to cut their hair, but also imposing hair style policy on men
alone); Willingham, 507 F.2d at 1087, 1092 (also approving a
policy that prohibited only men from wearing long hair);
Dodge, 488 F.2d at 1337 (same). On the record we have, the
grooming policies for boys and girls, as a whole, are compara-
ble. Requiring men, but not women, to keep their hair at a
certain length has never been held to be unequally burden-
some. Further, there is no evidence (or argument) that the
policies fail for other reasons; for example, there is no evidence
2
It is no surprise that there is no hair-length requirement for the girls.
Female athletes usually compete with their hair worn up in a ponytail, bun,
or “knot top” so that it does not obstruct their vision or get snagged or
tangled during encounters such as scrambling for a loose ball or a rebound.
(A.H. does not allege a failure to evenhandedly enforce on the girls team the
requirement that hairstyles permit unobstructed vision). Unsurprisingly,
the National Federation of State High School Associations (“NFHS”)
Basketball rules—which Greensburg, as a member of the Indiana High
School Athletics Association, follows—anticipate the reality of hair being
worn up by providing that “[r]ubber, cloth or elastic bands may be used to
control hair.” But “[h]ard items, including but not limited to, beads,
barrettes and bobby pins, are prohibited.” 2012-13 NFHS Basketball Rules
Book, NFHS (2012), Rule 3-5, Art. 4, d. at 25 (previous editions have the
same rule).
34 No. 13-1757
that the distinctions are ungrounded in social norms or
community standards or are arbitrary, nor is there evidence
that the policies are not evenhandedly applied. Absent such
proof, the otherwise comparable policies do not amount to sex
discrimination. Carroll, 604 F.2d at 1032 (discussing these
additional factors in finding sex discrimination).
Second, I disagree with the court’s imposition of an
inappropriate burden on the school. I agree that once A.H. has
made a prima facie case of discrimination by showing the
different rule applicable to boys, the school had the burden to
produce its contested policies to permit the court to assess
whether they are comparable. Maj. Op. at 20; see, e.g.,
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). But
I disagree about how much production is enough to enable us
to compare the policies. The court suggests that “it was up to
the school district to show that the hair-length policy is just one
component of a comprehensive grooming code.” Very well.
The school and A.H. have stipulated that the hair style rules
are just one part of a comprehensive grooming and dress code
applicable to boys and girls. R. 81 at 3–4, ¶¶ 12–15. Still, the
court says we are lacking the “content of the grooming
standards that are applicable to female athletes.” Maj. Op. at
20. But A.H.’s only argument—only allegation—is that the hair
length standard is unfair, and the school has produced the hair
style provision of the athletic code, and the coaches’ decisions
that the boys basketball team has to cut its hair to a certain
length and the girls basketball team does not (the only deci-
sions delegated to the coaches). Yet the court says the school
has not produced enough, while leaving the school guessing
about what is enough content. Must the school produce every
No. 13-1757 35
provision tangentially related to female grooming? Perhaps it
would have been better had the school done this. But the only
thing the content of any other female grooming provision
could provide is evidence of more burdens for female athletes,
which would make the policies more comparable. The omis-
sion of any grooming provisions applicable to female athletes
is, at worst, immaterial.3
With enough of the policy to compare, the school’s burden
to produce is satisfied and we continue with the normal
routine. The burden of persuasion rests always with the
plaintiff, who must now show that a comparison of the policies
reveals disparities that amount to sex discrimination. If he does
so, then it is the school’s burden to prove a justification. See
Virginia, 518 U.S. at 533; Dodge, 488 F.2d at 1335 (“It must first
be determined that a discrimination on the basis of sex has
occurred. If there is no sex discrimination, the inquiry ends.
However, if the court concludes that an employer has discrimi-
nated on the basis of sex then it is the employer’s burden … .”)
(emphasis added). The fact that the school did not produce
more of the grooming provisions applicable to girls just makes
A.H.’s job easier—as Judge Easterbrook noted at oral argu-
ment, we should presume there are no other provisions
applicable to girls, the best possible assumption from A.H.’s
3
Further, when deciding a case with as wide-ranging implications as this
one—especially when the most recent precedents are thirty years old—we
should be very reluctant to decide the case on the absence of some
provisions applicable to girls. What is “comparable” is only made more
murky by the court’s opinion, when it could easily give a clear explanation
if it would only expand the record to get what it thinks is missing, which it
may do. See Fed. R. App. P. 10(e).
36 No. 13-1757
perspective. Oral Arg. at 16:44. But it is still A.H.’s burden to
prove that the policies are not comparable. Even with the
benefit of our presuming there are no additional burdens on
female athletes, A.H. has not met his burden. Merely pointing
to the fact that one component is different in an otherwise
equally burdensome grooming policy for boys and girls is
insufficient to prove that the policy is unduly burdensome for
boys, and therefore discriminatory. See Barker, 549 F.2d at 401(dismissing a complaint alleging that an “employer maintained
a grooming code for men and women employees which
limited the manner in which the hair of the men could be cut
and limited the manner in which the hair of women could be
styled” as insufficient to amount to discrimination); Knott, 527
F.2d at 1250 (holding that a hair-length policy applicable only
to men when “[n]o similar regulation restricts the hair length
or hair style of female employees” was not sex discrimination)
(emphasis added); Willingham, 507 F.2d at 1087, 1092 (holding
that a policy imposing a hair-length restriction on men alone
was not sex-based discrimination).
The stipulations in this case indicate that there is an athletic
“hair style” policy that applies to both male and female
athletes, with a “cut” requirement that applies only to (some)
male athletes (and there may be other provisions applicable to
female athletes, but we assume there are not to A.H.’s favor).
Even with no additional grooming provisions applicable to
female athletes, and therefore no additional burdens on females
athletes (besides the athletic code’s hairstyle provision), the
policies are comparably burdensome. Knott, 527 F.2d at 1250
(holding that a policy was not discrimination where “[n]o
similar regulation restricts the hair length or hair style of
No. 13-1757 37
female employees, but both male and female employees must
conform to certain standards of dress”—exactly the scenario
stipulated to here). To the extent the policy in this case is
distinguishable from the policies in Barker and Knott (and the
other employment decisions) it is only because there should be
more flexibility accorded the school administrators and
coaches in the school athletics environment, especially given
the hair-cut policy’s relation to athletic culture. The policies
here are not sex-based discrimination, just like those in Barker
and Knott were not.
A.H. could have argued that the policies are ungrounded
in social norms, irrational, or not enforced evenhandedly. In
fact, the court suggests that very short hair might no longer be
grounded in social norms for male athletes. Maj. Op. at 23–24.
But we have explicitly adopted a more deferential review of
such questions. Carroll, 604 F.2d at 1032 (stating that “[s]o long
as [appearance regulations] find some justification in commonly
accepted social norms and are reasonably related to the
employer’s business needs” they are not usually sex discrimi-
nation (emphasis added)). And besides, these types of
arguments—ones which are external to the text of the
policy—are things for which A.H. would have the burden to
offer evidence, or at least make argument. Barker, 549 F.2d at
401 (“There is no allegation that women employees who failed
to comply with the code provisions relating to hair style were
not discharged. Nor is there any allegation that the employer
refused to hire men who did not comply with the code, but did
hire women who were not in compliance. We conclude that the
complaint does not state a cause of action under Title VII for
discrimination on the basis of sex within the traditional
38 No. 13-1757
meaning of that term.”). But A.H. has not done so. Any win-
by-failure-of-the-record regarding the enforcement or rational-
ity of the policy must go to the school.
As a final note, the court mentions that the interests
underlying the haircut component of the grooming
policy—“clean-cut” appearance, team unity and unifor-
mity—are equally applicable, but not “articulated or pursued”
with respect to the girls teams (and the other boys teams). This
is incorrect. The policy applicable to all boys and girls forbids
“haircuts that include insignias, numbers, initials, or extremes
in differing lengths. Mohawks are not acceptable, and hair
coloring is not permitted” (requirements which A.H. points out
that he complies with). All these prohibitions are at least partly
grounded in the interests in team unity, uniformity, and a
“clean-cut” appearance. The simple fact is that those interests
may often manifest themselves in details that differ between
boys and girls and among different sports. And again, proving
that a difference in how an interest is manifested is un-
grounded in social norms or community standards, is arbi-
trary, is unequally burdensome, or is not evenhandedly
applied is A.H.’s burden—one that he has not met.
The main controversy throughout this case, both below and
on appeal, has been whether there is a fundamental right to
choose the length of one’s hair. I agree with the court that there
is not, so a student challenging a school rule regarding hair
length bears the burden of proving it is not rationally related
to a legitimate state interest—something A.H. has not done.
We could and should end there and affirm. As the court
acknowledges, both sides have completely ignored the
applicable line of equal protection precedent. Maj. Op. at 17.
No. 13-1757 39
However, if we do address equal protection on the current
record of stipulations, we should still affirm. The parties have
stipulated that a grooming policy applies to both boys and
girls. They have supplied an example in the junior-high
grooming policy, which is identical for boys and girls. A.H. has
only pointed out a single difference—hair length—which
precedent says is a legitimate, nondiscriminatory distinction.
A.H. has only argued that the policies are not identical, but
that is not enough. On the record we have, A.H. cannot meet
the burden of proving an argument he has not made—that the
policies are not comparable. Based on the stipulations, the
policies are comparable. Because A.H. has failed to either
argue or prove sex discrimination, his equal protection claims
should fail. Since his Title IX claims depend on his proving sex
discrimination, they fail as well. See 20 U.S.C. § 1681(a).
Accordingly, I would affirm the district court. I concur in part
but respectfully dissent in part and in the judgment.