Patrick Hayden v. Greensburg Community School Co

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.