Why An Indiana School's Unconstitutional Hair Length Policy Matters for All Governmental Entities
A school's hair length policy was the subject of a recent lawsuit, and the federal appellate court's opinion on the matter serves as a reminder for all schools and other governmental entities to be wary because, in the words of Bob Dylan, "the times they are a-changin'." As the facts are described in Hayden v. Greensburg Community School Corp., 743 F.3d 569 (7th Cir. 2014), the Greensburg, Indiana school district's board of trustees deferred to its superintendent and principals for establishing grooming policies applicable to students. When it came to athletics, the principals in turn deferred to the coaches. The boys varsity basketball coach's unwritten hair length policy required each player's hair to be cut above the ears, eyebrows, and collar. The coach explained that the purpose of the policy was to promote team unity and project a clean-cut image. Aside from baseball, no other boys or girls sport had a comparable policy. When a student was prohibited from playing boys basketball because of his hair length, the student's parents brought the lawsuit on behalf of their minor son claiming, among other things, that the policy was unconstitutional gender discrimination.
The federal appellate court ultimately agreed with the parents finding that the boys basketball hair length policy violated the equal protection clause of the Fourteenth Amendment. Where the school district went wrong is that it failed to show that the girls basketball players were subject to a comparable (but not necessarily identical) grooming policy. The school district could have still succeeded absent a comparable policy for girls basketball players if the school district's justification for the male-only hair length policy been exceedingly persuasive. But the court did not find promoting team unity and projecting a clean-cut image as even a rational justification for the male-only policy because every sport, male and female alike, would have those goals. Notably, because the school district received federal financial assistance, it also found itself in violation of Title IX, which prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance. The case was then returned to the lower court to determine the appropriate remedy for the student.
As alluded to above, comparable grooming policies does not necessarily mean identical. In determining whether grooming policies are comparable, previous courts have relied in part on whether the differences between male and female grooming policies are based on community norms or standards. Consequently, previous courts have allowed grooming policies that impose a hair-length restriction on males and not females. Nonetheless, this court stated "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." Hayden, 743 F.3d at 581. The court indicates that it is becoming more mainstream for males to have longer hair styles (at least those going past the ears, collar, or eyebrows) and therefore seems to reject any reliance the school district may have had on community standards.
The equal protection clause of the Fourteenth Amendment applies to state and local governments, not just school districts. Therefore, Hayden v. Greensburg Community School Corp. should serve as a reminder for all governmental entities to review their current grooming policies, written and unwritten, to make sure they are comparable between males and females. And keep in mind that what was once the norm 10, 20, or 30 years ago, is more than likely not the norm today. In any event, case law based on the equal protection clause is voluminous and daunting and cannot be summarized in this article alone. Therefore, consult with your attorney regarding any grooming or other policies that are gender specific to help ensure that you stay on the right side of the equal protection clause.