In Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 13-1757, 2014 WL 685529 (7th Cir. Feb. 24, 2014) the federal appellate court governing Illinois considered a claim brought by Patrick and Melissa Hayden on behalf of their son A.H., challenging a school policy that requires boys who play interscholastic basketball at the public high school in Greensburg, Indiana, to keep their hair cut short. The court found that because the hair-length policy on its face treated boys and girls differently it constituted illegal sex discrimination.
The policy in question was established by the head varsity basketball coach at Greensburg High School. Specifically, it required that each player on the boys’ basketball team must have his hair cut above the ears, eyebrows, and collar.
The coach instituted the policy to promote team unity and project a “clean cut” image. No girls’ athletic team was subject to a hair-length policy. A.H. attended the high school and was removed from the basketball team for refusing to cut his hair to the prescribed length.
In considering the Haydens’ claims, the court acknowledged that one’s choice of hairstyle is an element of liberty protected by the Fourteenth Amendment; however, the court refused to treat this as a fundamental right.
Conversely, the court found merit in the Haydens’ claim that the policy discriminated on the basis of sex. It agreed with the Haydens’ claim that if A.H. were a girl, he would not be required to cut his hair in order to play interscholastic basketball at Greensburg.
The defendants argued that the policy was not sex-based discrimination because it only applied to 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 being required to keep their hair cut short.
The defendants claimed, therefore, that the policy did not categorically discriminate against boys. In the court’s opinion, however, the fact that other boys playing different sports were not burdened by the requirement was neither here nor there because the equal protection clause protects the individual rather than the group, and the individual plaintiff in this case wished to play basketball, which was covered by the policy.
The court also disagreed with the defendants’ alternative contention that the sex discrimination claim failed for lack of proof that any such discrimination was intentional. Instead, the court found that the intent to treat boys differently from girls was evident by the one-sided nature of the policy.
The policy applied only to male athletes, and there was no facially apparent justification, especially given that the coach’s stated reason for applying the policy, creating team unity and projecting a positive image, applied equally to girls playing interscholastic basketball. Why, then, the court asked, must only members of the boys team wear their hair short?
The court therefore concluded that the substantial leeway that school officials are given in establishing grooming codes for their students generally and for their interscholastic athletes in particular did not permit them to impose non-equivalent burdens on school athletes based on their sex.
The court also found that the intent to discriminate was attributable to the school district, who had sustained the policy unchanged during this process, and had delegated to the team coaches the express authority to set hair standards for their respective sports.
School districts continue to confront a variety of gender discrimination issues in a wide variety of contexts. Contact Nancy Krent or Pam Simaga with your gender discrimination or Title IX inquiries.