Greensburg Junior High School (School) in Indiana has an unwritten hair-length policy that applies to the boys' basketball team. The policy requires that each player keep his hair short, cut above the ears, eyebrows, and collar. The School's stated purpose for this policy is to promote team unity and project a "clean-cut" image. No girls' athletic team, including the girls' basketball team, has a hair-length policy.
A.H. was a student at the School who wanted to both keep his hair long and play on the boys' basketball team. He refused to cut his hair and the School removed him from the basketball team. A.H.'s parents, the Haydens, sued the School, alleging that the policy violated A.H.'s substantive due process rights, principles of equal protection, and Title IX. The district court found that there was no violation of rights nor of equal protection or Title IX. The Haydens appealed.
The Seventh Circuit Court of Appeals held that while there was not enough evidence to establish a substantive due process violation, the School's policy violated both equal protection and Title IX. First, the Court addressed the Haydens' argument that the policy violated A.H.'s fundamental right to choose the length of his hair. The Court analyzed a line of court decisions that determined that hair length is an aspect of personal liberty, but did not go so far as to hold, as the Haydens argued, that hair length is a fundamental right. The Court applied a "rational basis test" to the policy to determine if the policy arbitrarily deprived A.H. of a liberty interest. Given that the Haydens failed to argue how the policy lacked even a rational basis, the Court considered the argument waived and upheld the district court's ruling on this issue.
The Court next examined the issue of equal protection. Because the policy is based on gender, "intermediate scrutiny" under equal protection applies and the School must provide an "exceedingly persuasive" reason for the difference between boys and girls. The School argued that the policy is not sex-based discrimination because only some of the boys' athletic teams have hair-length requirements. For example, the boys' track and football teams have no hair-length requirement. The School also argued that it did not intend to discriminate through its policy. The Court found neither of these arguments persuasive. Rather, the Court explained that the policy discriminates based on sex: because A.H. is a boy, he must cut his hair in order to play on the School's basketball team, but if he were a girl, he would not have to cut his hair. The policy does, in fact, intend to discriminate because it explicitly treats boys and girls differently. Further, the School provided no comparable grooming demands applied to players on the girls' basketball team, nor did it establish how the goals of projecting a favorable image and team unity applied only to the boys' team. Accordingly, the Court held that the policy violated equal protection and Title IX.
Hayden ex rel. A.H. v. Greensburg Community School Corp. (7th Cir. 2014) 743 F.3d 569.