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District's Hair-Length Rule for Male Basketball Players Struck Down by Court

Guest post by Mark Walsh. Cross-posted from The School Law Blog.

A federal appeals court has struck down an Indiana school district's policy requiring short hair for boys on the basketball team, ruling that the lack of a similar policy for girls'-team basketball players results in illegal sex discrimination.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 for a boy identified as A.H., who beginning in junior high school sought to wear his hair longer than short-hair policy permitted.

Greensburg Junior High School in Greensburg, Ind., has a code of conduct for athletes (not the general student population) that bars hair styles that may obstruct vision or draw attention to the athlete, such as mohawks, dyed hair, or having numbers or initials cut into the hair. The hair-length policy, though, was established by the basketball coach, and requires hair to be cut above the "ears, eyebrows, and collar" to promote a "clean-cut image."

A.H. is now a high school junior, and the court worked on the assumption that Greensburg High School had the same policy as the junior high. 

The policy evokes the look and era of "Hoosiers," the 1986 basketball movie set in small-town Indiana in the 1950s. But basketball great Larry Bird, who wore long hair that was typical of his era when he played high school ball in French Lick, Ind., in the early 1970s, would not have been in compliance with the Greensburg policy.

The 7th Circuit court said in its Feb. 24 decision in Hayden v. Greensburg Community School Corporation that based on jointly stipulated facts, the hair-length policy violated A.H.'s 14th Amendment right to equal protection of the law and Title IX's prohibition against sex discrimination in federally funded schools. That's because there is no comparable limitation on the hair length of girls basketball players in the district, the court said.

"The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so," U.S. Circuit Judge Ilana D. Rovner wrote for the majority. "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."

The court said that under modern sex-discrimination legal doctrine, including landmark U.S. Supreme Court cases on sex discrimination in the workplace, the school district might have been able to justify the disparate treatment.

To defeat the inference of sex discrimination, "it was up to the school district to show that the hair-length policy is just one component of a comprehensive grooming code that imposes comparable although not identical demands on both male and female athletes," the court said.

"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," Judge Rovner said.

Writing in dissent, Judge Daniel A. Manion said he would have upheld the hair-length policy.

"On the record we have, the grooming policies for boys and girls, as a whole, are comparable," Manion said. "Requiring men, but not women, to keep their hair at a certain length has never been held to be unequally burdensome."

(Hat Tip to How Appealing.)

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