by Matthew Olsen*

Does a high school men’s baseball team regulation governing player hairstyles violate players’ Due Process or Equal Protection rights? Matt Olsen (’17) examines this question, based on his experience at the 2016 Tulane Mardi Gras Sports Law Invitational Competition. His Contribution discusses the Seventh Circuit’s ruling in Hayden v. Greensburg School Community Corporation, the sole circuit court case to address the constitutionality of extracurricular athletic grooming regulations in the context of an Equal Protection claim. Although the adoption of the holding by other courts remains to be seen, the Contribution concludes that the ruling could serve as a powerful means to strike down personal appearance regulations based on gender stereotypes.

“I have nothing against long hair, but wearing a Yankee uniform represents tradition. I think a Yankee should look well-groomed.”2

During the 1973 New York Yankees home opener, manager George Steinbrenner looked down from his viewing suite and noticed that the hair of his players, who had removed their caps for the playing of the national anthem, had reached varying levels of unruliness.3 Infuriated, Steinbrenner immediately instituted a grooming policy, prohibiting facial hair and restricting the hair length of players, which remains in effect to this day.4 The uniform acceptance of Steinbrenner’s grooming policy may be attributed to high paying contracts and the opportunity to play for the New York Yankees, one of the most prolific baseball teams in the world. Yet such policies are not unique to the Yankees, and have long been imposed at varying levels of athletic competition, including high school sports.5

The nature of these policies, frequently applied to only a single gender of athletes, raises significant gender discrimination concerns, but such policies have traditionally evaded judicial scrutiny. The Seventh Circuit broke judicial silence on the issue recently in Hayden v. Greensburg School Community Corporation, where the constitutionality of such regulations was rejected under the Equal Protection Clause.6 While the court purported to articulate a fact-specific analysis for determining the constitutionality of single-gender personal appearance regulations, its analysis served as a novel reconception of how the judiciary approaches the constitutionality of such regulations.7 So while the Yankees may continue to impose an unchallenged grooming policy on its players, a faithful adoption by other courts of the Hayden analysis will likely render such policies at the secondary education level a relic of the past.

***

As part of an effort to govern the behavior of student athletes, the middle and high schools of Greensburg, Indiana, implemented a school-wide athletic code of conduct. A provision governing the hairstyles of players prohibited those that would “create problems of health and sanitation, obstruct vision, or call undue attention” to athletes and delegated to each head coach the responsibility of implementing hair length requirements.8 In accordance with this, the head coach of the boys’ basketball teams instituted an unwritten hair length regulation prohibiting team members from having long hair that extended past their ears, eyebrows, or collar.9

A.H., an eighth grade student and long time basketball player, desired to play on the school’s team. Although he made the squad, A.H. wore long hair that extended past the maximum length permitted by the team’s policy.10 As such, A.H. was told that so long as he remained in noncompliance with the policy, he would be unable to practice or participate in games. Nevertheless, A.H. refused to cut his hair, and after remaining in noncompliance for several weeks, he was dismissed from the team.11

A.H.’s parents brought suit on his behalf against the school, contending that the policy violated A.H.’s substantive Due Process and Equal Protection rights.12 Ruling in favor of Greensburg School Community Corporation, the district court rejected both claims. The court found that as the school’s hair length policy failed to implicate a fundamental right and survived rational basis review scrutiny, it did not violate the Due Process Clause.13 A.H.’s Equal Protection claim fared no better: the court determined that a team-specific regulation that did not apply to all male athletes could not be said to classify based on gender and thus did not violate A.H.’s Equal Protection rights.14

Upon appeal, the Seventh Circuit affirmed the district court’s Due Process ruling.15 The plaintiff’s contention that the district court had incorrectly categorized hairstyle choice as a non-fundamental right, the court held, could not be reconciled with the Supreme Court’s recent articulation of the limited scope of fundamental rights in Washington v. Glucksberg.16 As the district court had applied the correct standard of scrutiny and the plaintiffs had made no argument on appeal as to why the hair length regulation would fail rational basis review, the Seven Circuit considered the argument waived.17

Moving to its Equal Protection analysis, the circuit court rejected the district court’s determination that a finding of gender discrimination was precluded by the policy’s inapplicability to other, non-basketball playing male athletes. To the contrary, the court found the very existence of a regulation applicable to athletes of only one gender to be sufficient to make out a prima facie case of gender discrimination.18

Analogizing the relevant Equal Protection analysis to Title VII employment discrimination cases, the Seventh Circuit found that this presumption of unconstitutionality could be rebutted if the regulation constituted “sex-differentiated standards consistent with community norms . . . [which] are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both males and females alike.”19 Such a finding, the court concluded, was impossible to make. While a constitutionally valid regulation was not required to place identical demands on both genders, the stipulated record contained “virtually nothing about the grooming standards to which female athletes at Greensburg [were] subject” and did not demonstrate that male and female athletes had comparable burdens regarding their personal appearance.20

While the court did not comment on the overarching gender-neutral hairstyle provision from which the basketball coach derived the authority to implement team specific hair length regulations, the Seventh Circuit’s holding evidences that this provision alone was insufficient to constitute the comprehensive policy required. Even if the existence of comparable burdens had been proven, the court cast significant doubt on the assertion that a hair length policy would be consistent with modern community norms. While the court acknowledged that prior cases considered hair length regulations comporting with gender stereotypes to be consistent with historical community standards, it noted that such standards “do not remain fixed in perpetuity.”21 Citing a dissent from a Ninth Circuit case that rigorously rejected the constitutionality of modern grooming regulations comporting with traditional gender appearance stereotypes, the court found that it was far from obvious that men wearing long hair would be inconsistent with community norms.22

At first glance, the Seventh Circuit’s analysis appears straightforward. The court, acknowledging that it faced an issue of first impression, sought instruction on the proper analytical framework from cases addressing personal appearance regulations and gender discrimination in the context of schools and the workplace. Surveying circuit court cases from across the country, the Seventh Circuit noted a nationwide consensus on a governing principle: single-gender personal appearance regulations are permissible only when they are consistent with community norms and part of a comprehensive overarching policy that, in the aggregate, imposes comparable burdens on both genders.23 The court formulated this principle into a two-prong test requiring: (1) consistency with community norms that account for the gender-based disparity in treatment; and (2) an overarching policy placing comparable burdens on both genders.24 The court found that the regulation did not satisfy either prong and invalidated it.

However, Hayden serves as a significant departure from prior analyses of single-gender personal appearance regulations. The distinguishing factor between the Seventh Circuit’s application of the personal appearance test and analyses in cases preceding it is its treatment of the “consistent with community standards” prong. In past cases, courts had utilized this prong defensively, finding that adherence to community understandings of traditional gender roles legitimized the application of a policy that imposed unequal burdens.25 In contrast, by noting the improbability that any hair length regulation could be validly premised on modern community standards, the Hayden court used the community standards prong as an offensive tool to invalidate regulations. The court reasoned that while such sex-differentiated standards may have aligned with perceived gender norms in decades past, these standards are in constant evolution. The Seventh Circuit considered the contention that community standards related to gender roles encompass hair length to be farcical, observing that even “one or two of the men on the court” wore hair at a length that would be in violation of the basketball team’s restriction.26

This shift in the utilization of “community standards” from a defensive to an offensive weapon may be attributable to the Supreme Court’s decision in Price Waterhouse v. Hopkins.27 Hopkins involved a female employee who was not promoted despite having demonstrated remarkable aptitude.28 Her failure to receive a promotion was due to her behavior being viewed as gender-nonconforming: Hopkins was told that she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” in order to be promoted.29 The Supreme Court condemned the behavior swiftly and ruled in favor of Hopkins, finding that punishment based on a failure to conform to perceived gender stereotypes constituted gender discrimination.30

The Seventh Circuit did not invoke Hopkins expressly as the origin of its community standards analysis. To the contrary, the court declined to consider whether Price Waterhouse’s articulation of gender stereotyping as impermissible discrimination overturned prior lower court validations of gender-specific grooming policies.31 However, the court’s reconceptualization of the community standards prong may be viewed as a tool that comports with the Supreme Court’s position on gender stereotyping and discrimination without extending the Price Waterhouse holding to a novel set of factual circumstances.

While this articulation of the community standards prong serves as an inventive method of invalidating regulations premised on pernicious gender stereotypes, it suffers from a lack of precision. The Seventh Circuit offered no guidance on the implementation of the standard and left many questions unanswered: what factual circumstances merit its application; how future courts should determine whether a gender-specific regulation’s aligns with community standards; and what degree of discordance is necessary for a regulation to be invalidated. This ambiguity can be interpreted as intentional, reflecting the court’s recognition that what constitutes impermissible gender stereotyping and what is considered reflective of accepted community norms are in a constant state of flux. Accordingly, the standard’s ambiguity may be viewed not as an analytical weakness, but as permitting future courts to adopt an analysis that reflects ongoing developments in the conceptualization of community standards. Nevertheless, this failure to delineate a precise analytical framework casts into question how the community standards prong should be applied.

Hayden is the sole circuit court case to address the constitutionality of extracurricular athletic grooming regulations in the context of an Equal Protection claim, and whether the Seventh Circuit’s analysis is adopted by other courts remains to be seen. The severe informational deficiency in the Hayden record, an issue frequently evoked throughout the Seventh Circuit’s opinion,32 gives ample reason for it to be rejected as an anomaly. Further, the court’s ambiguity regarding proper application of the community standards prong may result in future courts refusing to adopt the analysis. Yet even if Hayden is not expressly adopted, its innovative approach to Equal Protection claims may inspire future courts to reconsider the relationship between gender stereotyping and personal appearance regulations. If courts remain faithful to the Supreme Court’s opinion in Price Waterhouse, the Seventh Circuit’s reconceptualization of community standards as an offensive tool of invalidation will serve as a powerful means to strike down personal appearance regulations based on gender stereotypes.

* Matthew Olsen is a 2L at New York University School of Law. This piece is a commentary on one of the questions presented during the 2016 Tulane Mardi Gras Sports Law Invitational Competition. The question addressed whether a high school men’s baseball team regulation violated players’ Due Process or Equal Protection rights. The views expressed in this article do not necessarily represent the views of the author on this point of law, but serve as a distillation of the argument as presented during the Tulane Sports Law Competition.

2. George Steinbrenner: In His Own Words, Sports Illustrated, http://www.si.com/mlb/2010/07/13/steinbrenner-quotes (last visited Apr. 3, 2016).

3. Brian Stevens, Hair Today, Gone Tomorrow, 2 St. John’s U. Legal Apprentice 13, 15–16 (2015).

4. Id.

5. See, e.g., Davenport v. Randolph Cty. Bd. of Educ., 730 F.2d 1395, 1396 (11th Cir. 1984) (involving challenge to an Alabama high school basketball team’s beard prohibition); Neuhaus v. Torrey, 310 F. Supp. 192, 193 (N.D. Cal. 1970) (involving a California high school grooming regulation applicable to all public school athletes).

6. 743 F.3d 569 (7th Cir. 2014).

7. Id. at 582.

8. Hayden v. Greensburg Cmty. Sch. Corp., No. 1:10–CV–1709–RLY–DML, 2013 WL 1001947, at *2–3 (S.D. Ind. Mar. 13, 2013), aff’d in part, rev’d in part, 743 F.3d 569 (7th Cir. 2014).

9. Id. at *3.

10. Id.

11. Id. at *4.

12. Id. at *1. Plaintiffs also brought claims regarding A.H.’s procedural Due Process rights, along with the rights afforded to students under Title IX. As the procedural Due Process claim was abandoned on appeal, and analysis of the Title IX claim was largely absorbed into the Equal Protection analysis, they are not discussed here.

13. Id. at *8-9.

14. Id. at *9-10.

15. Hayden, 743 F.3d at 583 (7th Cir. 2014).

16. Id. at 575–76.

17. Id. at 576.

18. Id. at 580.

19. Id. at 581.

20. Id.

21. Id.

22. Id. (citing Jesperen v. Harrah’s Operation Co., Inc., 444 F.3d 1104 (9th Cir. 2006) (Kozinski, J., dissenting) (“[C]ultural norms change . . . I see no justification for forcing [female employees] to conform with [defendant’s] quaint notion of what a ‘real woman’ looks like.”).

23. Id. at 578 (citing Carroll v. Talman Fed. Sav. & Loan Ass’n of Chicago, 604 F.2d 1028 (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. Missouri Pac. R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C. Cir. 1973)).

24. Id. at 581.

25. See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092 (5th Cir. 1985) (rejecting the applicability of Equal Protection’s shield against gender discrimination based on challenged policy’s adherence to “generally accepted community standards” despite its inclusion of disparate gender-based requirements); Harper v. Edgewood Bd. Of Educ., 655 F.Supp. 1353, 1356 (S.D. Ohio 1987) (finding a dress code, which was based on community understanding of gender norms and provided for disparate gender treatment, did not discriminate based on gender). See generally Katherine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541 (1994) (arguing that judicial reliance on community norms has historically been used to legitimize gender stereotyping).

26. Hayden, 743 F.3d at 582.

27. 490 U.S. 228 (1989).

28. Id. at 231–32.

29. Id. at 235.

30. Id. at 250–51.

31. Hayden, 743 F.3d at 579.

32. Id. at 581.