Contributions

Long Hair, Don’t Care: An Analysis of Gender-Specific School Athletic Regulations & The Equal Protection Clause

by Matthew Olsen 1

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.

Notes:

  1. 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–RLYDML, 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.