certificate of service frazier law firmonline.wsj.com/public/resources/documents/greensburghair.pdf1...

NO. 13-1757

______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS,

SEVENTH CIRCUIT

______________________________________________________________________________

PATRICK HAYDEN and MELISSA HAYDEN, on behalf of their minor child, A.H.

Plaintiffs – Appellants,

v.

GREENSBURG COMMUNITY SCHOOL CORPORATION, et al.

Defendants – Appellees.

______________________________________________________________________________

Appeal from the United States District Court

For the Southern District of Indiana

Indianapolis Division

Case No. 1:10-cv-1709-RLY-DML

Richard L. Young, Judge

______________________________________________________________________________

BRIEF OF APPELLANTS

______________________________________________________________________________

Ronald W. Frazier

FRAZIER LAW FIRM

612 East Market Street

Indianapolis, IN 46202

Telephone: 317-916-9999

Facsimile: 317-917-7730

Email: [email protected]

ATTORNEY FOR APPELLANTS

(1 of 56)Case: 13-1757 Document: 10 Filed: 07/01/2013 Pages: 56

mailto:[email protected]

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PATRICK and MELISSA HAYDEN, on behalf of their

Minor Child, A.H.,

Plaintiffs/Appellants )

) No. 13-1757

vs. )

)

)

GREENSBURG COMMUNITY SCHOOL )

CORPORATION )

)

et al., )

)

Defendants/Appellees )

PLAINTIFFS/APPELLANTS’ DISCLOSURE STATEMENT

Plaintiffs/Appellants, by counsel and pursuant to Circuit Rule 26.1, submit their

disclosure statement:

All law firms who have appeared for Plaintiffs/Appellants in the district court or are

expected to appear in this Court are Frazier Law Firm a/k/a Frazier & Associates or Frazier &

Associates, P.C. The true name of Plaintiff/Appellant “A.H.” is Austin Hayden.

Respectfully submitted,

FRAZIER LAW FIRM

/s/Ronald W. Frazier

Ronald W. Frazier, Atty. No. 13975-48


CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served upon the following via the

Court’s electronic filing system:

[email protected]

[email protected]


FRAZIER LAW FIRM

/s/Ronald W. Frazier





TABLE OF CONTENTS

Page

I. Jurisdictional Statement ...................................................................................................... 1

II. Statement of the Issues........................................................................................................ 1

III. Statement of the Case.......................................................................................................... 2

IV. Statement of Facts ............................................................................................................... 2

V. Summary of Argument ....................................................................................................... 8

VI. Argument

1. Standard of Review…………………………………………………………...10

2. The District Court Erred in concluding that A.H. gave up his liberty interest to

wear his hair at any length, which is a fundamental right, by trying out for the

Greensburg Basketball Team………………………………………………………10

3. The District Court erred in finding that the unwritten haircut policy which

only places restrictions on boys basketball team members and not girls

basketball team members does not violate equal protection…………………..18

4. The District Court erred in finding that the unwritten haircut policy does not

violate Title IX………………………………………………………………...20

VII. Conclusion……………………………………………………………………………..24

Certificate of Compliance With Type-Volume Limitation, Typeface Requirements,

and Type Style Requirements………………………………………………………………….25

Circuit Rule 31(e)(1) Certification…………………………………………………………….25

Certificate of Service…………………………………………………………………………..26

Required Short Appendix


TABLE OF AUTHORITIES

Cases Page

Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)…………...19

Anderson v. Cornejo, 355 F.3d 1021, 1024 (7th

2004)…………………………………......23

Argyropulous v. City of Alton, 539 F.3d 724 (7th

Cir. 2008)………………………………10

Arnold v. Carpenter, 439 F. 2d 539 (7th

Cir. 1972)……………………………………...11, 12

Blau v. Fort Thomas Pub. Schl. Dist., 401 F. 3d 381, 394 (6th

Cir. 2005)………………17, 18

Bohen v. City of East Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986)…………………..18, 19

Breen v. Kahl, 419 F. 2d 1034 (7th

Cir. 1969)………………………………10, 11, 12, 17, 18

Cmtys. For Equity v. Mich. High Sch. Athletic Ass'n, 178 F.Supp.2d 805, 837-38

(WDMich.2001), aff'd, 377 F.3d 504 (6th Cir.2004), judgment vacated on other

grounds, 544 U.S. 1012, 125 S.Ct. 1973, 161 L.Ed.2d 845 (2005), aff'd on remand,

459 F.3d 676, 695 (6th Cir.2006)...........................................................................................23

Crews v. Cloncs, 432 F. 2d 1259 (7th

Cir. 1970)………………………………………..11, 12

Doe by Doe v. City of Belleville, 119 F.3d 563, 581-2 (7th

Cir. 1997), vacated on

other grounds by 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998)…………….18, 21

Federal Trade Comm’n v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106,

82 L.Ed.2d 278 (1984)…………………………………………………………………..14, 15

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998)…………………………23

Gfel v. Rickelman, 441 F. 2d 444, 446 (6th

Cir. 1971)………………………………….17, 18

Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970)......17

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 14 L.Ed.2d 510 (1965)………..10, 17

Haas v. South Bend Comm. School Corp., 289 N.E.2d 495, 500-501 (Ind. 1972),

abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind. 1994)...........................19

Holsapple v. Woods, 500 F.2d 49 (7th

Cir. 1974)…………………………………...10, 11, 12

Hossack v. Floor Covering Associates of Joliet, Inc., 492 F.3d 853, 860 (7th Cir. 2007)….20


Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976)……………..10. 15, 16

Nabozny v. Podlensy, 92 F.3d 446, 454 (7th

Cir. 1996)……………………………….............18

Parker v. Franklin County Community School Corporation, 667 F.3d 910

(7th Cir. 2012)....................................................................................................20, 21, 22, 23, 24

Pence v. Rosenquist, 573 F.2d 395 (7th

Circ. 1978)……………………………………….11, 19

Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972)……………………14

Rathert v. Village of Peotone, 903 F. 2d 510 (7th

Cir. 1990)…………………………………..15

Reagan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d

129 (1983)……………………………………………………………………………………...15

Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)…………………………19

Robbins by Robbins v. Indiana High School Athletic Ass’n, Inc., 941 F.Supp. 786, 791

(S.D. Ind. 1996)...........................................................................................................................17

Schaill by Kross v. Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir. 1988)…....14, 15

Shapiro v. Thompson, 394 U.S. 618, 627 n.6, 89 S.Ct. 1322, 1327, 22 L.Ed.2d 600 (1969),

disapproved in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

L.Ed.2d 662 (1974).....................................................................................................................16

Sherbert v. Verner, 374 U.S. 398, 404-5, 83 S.Ct. 1790, 10 L.Ed.2d 965.................................16

Steinhauer v. Degolier, 359 F.3d 481, 484 (7th Cir. 2004)........................................................21

United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).....12

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995)..............................................13, 14

Other Authorities

34 C.F.R. 106.41(a)....................................................................................................................20

20 U.S.C. Sec. 1681(a)...............................................................................................................20

Article I, Sec. 23 Indiana Const.................................................................................................21


1

I.

JURISDICTIONAL STATEMENT

Subject-matter jurisdiction in the district court is based on 28 U.S.C. §§ 1331 and 1343.

The Haydens are challenging the constitutionality of Greensburg’s policy requiring A.H. to wear

his hair a certain length in order to play school basketball. This policy infringes on A.H.’s

fundamental right to wear his hair any length he desires. The Haydens’ claims present one or

more federal questions arising under the Constitution or laws of the United States, namely the

First, Ninth and Fourteenth Amendments to the United States Constitution and 20 U.S.C. § 1681.

Because the Haydens are appealing the district court’s denial of their motion for summary

judgment and the district court’s entry of summary judgment in favor of the Defendant, this

Court has jurisdiction under 28 U.S.C. § 1291. The district court’s order finding in favor of

Defendants and against Plaintiffs was made March 13, 2013. The District Court entered a final

judgment in favor of Defendants and against Plaintiffs on that date. The Haydens timely filed a

Notice of Appeal on or about April 12, 2013.

II.

STATEMENT OF THE ISSUES

1. Whether the district court erred in concluding that A.H. gave up his liberty interest to

wear his hair at any length, which is a fundamental right, by trying out for the Greensburg

Basketball team?

2. Whether the District Court erred in finding that the unwritten haircut policy which only

places restrictions on boys basketball team members and not girls basketball team

members does not violate equal protection?

3. Whether the District Court erred in finding that the unwritten haircut policy, which

resulted in unequal treatment between boys and girls and only applies to boys, does not

violate Title IX.


2

III.

STATEMENT OF THE CASE

Plaintiffs filed their Amended Complaint on January 18, 2011. (Dk. 12, Amended

Complaint). On December 12, 2011, Defendants’ filed a motion for Summary Judgment. (Dk.

52, Mot. For S.J.). On May 2, 2012, Plaintiffs’ moved for a partial summary judgment on May

2, 2012 (Dk. 70, Mot. For Partial S.J.). On July 30, 2012, the District Court held a status

conference at which time the parties consented to submit the case to the District Court for final

resolution. (Dk. 75, July 30 Entry). On September 14, 2012, the parties filed their Joint

Stipulations of Fact. (Dk. 81, Joint Stipulations).

Then on September 21, 2012, the District Court noted that “[t]he parties have since filed

joint Stipulations of Facts, and separate Findings of Facts and Conclusions of Law in anticipation

of a final judgment. Since this matter is now submitted to the court for judgment on the merits,

the parties’ respective summary judgment motions no longer require a ruling. Accordingly,

Defendants’ Motion for Summary Judgment (Docket # 52) and Plaintiffs’ Motion for Partial

Summary Judgment (Docket # 70) are DENIED WITHOUT PREJUDICE. (Dk. 85, Sept. 21

Entry). On November 23, 2012, Defendants’ filed their Amended Answer to the Amended

Complaint. (Dk. 88,Amended Answer to Amended Complaint). On March 13, 2013, the

District Court found in favor of the Defendants on all counts alleged in Plaintiffs’ Amended

Complaint. (Dk. 92, Findings and Conclusions). On that same date the District Court entered a

Final Judgment in favor of the Defendants and against the Plaintiffs. (Dk. 93, Final Judgment).

IV.

STATEMENT OF FACTS


3

The Plaintiffs-Appellants, Patrick and Melissa Hayden, are the parents of A.H., “a male,

14 years of age, date of birth June 19, 1996.” (Dk. 92, p 4, finding 1). The Appellee, Defendant,

the Greensburg Community Schools is located in south-central Indiana with its administrative

offices located in Greensburg, Indiana. Id. at finding 2. Greensburg Community Schools is the

recipient of federal funding. Id. at p. 5, finding 3.

Tom Hunter is the Superintendent of the Greensburg Community Schools. Id. at p. 5,

finding 4. The Defendant, Stacy Meyer is the Head Varsity Basketball Coach at Greensburg

High School. Id. at p. 5, finding 7. 9. These individuals operate under the direction and control

of a seven (7) member School Board comprised of President Lisa Tressler, Vice-President David

Weigel,

Secretary Valerie Moorman, Dave Meyer, Al Moore, Tony Owens, and Steve Taylor

(collectively the “School Board”). Id. at p. 5, finding 8. Indiana law provides that the School

Board is the ultimate decision-maker for the School and the School Board exercises this

authority through a series of policies. Ind. Code § 20-23-4-26; § 20-26-5-4; § 20-26-3-1 through

6. The School Board’s policies and bylaws can be found at: http://www.neola.com/greensburg-

in/. At all relevant times, each defendant acted under color of state law. Id. at p. 5, finding 10.

The School Board has adopted Policy 5511 entitled Dress and Grooming which provides,

in pertinent part that “The Board will not interfere with the right of students and their parents to

make decisions regarding their appearance, except when their choices interfere with the

educational program of the schools. Accordingly, “the Superintendent shall establish such

grooming guidelines as are necessary to promote discipline, maintain order, secure the safety of

students, and provide a healthy environment conducive to academic purposes.” Id. at p. 5,

finding 11.


http://www.neola.com/greensburg-in/

http://www.neola.com/greensburg-in/

4

The policy also states that “[s]uch guidelines shall establish the dress requirements for

members of athletic teams, bands, and other groups representing the Corporation at public

events.” Id. at p. 6, finding 12. The policy further directs that these administrative guidelines

shall “designate the principal as the arbiter of student dress and grooming in his/her building”,

shall “invite the participation of staff, parents, and/or students in the preparation of a dress code

which may specify prescribed dress and grooming practices, but may not amplify the rationale of

prohibition established by board policy”, shall “ensure that all administrative guidelines impose

only minimum and necessary restrictions on the exercise of the students taste and individuality.”

Dk. 81, p. 3, stip. 13.

The administrative guidelines designed to implement School Board Policy 5511, in turn,

state that “[e]ach principal, in consultation with his/her staff, shall develop a dress code which

complies with School Board Policy 5511.” (Id. at stip. 14). “The code should delineate what

types of clothing or manner of clothing does not comply with School Board policy and why such

clothing or manner of wear is not permitted.” Id .In connection with these policies and

guidelines, Greensburg Junior High School developed an extracurricular code of conduct that

governed student athletes and athletics entitled the “Greensburg Junior High School Athletic

Code.” (Id. at. p. 4, stip. 15).

In accordance with School Board Policy, the Athletic Code contains a specific section on

grooming with a “hair style” provision that provides, in pertinent part, that: “Hair Styles which

create

problems of health and sanitation, obstruct vision, or call undue attention to the athlete are not

acceptable. Athletes may not wear haircuts that include insignias, numbers, initials, or extremes

in differing lengths. Mohawks are not acceptable, and hair coloring is not permitted. Each varsity


5

coach will be responsible for determining acceptable length of hair for a particular sport. Ask a

coach before trying out for a team if you have a question about hairstyles.” Id. (emphasis added).

Pursuant to the Greensburg Junior High School Athletic Code, Stacey Meyer, Boy’s High

School Basketball Coach, established a “mandatory haircut policy.” Id. at stip. 16. This

“mandatory haircut policy” required that a player’s hair must be cut above the ears, eyebrows

and collar. Id, Coach Meyer “told Mrs. Hayden that it was a requirement that the mandatory

haircut policy be followed because he wanted his team to present for the public an image of

‘clean cut’ boys.” Id. at p. 4, stip. 17. “Mr. Meyer also stated another reason for the mandatory

haircut policy was ‘uniformity’ for the sake of team unity.” Id.

Stacy Meyer testified that the harm that could come if the mandatory haircut policy was

not in place, “…I think you could have a basketball team where boys are wearing ponytails. That

is not something that I want portrayed.” Id. at stip. 18. There are some female members of the

Greensburg basketball program whose hair is worn in ponytails. Id at p. 5, stip. 19. Male

members of the Greensburg track teams do not have to comply with the mandatory haircut

policy. Id. at p. 5, stip. 20. Male members of the Greensburg football teams do not have to

comply with the mandatory haircut policy. Id. at p. 5, stip. 21. Female members of the

Greensburg basketball teams do not have to comply with the mandatory haircut policy. Id. at p.

5, stip. 22. Some members have short hair and some members have long hair. Id. Female

members of all the Greensburg athletic programs do not have to comply with the mandatory

haircut policy. Id. at stip. 23. Stacy Meyer and the Greensburg School Corporation plan to

require that males trying out for the 2012-2013 Greensburg basketball program conform to the

mandatory haircut policy in order to participate in the program. Id. at stip. 24.


6

The haircut policy was initially applied to A.H. in the Eighth Grade. “On October 25,

2010, A.H. was informed by the Eighth Grade Basketball Coaches, Trevor Shields and Andrew

Ruble, that there was a haircut requirement for male students participating in basketball.” Id. at

stip. 25. “Specifically, boys trying out for the team had to have their hair in conformity with the

mandatory haircut policy.” Id. At that time “A.H.’s hair was below the top of his ears and below

the top of his shirt collar.” Id.at p. 6, stip. 25. A.H. played on the Greensburg Junior High 7th

grade basketball team during the 2009-2010 school year. A.H. cut his hair to be in compliance

with the mandatory haircut policy for boys. . Id. at p. 6, stip. 26. According to the testimony of

Melissa Hayden, A.H.’s mother, after A.H. cut his hair, he “didn’t feel like himself.” . Id.

According to Melissa Hayden’s testimony, A.H., between 10/26/2010 and 11/4/10, had his hair

cut “as short as he felt comfortable that he was still himself and felt confident with that” Id. at

stip. 27.

A.H.’s hair continued to be longer than the required mandatory haircut for males. Id. at

stip. 28. A.H. was informed that “the penalty for non-compliance would be that A.H. would

have to sit on the bench and could not participate in practices or games; however, he could still

be a member of the team.” Id. Mrs. Hayden then met with Coach Meyer who “told Mrs.

Hayden that it was a requirement that the mandatory haircut policy be followed because he

wanted his team to present for the public an image of ‘clean cut’ boys.” Id. at stip. 29. “Mr.

Meyer also stated another reason for the mandatory haircut policy was ‘uniformity’ for the sake

of team unity.” Id.

During follow-up meetings with administrators at the School, the Haydens took the

position that the haircut policy was unconstitutional and that therefore A.H. should not be

required to comply with it. Id. at stip. 30. The School disagreed with the Haydens’ position and


7

during a meeting with Ms. Hayden, Superintendent Hunter stated that “it was his intent to

enforce the mandatory haircut policy.” Id. at p. 7, stip.31. During this administrative appeal

process, On October 29th, November 1st and 2nd

of 2010, A.H.’s hair did not conform to the

mandatory haircut policy. During this time, A.H. was permitted to continue to practice with the

team. Id. at stip. 32.

On November 2, 2010, A.H. was informed at practice by Mr. Shields that the students

who were not going to comply with the mandatory haircut policy by Thursday November 4,

2010, need not show up for practice and would be removed from the team for noncompliance.

Id. at stip 33. A.H. came to practice on November 4, 2010 with his parents seeking to have the

opportunity to participate in the public school basketball program, despite the fact that A.H.’s

hair was longer than the required mandatory haircut policy for males. Id. at stip. 34. At that time

“The Haydens were instructed that A.H. was terminated from the team due to his non-

compliance with the mandatory haircut policy.” Id. Another player who was also non-compliant

(due to his hair being longer than the mandatory haircut policy for males), T.B., was removed

from the team as well. Id. The Head Varsity Boys’ Basketball Coach recommended that A.H. be

terminated from the 2010-2011 8th grade basketball team for failure to cut his hair. Id. at stip.

35.

After being told that he could not play basketball at Greensburg A.H. voluntarily moved

out of the school district. Id. at stip. 36. In early November of 2010, Melissa Hayden’s mother

and father, and A.H.’s grandmother and grandfather, John Howard Warwick and Deborah Anne

Warwick, filed a Verified Petition for Appointment of Co-Guardians Over the Person and Estate

of a Minor in the Decatur County Circuit Court. Id. at stip. 37. On November 12, 2010, the

Court granted the Petition and entered an Order Appointing Co-Guardians Over the Person and


8

Estate of a Minor. Id. at stip. 38. As a consequence of this Order, A.H.’s grandparents became

the permanent legal guardians of A.H. which thus changed his legal settlement from Greensburg

to the Northern Wells School Corporation, of which A.H. attended the latter. Id. at stip. 39.

Following the transfer A.H. was not permitted to participate in the 2010-2011 basketball

program at Northern Wells Middle School and A.H. continued to be enrolled in this district

during the remainder of the 2010-11 school year. Id.

Following the conclusion of the 2010-11 school year the Haydens terminated the

guardianship and A.H. moved back to Greensburg and began attending Greensburg High School

for the 2011-12 school year as a freshman. Id. at stip. 41. A.H. lived with his father, brothers,

sister and Mrs. Hayden in Greensburg, Indiana. Id. A.H. enrolled at Greensburg High School as a

student. A.H. tried out for the Greensburg High School boys’ basketball team. Id. A.H. made the

Greensburg High School basketball team and earned a spot on the freshman squad. Id. A.H. was

a member of the starting five when the Greensburg High School boys’ freshman team played

their first game on November 21, 2011. Id.

V.

SUMMARY OF THE ARGUMENT

This case is not just about a haircut as the Greensburg School Corporation claims. This

case is about an infringement on a fundamental constitutional right. This case is about the

School running roughshod over the Hayden family. This is a case about a kid who was forced to

choose between the game he loves and not feeling like himself if he cut his hair. This case is

about the government taking away rights from a child without giving a substantial burden of

justification.


9

There is no evidence indicating that A.H.’s hair in any way ever interfered with his play,

that it created any problems relating to health or sanitation, that it obstructed his vision, or called

undue attention to himself or the school. There is no evidence indicating that A.H.’s hair was

outlandish. Indeed, there is no evidence indicating his hear had insignias, numbers, initials

emblazoned in it. There is also no evidence indicating that he wanted to wear a Mohawk or

color his hair. Finally, there is no evidence that his hair was extreme in length.

The reason A.H. was thrown off the team is that his hair didn’t live up to Coach Meyer’s

standard of ‘clean cut’ boys.” Coach Meyer also stated another reason for his mandatory haircut

policy was ‘uniformity’ for the sake of team unity.” The harm Coach Meyer believes will come

if ordered to give up the mandatory haircut policy is that he “could have a basketball team where

boys are wearing ponytails. That is not something I want portrayed…” Those reasons fail to

constitute the substantial burden of justification needed to infringe upon a fundamental right.

The District court and the School attempt to argue that this case is like several random

drug testing cases where the court’s have found that the government has a compelling

government interest to impinge upon students privacy rights. A.H. does not quarrel with the fact

that drugs are a scourge upon society and that a compelling government interest is present in

those Fourth Amendment cases. Where A.H. does think that his case differs from the drug cases

is that his having hair longer than the Coach likes it does not hurt anyone or put anyone in danger

as do drugs. A.H. also thinks his situation is different as the constitutional infringement caused

by a urine screen only takes a short time whereas having short hair lasts 24 hours a day and 7

days a week throughout basketball season. A.H. therefore requests the District Court to be

reversed and this cause to be remanded for findings consistent with this Court’s opinion.


10

This matter also violates Equal Protection because the school policy requiring only male

basketball players, not female basketball players, to cut their hair constitutes denial of equal

protection to males. No reason posited by the School or the District Court justifies the patent

Equal Protection violation.

Lastly, the haircut policy also violates Title IX because A.H., on the basis of sex, has

been denied the ability to play basketball at Greensburg. Girls who play sports for Greensburg

school teams do not have to comply with the haircut policy which applies to members of the

boys’ basketball teams. There has been no evidence whatsoever presented by the school that any

grooming policy has ever been applied to the girls. The haircut policy therefore unlawfully

discriminates against males because it prohibits males whose hair length does not conform to

gender stereotypes (like A.H.) from playing basketball, while at the same time allowing girls

with longer hair to participate in the school’s basketball program. Those reasons explained

above are evidence that the underlying purpose for the mandatory haircut policy is to

discriminate against males and mandate their conformity to gender-based stereotypes,

impermissible under Title IX and the 14th

Amendment. Those reasons fail to constitute the

substantial burden of justification needed to justify unequal treatment and subsequent denial of

opportunity between the sexes. The Title IX violation in and of itself is enough to reverse the

District Court and remand this matter for findings consistent with the opinion of this Court.

VI.

ARGUMENT

1. Standard of Review

Findings of Fact, whether based on oral or other evidence, must not be set aside unless

clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to


11

judge the witnesses’ credibility. Fed. Rule Civ. Proc. 52(a)(6). The Court of Appeals reviews

the district court's grant of summary judgment de novo, construing all facts and reasonable

inferences in favor of the nonmoving party. Argyropoulous v. City of Alton, 539 F.3d 724, 732

(7th

Cir. 2008).

2. Whether the district court erred in concluding that A.H. gave up his liberty interest to

wear his hair at any length, which is a fundamental right, by trying out for the Greensburg

Basketball team?

Over 40 years ago, the Seventh Circuit Court of Appeals held that “The right to wear

one’s hair at any length or in any desired manner is an ingredient of personal freedom protected

by the United States Constitution.” Breen v. Kahl, 419 F.2d 1034, 1035 (7th Cir. 1969)(citations

omitted). The Constitution protects children in school as well as adults from “arbitrary and

unjustified governmental rules,” and the state has a “substantial burden of justification” to limit

or curtail a fundamental right. Id. (citing Griswold v. Connecticut, 381 U.S. 479, 505, 85 S.Ct.

1678, 14 L.Ed2d 510 (1965)). Noting that the policy regulates the “intimately personal” matter

of grooming, the Seventh Circuit affirmed the district court’s conclusion that the school fell “far

short” of its substantial burden of justification and held that the haircut policy was

unconstitutional. Cf. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708

(1976)(police department haircut regulation did not violate Fourteenth Amendment).

In Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974), cert. den., a male high school

student was suspended for violating the school’s grooming policy which prohibited long hair. He

sued the superintendent and members of the school board seeking to have the grooming policy

declared unconstitutional. The district court found that the policy violated the Fourteenth

Amendment and was affirmed on appeal.


12

In an effort to justify the grooming policy the school in Holsapple presented evidence

that there is a correlation between students’ grooming, behavior and academic performance. This

argument was rejected: “The law of this Circuit is well settled that in a school context, the right

to wear one’s hair at any length or in any desired manner is an ingredient of personal freedom

protected by the...Constitution.” Id. at 51-2 (citations omitted). The right to wear one’s hair any

length is a fundamental right. This is a right that has been recognized in this circuit for over 40

years. Four decades ago this Court in Holsapple said that this law is “well settled;” the

concurrence described it as “well-established authority in this Circuit.” Holsapple, supra at 52.

Even the Trial Court agrees that “[A] Citizen’s choice of hairstyle is an element of liberty

protected by the Fourteenth Amendment.” Doc., 92. Pages 15-6, finding 20. However, this is

where Appellant’s agreement with the District Court ends. In finding 20 the District Court goes

on to state “[T]he issue here is whether the constitutional protection applies equally to a public

school student who wishes to play interscholastic sports.” The District Court then fails to state

any “substantial justification” for its finding that A.H. gave up his constitutional protection by

choosing to play interscholastic sports.

Whether characterized as “grooming policies” or “dress codes,” public school regulations

which govern the length or manner in which one wears his hair operate to limit, curtail or

infringe upon that fundamental right. Pence v. Rosenquist, 573 F.2d 395 (7th

Circ. 1978),

Holsapple, supra, Arnold v. Carpenter, 439 F. 2d 539 (7th

Cir. 1972), Crews v. Cloncs, 432 F. 2d

1259 (7th

Cir. 1970) and Breen, supra. Because it is a fundamental right the School has a

“substantial burden of justification” in order for the policy to pass constitutional muster. Crews,

supra at 1263.


13

Schools with haircut policies have tried to justify them by saying that long hair is

somehow “disruptive” to the learning environment because it distracts fellow students, that it

poses health or safety problems (Crews), that students whose appearance conforms to

community standards perform better in school or that there is a correlation between hair length

and academic performance (Breen and Holsapple). All of these explanations have been rejected

by the Seventh Circuit; none of these has been found to be a “substantial justification” for

infringing on one’s fundamental right to wear his hair as he chooses.

A challenged state regulation is “substantially justified” if it is “within the constitutional

power of the Government; if it furthers an important or substantial government

interest…unrelated to the suppression of free expression; and if the incidental restriction

on…First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)

(upholding statute prohibiting draft card burning).

Enforcement of the haircut policy affects A.H. while he is not practicing or playing

basketball and while he is not attending school. Therefore, the degree of state infringement on

A.H.’s personal rights is greater than other school rules which only apply to A.H. when he is

playing basketball or attending school. Breen, supra at 1037-38; Crews, supra at 1264 (“since

the impact of hair regulations extends beyond the schoolhouse gate, the degree of state

infringement on personal rights is significantly greater than in many other areas of school

discipline.”); Arnold, supra at 943 (noting conflict between school’s requirement for short hair

during school and parents’ consent to long hair outside school).

Here, the Trial Court does not offer any of these explanations in defense of the school’s

policy. Nor does it attempt to offer the reasons typically given by states generally to support


14

many other regulations, such as health and safety or crime prevention. Rather, the Trial Court

attempts to justify the haircut policy on the basis that it promotes uniformity. It simply argues

that it is important for its male basketball players to look neat and present a clean-cut image, but

does not offer any reasons for its policy which would withstand any level of constitutional

scrutiny (e.g., rational basis or compelling government interest).

When asked to explain the rationale behind the haircut policy, Coach Meyer testified that

he wanted a “clean cut” image for the team “to build uniformly [sic] conformity with all the

boys” because it “builds togetherness.” Although the Trial Court compared this matter to an

opinion involving school drug policies, the School has never taken the position that the haircut

policy bears any relation to student discipline, academic performance, health or safety. It

therefore falls woefully short of meeting its substantial burden of justification.

The Trial Court also attempts to justify the policy by citing Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 657 (1995) for the proposition that “students who voluntarily participate in

school athletics have reason to expect intrusions upon normal rights and privileges, including

privacy. Vernonia is inapposite because it is a random drug test case. The Trial Court is using a

Fourth Amendment intrusion which is subject to a reasonableness standard in contrast to a

fundamental right where a substantial burden of justification must be utilized.

In Vernonia, the Court discussed that athletes voluntarily give up privacy rights when

they undress and shower together in the locker room. Similarly, their privacy rights are invaded

upon when they are asked to submit to a urine screen. However, they are only asked to give up

those privacy rights because preventing drug use is a compelling government interest. As stated

by the United States Supreme Court:


15

Finally, we turn to consider the nature and immediacy of the governmental

concern at issue here, and the efficacy of this means for meeting it. In both

Skinner and Von Raab, we characterized the government interest motivating the

search as "compelling." Skinner, (interest in preventing railway accidents); Von

Raab (interest in ensuring fitness of customs officials to interdict drugs and

handle firearms). Relying on these cases, the District Court held that because the

District’s program also called for drug testing in the absence of individualized

suspicion, the District must demonstrate a `compelling need' for the program."

The Court of Appeals appears to have agreed with this view. It is a mistake,

however, to think that the phrase "compelling state interest," in the Fourth

Amendment context, describes a fixed, minimum quantum of governmental

concern, so that one can dispose of a case by answering in isolation the question:

Is there a compelling state interest here? Rather, the phrase describes an interest

that appears important enough to justify the particular search at hand, in light of

other factors that show the search to be relatively intrusive upon a genuine

expectation of privacy. Whether that relatively high degree of government

concern is necessary in this case or not, we think it is met.

Vernonia, supra at 660-1.

Similarly, the Trial Court also relies upon this Court’s decision in Schaill by Kross v.

Tippecanoe County School Corp., 864 F.2d 1309 (7th Cir. 1988). In that case the plaintiff

challenged a school’s policy requiring interscholastic athletes to submit to random drug testing

on the ground it violated the Fourth Amendment. The Seventh Circuit observed:

It is certainly relevant to the ultimate question of constitutionality…that the

activity to which random testing is attached is participation in an extracurricular

activity. Random testing is not…a condition of a weightier benefit such as

employment or school attendance. [But] since participation in interscholastic

athletics is expressly conditioned on a student’s waiver of his…fourth amendment

rights, the “voluntariness” of a student’s submission to [drug testing] does not

alone dispose of the constitutional issues presented…

Id. at 1313.

Schaill cited Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d

570 (1972) for the proposition that “even though a person has no ‘right’ to a valuable benefit

and…the government may deny him the benefit for any number of reasons, there are some

reasons upon which the government may not rely. It may not deny a benefit to a person on a


http://scholar.google.com/scholar_case?case=6102826977251195448&q=Vernonia+Sch.+District+47J&hl=en&as_sdt=800003



16

basis that infringes on his constitutionally protected interest….” See also Federal Trade Com’n

v. League of Women Voters, 468 U.S. 364, 104 S.Ct 3106, 82 L.Ed.2d 278 (1984) (government

may not prohibit “editorializing” as a condition of federal grants to noncommercial TV stations);

Regan v. Taxation With Representation, 461 U.S. 540, 545, 103 S.Ct. 1997, 2001, 76 L.Ed.2d

129 (1983) (“The government may not deny a benefit to a person because he exercises a

constitutional right.”). Applying these principles to this case, even if playing school basketball

for Greensburg is a privilege, the haircut policy requires A.H. to waive his fundamental right to

wear his hair the length he chooses in order to participate in school basketball. This is an

impermissible condition upon that privilege.

The Seventh Circuit in Schaill gave further explanation for their decision to uphold the

drug screening by stating, “For this reason, we believe that sports are quite distinguishable from

almost any other activity. Random testing of athletes does not necessarily imply random testing

of band members or the chess team.” Schaill, supra, at 1319. This distinction is important, as the

Seventh Circuit wanted to make known that because of their decision; they were not verbalizing

general support in other student populations. Band and chess teams also are extracurricular

activities and this was not a blanket decision for all extracurricular activities. Thus making it

clear that just because it is a voluntary school program for students and the fact that it is a

privilege, does not automatically absolve the student’s Constitutional rights within an

extracurricular activity.

The Trial Court relies heavily on Kelley v. Johnson, supra, for the proposition that a

haircut policy for police officers was reasonable. However, the Court in Kelley made clear that

its holding was based on the fact that the person seeking Fourteenth Amendment protection there

was doing so not as a civilian but as a police officer. See also Rathert v. Village of Peotone, 903


17

F.2d 510, 515 (7th

Cir. 1990)(upholding police department rule prohibiting male officers from

wearing earrings). Police departments are highly structured public safety entities (sometimes

almost paramilitary organizations), and states have a legitimate interest in regulating the speech,

appearance, clothing and conduct of their officers—considerations which do not apply to

civilians.

Kelley pointed out the differences between the rules applicable to police officers and

those which apply to the general public and recognized the state’s legitimate exercise of its

police power as it relates to the appearance of members of a law enforcement agency. If A.H.

were a police officer, Kelley would support Defendants’ position; however, its holding is

inapposite here because A.H. is a civilian. According to Defendants, the “problem” with Breen,

Crews and Arnold is that they were decided before the Supreme Court’s decision in Kelley.

However, Pence (supra) was decided after Kelley. Indeed, the Pence court specifically addressed

and distinguished its holding from the one in Kelley. By doing so, the Seventh Circuit made clear

that Kelley does not apply to haircut policies applied to civilians as opposed to police officers.

It appears the Trial Court is contending that schools may regulate the appearance of those

boys who voluntarily choose to join the basketball team. Whatever merit there is to this

distinction between “privileges” and “rights,” it loses its significance since the basketball team is

state funded, state sponsored and state controlled. See Shapiro v. Thompson, 394 U.S. 618, 627

n.6, 89 S.Ct. 1322, 1327, 22 L.Ed.2d 600 (1969), disapproved in part on other grounds by

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)(“This constitutional

challenge cannot be answered by the argument that public assistance benefits are a ‘privilege’

and not a ‘right.’”); Sherbert v. Verner, 374 U.S. 398, 404-5, 83 S.Ct. 1790, 10 L.Ed.2d 965


18

(1963)(citations omitted)(fundamental right may not be infringed by denying or placing

conditions on a privilege).

Even if playing school sports is a “privilege,” once a public school system provides an

interscholastic athletic program, it “must be administered without violation of the Fourteenth

Amendment, at least if the case involves an equal protection claim arising from gender-based

discrimination. In other words, participation in interscholastic sports, even if not a constitutional

right, is perhaps a non-constitutional ‘privilege’ protected by the Fourteenth Amendment.”

Robbins by Robbins v. Indiana High School Athletic Ass’n, Inc., 941 F.Supp. 786, 791 (S.D. Ind.

1996), supra citing Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d

287 (1970). Driving a motor vehicle is a privilege, but that fact does not permit the state to

impose haircut restrictions on male drivers.

The District Court cites Blau v. Fort Thomas Pub. Schl. Dist., 401 F. 3d 381, 394 (6th

Cir.

2005) (rejecting claim that a dress code’s prohibition on blue jeans violated student’s

fundamental rights under due process clause) and Gfel v. Rickelman, 441 F. 2d 444, 446 (6th

Cir.

1971) (rejecting claim that public school’s dress code that contained restrictions on hair length

violated student’s fundamental rights) to support its determination that A.H.’s fundamental right

to wear his hair the length he chooses is not protected within an extracurricular activity. In Blau,

the 6th

Cir. states, “Moreover, in an analogous area- school restrictions on hair length – we have

rejected the argument that a high school student’s desire to groom his hair however he wishes is

a fundamental right. See Gfell v. Rickelman, 32 Ohio Misc. 207, 441 F.2d 444, 446 (6th

Cir.

1971) (upholding school restrictions on hair length in a public school).” Blau, at 394-95. As the

6th

Cir. clearly stated in Gfell, “We are unable to agree with some courts that the freedom of

choosing one’s hair style is a fundamental right protected under the principles expressed in the


19

separate opinions in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L. Ed. 2d 510

(1965). See, e.g., Breen v. Kahl, 296 F. Supp. 702 (W.D. Wisc), aff’d 419 F. 2d 1034 (7th

Cir.

1969).” (446-47). The Blau and Gfell decisions cite Breen which shows that the Sixth Circuit

views the issue differently than the Seventh Circuit. The Seventh Circuit has held that the right

to wear one’s hair at any length is a fundamental right whereas the Sixth Circuit has rejected that

argument. Neither the Appellee or the Trial Court state any sort of valid reason for varying from

the earlier precedent of this Court.

3. The District Court erred in finding that the unwritten haircut policy which only places

restrictions on boys basketball team members and not girls basketball team members does

not violate equal protection.

In addition to infringing on A.H.’s fundamental right to wear his hair however he

chooses, the School’s haircut policy, which only applies to male athletes, also amounts to

gender-based discrimination in violation of equal protection. Crews, supra at 1266 (school policy

requiring only boy students to cut their hair constitutes denial of equal protection to males).

Gender-based discrimination must be substantially related to an important governmental

objective in order to survive constitutional scrutiny. Bohen v. City of East Chicago, 799 F.2d

1180, 1185 (7th

Cir. 1986)(citations omitted). Policies alleged to constitute gender discrimination

are subject to a heightened scrutiny. Nabozny v. Podlensy, 92 F.3d 446, 454 (7th

Cir. 1996).

State-sponsored schools may not discriminate between males and females based solely on gender

stereotypes. Id. at 456.

In Doe by Doe v. City of Belleville, 119 F. 3d 563, 581-02 (7th

Cir. 1997), vacated on

other grounds by 523 U.S. 1001, 118 S. Ct. 1183, 140 L.Ed. 2d 313 (1998), the Seventh Circuit

addressed the issue of the length of a man’s hair in relation to a failure to conform to gender

stereotypes, “…in the same way a man who is harassed because his voice is soft, his physique is


20

slight, his hair is long, or because in some other respect he exhibits his masculinity in a way that

does not meet his coworker’s idea of how men are to appear (Stacy Meyer is concerned that he

may have a team where boys are wearing ponytails and wants a public image of ‘clean cut’ boys)

and behave, is harassed “because of” his sex.” Id.

In an effort to show that the haircut policy is gender neutral, the School and the District

Court point out that the policy does not apply to all male athletes—only those on the basketball

team. However, one asserting a gender discrimination claim “need not prove a discriminatory

policy against an entire class; discrimination against the plaintiff because of her membership in

the class is by itself enough.” Bohen, supra at 1187, citing Adickes v. Kress & Co., 398 U.S. 144,

90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In other words, Plaintiffs do not have to show that

Defendants discriminate against all boys, only that they discriminated against A.H. because he is

a boy, in order to establish a violation of equal protection or Title IX.

Since the haircut policy is designed to perpetuate gender-based stereotypes of how male

basketball players should look, it cannot withstand constitutional scrutiny. States may treat

different classes of people differently, but equal protection requires that classifications must be

reasonable—not arbitrary—and must bear a rational relationship to the state’s objective. Reed v.

Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Pence, supra at 399-400(under both

substantive due process and equal protection analysis, test is whether government policy bears

rational connection to public purpose); Arnold, supra at 943 (policy must have reasonable

relation to legitimate state purpose to pass constitutional muster). A rule which denies players

the opportunity to qualify for participation in interscholastic sports based on gender violates

equal protection. Haas v. South Bend Comm. School Corp., 289 N.E.2d 495, 500-501 (Ind.


21

1972), abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind. 1994). Accordingly,

the School’s haircut policy violates equal protection as a matter of law.

Assuming that the more relaxed “rational basis” standard for equal protection claims

applies, instead of the strict scrutiny test applied to policies which infringe upon fundamental

rights, the School’s haircut policy fails to pass constitutional muster because it has no rational

connection to a legitimate state purpose. For the same reasons Defendants cannot meet their

substantial burden of justification, they cannot demonstrate a rational basis for the policy.

4. The District Court erred in finding that the unwritten haircut policy does not violate Title

IX.

Programs or activities which receive federal financial assistance are prohibited from

discriminating on the basis of sex. 20 U.S.C. § 1681(a). Title IX does not expressly apply to

school athletic programs; however, it does encompass policies or practices which deny students

equal athletic opportunity. Parker v. Franklin County Community School Corporation, 667 F.3d

910 (7th

Cir. 2012) (parents sued school district which scheduled more boys’ high school

basketball games on primetime nights than girls’ games; district court’s entry of summary

judgment in favor of defendants on Title IX and equal protection claims reversed). Parker

explains that the regulations provided “[n]o person shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, be treated differently from another person or otherwise

be discriminated against in any interscholastic, intercollegiate, club or intramural athletics.” 34

C.F.R.**106.41(a) Parker v. Franklin County Community School Corp., 667 F. 3d 910, 918 (7th

2012).

A plaintiff alleging gender discrimination may establish a prima facie case with indirect

proof: (1) membership in a protected class; (2) his performance met legitimate expectations; (3)

despite his performance, he was subjected to adverse action; and (4) similarly situated people


22

outside the protected class were treated more favorably. Hossack v. Floor Covering Associates of

Joliet, Inc., 492 F.3d 853, 860 (7th

Cir. 2007)(Title VII). In gender discrimination cases, the “first

element is really a non-issue because everyone is male or female.” Steinhauer v. Degolier, 359

F.3d 481, 484 (7th

Cir. 2004).

As for the second element, A.H. made the 8th

grade boys’ team. (Dk., 92, p. 7, finding

21). Regarding the third element, A.H. was kicked off the team for non-compliance with the

haircut policy. (Dk. 92, p. 8, finding 27) As to the fourth element, girls who play sports for

Greensburg school teams do not have to comply with the haircut policy which applies to

members of the boys’ basketball teams. (Dk. 81, p. 5, para. 22-3) The haircut policy unlawfully

discriminates because it prohibits males whose hair length does not conform to gender

stereotypes (like A.H.) from playing basketball. See Doe by Doe v. City of Belleville, 119 F.3d

563, 581-2 (7th

Cir. 1997), vacated on other grounds by 523 U.S. 1001, 118 S.Ct. 1183, 140

L.Ed.2d 313 (1998). As such, the School is discriminating against A.H. because of his sex. Since

the haircut policy violates the Fourteenth Amendment of the federal Constitution, it also violates

Article I, § 23 of the Indiana Constitution. Haas, supra at 501. Therefore, the Trial Court should

be reversed and this cause remanded for findings consistent with this Court’s opinion.

Here, the haircut policy is gender-based: it only applies to the boys’ basketball team.

Female members of the Greensburg basketball teams do not have to comply with the mandatory

haircut policy. (Doc. 81, #22)Some members have short hair and some members have long hair.

Id. As such, it is facially discriminatory against male students. It amounts to disparate treatment

of male athletes, including A.H., who are not allowed to participate in basketball if their hair is

too long.


23

The District Court in concluding there was no violation of Title IX explained: “While the

Haircut Policy was not implemented against any female student athletes, it was also not applied

to male student athletes who participated in sports other than basketball. In other words, as stated

above, the Policy as enforced does not discriminate against A.H. because of his gender.” Doc 92

#45. The District Courts evaluation is in direct conflict with the Seventh Circuits evaluation of

similar equal treatment claims. In Parker, the Seventh Circuit explained, “In analyzing the

plaintiffs’ claim, we must first determine whether a difference in scheduling has a negative

impact on one sex, and then determine whether that disparity is substantial enough to deny

members equality of athletic opportunity. Parker, supra, at 922.

Here, the male students at Greensburg Community School Corporation who want to

participate in basketball are required to comply with the mandatory haircut policy. (Doc 81 #16)

Female students at this same school, who want to participate in basketball, do not have to comply

with the mandatory haircut policy. Some female members of the basketball team have short hair

and some have long hair. (Doc. 81 #16) During the 2010-2011 season, A.H. and T.B. (both male

students) were both kicked off the basketball team because of their failure to conform to the

mandatory haircut policy. (Doc. 82 #34) During the 2012-2013 season, A.H. and another student

(both male) were prohibited from practicing with the basketball team because of their failure to

conform to the mandatory haircut policy. (Doc. 89 #5). There is no evidence to suggest that any

female student was denied an opportunity to participate due to how they wore their hair or for

failure to follow a grooming policy.

In Parker, the 7th

Circuit agreed that the disparity of girls basketball members playing 53

percent of their games on primetime nights, while boys play 95 percent of their games on

primetime nights was not an insignificant harm. “We agree that these harms are not insignificant


24

and may have the effect of discouraging girls from participating in sports in contravention of the

purposes of Title IX.” (The harms being that girls play 53% of games on primetime nights vs.

95% of boys on primetime nights, all else equal). In part, the 7th

Circuit based it on a policy

statement issued by HEW. 44 Fed. Reg. at 71,416. The policy states:

The Department will assess compliance…by comparing the availability,

quality and kinds of benefits, opportunities, and treatment afforded

members of both sexes. Institutions will be in compliance if the compared

program components are equivalent, that is, equal or equal in effect. Under

this standard, identical benefits, opportunities, or treatment are not

required, provided the overall affect of any differences is negligible”

Parker, supra, at 919.

Based on this logic, the fact that boys aren’t even able to participate in the basketball

program at Greensburg because of their failure to comply with a gender-based policy of the

mandatory haircut which their female counterparts aren’t required to abide by constitutes a

significant harm.

The District Court concludes under Title IX, “A school corporation “is subject to a

private damages action only where it is deliberately indifferent to known acts of

discrimination….” Id. At 605 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291

(1998) (emphasis in original).” Alluding that even if discrimination was found, liability wouldn’t

then follow as there was no way for them to know. The analysis of the Trial Court is again

flawed. In Parker, the Court explained, …” they brought a disparate treatment claim. They

challenge the defendants’ facially discriminatory policy of scheduling more boys’ basketball

games on primetime nights than girls’ basketball games because of sex. See, Anderson v.

Cornejo, 355 F.3d 1021, 1024 (7th

2004) (“[I]ntent’ (and thus disparate treatment) in

constitutional law means doing something because of, rather than in spite of (or with indifference


25

to), the prohibited characteristic.”); See also, Cmtys. For Equity v. Mich. High Sch. Athletic

Ass'n, 178 F.Supp.2d 805, 837-38 (WDMich.2001), aff'd, 377 F.3d 504 (6th Cir.2004), judgment

vacated on other grounds, 544 U..S 1012, 125 S.Ct. 1973, 161 L.Ed.2d 845 (2005), aff'd on

remand, 459 F.3d 676, 695 (6th Cir.2006). (stating that when there is a facially discriminatory

policy, the plaintiff needn’t show that the defendant acted with discriminatory animus but only

that the defendant intentionally treated one group less favorably because of their sex).

In Parker the Court pointed out, “"[F]unding recipients have been on notice that they

could be subjected to private suits for intentional sex discrimination under Title IX since 1979,

when [the Court] decided Cannon.". Parker, supra. The Supreme Court has "consistently

interpreted Title IX's private cause of action broadly to encompass diverse forms of intentional

sex discrimination." Parker, supra, at 921.

As far as notice goes for Title IX equal treatment violations. Greensburg Community

School Corporation was personally put on notice as they were one of the defendants in the Parker

v. Franklin County Community School Corp., 667 F. 3d 910 (7th

Cir. 2012). Yet A.H. and

another boy were kicked out of practice due to their failure to conform to the gender-based

stereotype of the mandatory haircut policy in November 2012. Accordingly, the Trial Court

should be reversed and this cause remanded for findings consistent with this Court’s opinion.

VII.

CONCLUSION

For all of the foregoing reasons, Patrick and Melissa Hayden, on behalf of their minor

child A.H. request this Court to reverse the judgment of the District Court and to order this case

remanded for entry of judgment in their favor.


26


FRAZIER LAW FIRM

/s/ Ronald W. Frazier

Attorney No. 13975-48

Attorney for Plaintiffs-Appellants

Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)

because this brief contains 8,217 words, excluding the parts of the brief exempted by Fed. R.

App. P. 32(a)(7)(B)(iii).


Ronald W. Frazier


Circuit Rule 31(e)(1) Certification

I hereby certify pursuant to Circuit Rule 31(e) that the contents of Appellants’ Brief

Appendix and Appendix are not available in non-scanned Portable Document Format (PDF).


Ronald W. Frazier



27

Certificate of Service

I hereby certify that a copy of the foregoing was served upon the following by depositing

same in the U.S. Mail on the 1st day of July, 2013 and addressed as follows:

William T. Hopkins

BARNES & THORNBURG

600 One Summit Square

Fort Wayne, IN 46802

Thomas E. Wheeler II

FROST BROWN TODD LLC

201 N. Illinois St., Suite 1900



CERTIFICATE OF COMPLIANCE

I certify that the documents contained in this appendix are taken from the record on

appeal and contain the documents required by Federal Rules of Appellate Procedure 30(a) and

(b).

I further certify that the appendix has not been reduced to digital format because these

documents do not exist in an electronic format other than scanned files.

s/Ronald W. Frazier



28

NO. 13-1757

______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS,

SEVENTH CIRCUIT

______________________________________________________________________________

PATRICK HAYDEN and MELISSA HAYDEN, on behalf of their minor child, A.H.

Plaintiffs – Appellants,

v.

GREENSBURG COMMUNITY SCHOOL CORPORATION, et al.

Defendants – Appellees.

______________________________________________________________________________

Appeal from the United States District Court

For the Southern District of Indiana

Indianapolis Division

Case No. 1:10-cv-1709-RLY-DML

Richard L. Young, Judge

______________________________________________________________________________

REQUIRED SHORT APPENDIX

______________________________________________________________________________

Ronald W. Frazier

FRAZIER LAW FIRM

612 East Market Street


Telephone: 317-916-9999

Facsimile: 317-917-7730

Email: [email protected]

ATTORNEY FOR APPELLANTS



1

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

PATRICK HAYDEN and MELISSAHAYDEN, on behalf of their Minor Child,A.H.,

Plaintiffs,

vs.

GREENSBURG COMMUNITY SCHOOLCORPORATION, Greensburg CommunitySchool Board Members, LISA TRESSLER,in her official and individual capacities,DAVID WEIGEL, in his official andindividual capacities, VALERIEMOORMAN, in her official and individualcapacities, DAVE MEYER, in his officialand individual capacities, AL MOORE, inhis official and individual capacities, TONYOWENS, in his official and individualcapacities, STEVE TAYLOR, in his officialand individual capacities, GreensburgCommunity Schools Superintendent TOMHUNTER, in his official and individualcapacities, Greensburg Junior High PrincipalDAVE STROUSE, in his official andindividual capacities, Greensburg JuniorHigh Assistant Principal and AthleticDirector DEBBIE SMITH, in her officialand individual capacities, GreensburgVarsity Head Boys’ Basketball CoachSTACY MEYER, in his official andindividual capacities,

Defendants.

)))))) 1:10-cv-1709-RLY-DML))))))))))))))))))))))))))

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 1:10-cv-01709-RLY-DML Document 92 Filed 03/13/13 Page 1 of 22 PageID #: 795(35 of 56)Case: 13-1757 Document: 10 Filed: 07/01/2013 Pages: 56

2

The Greensburg Community School Corporation (“School Corporation”) instituted

a mandatory haircut policy (the “Haircut Policy”) that requires members of the boys’

basketball teams in both the junior high and high school to wear their hair above their ears

and collar. Coach Stacy Meyer (“Coach Meyer”), the boys’ high school head varsity

coach, established the Haircut Policy pursuant to School Board Policy 5511 and the

School Corporation’s Athletic Code.

In the fall of 2010, Plaintiffs’ son, A.H., tried out for the Greensburg Junior High

School boys’ basketball team, even though his hair was not in compliance with the

Haircut Policy. The junior high school boys’ basketball coaches informed A.H. that if he

did not comply with the Haircut Policy, he could still be a member of the team, but would

be unable to play in basketball games. After Melissa Hayden, A.H.’s mother, met with

school officials, A.H. was informed that if he did not comply with the Haircut Policy, he

would be removed from the team. A.H. declined to cut his hair, taking the position that

the Haircut Policy violated his constitutional rights. A few days later, he was removed

from the team.

Plaintiffs, on behalf of A.H., bring the present action against the School

Corporation; Greensburg Community School Board Members Lisa Tressler, David

Weigel, Valerie Moorman, Dave Meyer, Al Moore, Tony Owens, and Steve Taylor

(collectively “School Board”); as well as, the superintendent of Greensburg Community

Schools, Tom Hunter (“Superintendent Hunter”); the principal of Greensburg Junior High

School, Dave Strouse (“Principal Strouse”); the assistant principal and athletic director of


1 The Amended Complaint does not contain a Count X; Count IX is followed by CountXI.

3

Greensburg Junior High School, Debbie Smith (“Assistant Principal Smith”); and Coach

Meyer (collectively “Individual Defendants”). Plaintiffs’ Amended Complaint is

confusing, and raises a host of claims against the Defendants in both their official and

individual capacities. As best the court can discern, Plaintiffs allege that the Haircut

Policy, as applied to male basketball players, constitutes gender discrimination in

violation of A.H.’s right to equal protection (Am. Compl., Count II ¶ 17). Plaintiffs

further allege that the School Board and the Individual Defendants, in both their

individual and official capacities, denied Plaintiffs a hearing before the School Board

before terminating A.H. from the team, and that the Haircut Policy that they enforced and

condoned infringed A.H.’s fundamental right to wear the hairstyle of his choice, in

violation of A.H.’s right to procedural and substantive due process (Id., Count III ¶ 2; IV

¶¶ 3-5, 12; Count V ¶¶ 9, 12; Count VI ¶¶ 9, 22; Count VII ¶ 8). Plaintiffs further allege

that: (1) the School Corporation discriminated against A.H. based on his gender, in

violation of 20 U.S.C. § 1681 (“Title IX”) (Id., Count XI);1 (2) that Superintendent

Hunter, Principal Strouse, and Assistant Principal Smith retaliated against A.H. for

challenging the Haircut Policy (Id. Count I ¶ 99; Count VI ¶ 22; Count VII ¶ 6; Count

VIII ¶ 5, (3) that Superintendent Hunter, Principal Strouse, and Assistant Principal Smith

intentionally disclosed to Northern Wells Middle School A.H.’s confidential information

(Id. Count I ¶¶ 101-02; Count VI ¶ 15; Count VIII ¶ 4); and (4) that the Defendants, in


4

both their individual and official capacity, violated A.H.’s right to education under Article

8 of the Indiana Constitution (Count XII).

During a telephonic conference on July 30, 2012, the parties agreed to submit this

case to the court for final resolution. The parties have since filed a Joint Stipulation of

Facts, and proposed Findings of Facts and Conclusions of Law. Plaintiffs’ proposed

Findings of Fact and Conclusions of Law did not address the following claims: (1)

Plaintiffs’ Title IX retaliation claim, (2) Plaintiff’s claims for the alleged release of

confidential information; or (3) Plaintiffs’ right to education claim under Article 8 of the

Indiana Constitution. In the absence of any evidence or argument in support of those

claims, the court finds those claims are WAIVED.

The court now issues its Findings of Facts and Conclusions of Law pursuant to

Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

1. Plaintiffs, Patrick and Melissa Hayden, live in Greensburg, Indiana, and are the

parents of A.H., a male who was fourteen years old when this case commenced.

(Am. Complaint ¶¶ 4, 6).

2. The School Corporation is located in south-central Indiana with administrative

offices located in Greensburg, Indiana. The School Corporation serves 2,290

students through one elementary school, one junior high school, and one senior

high school. (Corporation Snapshot, Greensburg Community Schools #1730,

http://mustang.doe.state.in.us/SEARCH/snapshot.cfm?corp=1730).


5

3. The School Corporation is a recipient of federal funding. (Am. Complaint ¶ 18).

4. Superintendent Hunter is the superintendent of the School Corporation. (Id. ¶ 10).

5. Principal Strouse is the principal at Greensburg Junior High School. (Id. ¶ 11).

6. Assistant Principal Smith is the assistant principal and athletic director at

Greensburg Junior High School. (Id. ¶ 12).

7. Coach Meyer is the head varsity boys’ basketball coach at Greensburg High

School. (Id. ¶ 13).

8. The School Corporation administrators operate under the direction and control of

the School Board, which is comprised of President Lisa Tressler, Vice President

David Weigel, Secretary Valerie Moorman, and School Board Members Dave

Meyer, Al Moore, Tony Owens, and Steve Taylor. (Id. ¶ 9).

9. The School Board is the ultimate decision-maker for the School Corporation.

(Greensburg Community Schools Bylaws & Policies,

http://www.neola.com/greensburg-in/).

10. At all relevant times, each Defendant acted under color of state law. (Am.

Complaint ¶ 14).

I. The Haircut Policy

11. The School Board has adopted Policy 5511, entitled “Dress and Grooming,” which

provides, in pertinent part, that “the Superintendent shall establish such grooming

guidelines as are necessary to promote discipline, maintain order, secure the safety

of students, and provide a healthy environment conducive to academic purposes.”


6

(Id. ¶ 22).

12. Policy 5511 also states that “[s]uch guidelines shall establish the dress

requirements for members of athletic teams, bands, and other groups representing

the [School] Corporation at a public event,” and “designate[s] the principal as the

arbiter of student dress and grooming in his/her building.” (Id.).

13. Furthermore, Policy 5511 provides that “[e]ach principal, in consultation with

his/her staff, shall develop a dress code which complies with School Board Policy

5511.” The dress code established by the principal “should delineate what types of

clothing or manner of clothing does not comply with the School Board Policy and

why such clothing or manner of wear is not permitted.” (Id. 29).

14. In connection with these policies, the School Board approved the Greensburg

Junior High School Athletic Code of Conduct (“Code”), which governed student

athletes. (Id. ¶¶ 32-33). The Code contains a specific section on hair styles, that

provides, in pertinent part, that:

Hair [s]tyles which create problems of health and sanitation,obstruct vision, or call undue attention to the athlete are notacceptable. Athletes may not wear haircuts that includeinsignias, numbers, initials, or extremes in differing lengths. Mohawks are not acceptable, and hair coloring is notpermitted. Each varsity head coach will be responsible fordetermining acceptable length of hair for a particular sport. Ask a coach before trying out for a team if you have aquestion regarding hair styles.

(Id. ¶ 32).

15. Pursuant to the Code, Coach Meyer, as the Greensburg High School Boys’


7

Basketball Coach, established the Haircut Policy. (Id. ¶ 13). The Haircut Policy

applies to both the Junior High School and High School boys’ basketball teams,

and requires that basketball players have their hair cut above their ears, eyebrows,

and collar. (Id. ¶ 15).

II. Application of the Haircut Policy to A.H.

16. On October 25, 2010, A.H. tried out for the Greensburg Junior High School eighth

grade boys’ basketball team. (Id. ¶ 35).

17. At that time, the length of A.H.’s hair did not comply with the Haircut Policy.

(Id. ¶¶ 33, 45). The coaches informed A.H. that if he failed to follow the Haircut

Policy, he could still be a member of the basketball team, but would not be able to

participate in practices or games. (Id. ¶¶ 46-47).

18. On October 26, 2010, Melissa Hayden met with Coach Meyer to discuss the

Haircut Policy. (Id. ¶¶ 49-50).

19. Coach Meyer explained to Melissa Hayden that the purpose of the Haircut Policy

was to promote an image of “clean cut” boys, as well as to institute “uniformity”

for the sake of team unity. (Id. ¶ 52).

20. On October 27, 2010, Melissa Hayden met with Principal Strouse to discuss the

Haircut Policy. (Id. ¶ 56). Principal Strouse informed her that he supported the

Haircut Policy and would not excuse A.H. from being subject to it. (Id. ¶ 57).

21. On October 29, 2010, A.H. learned that he made the Greensburg Junior High

School boys’ basketball team. (Id. ¶ 60).


8

22. Although A.H.’s hair did not conform with the Haircut Policy, he was permitted to

practice with the team on October 29, 2010, November 1, 2010, and November 2,

2010. (Id. ¶ 61).

23. During follow-up meetings with administrators at Greensburg Junior High School,

Plaintiffs took the position that the Haircut Policy was unconstitutional, and that

A.H. should not be required to comply with it. (Id. ¶ 66).

24. On November 1, 2010, Melissa Hayden met with Superintendent Hunter regarding

her objections to the Haircut Policy. (Id. ¶¶ 62, 64). Superintendent Hunter

disagreed with Melissa Hayden’s objections, and declared his intent to enforce the

Haircut Policy. (Id. ¶ 63).

25. Plaintiffs requested a hearing before the School Board, but their request was

denied. (Id. ¶¶ 76, 88).

26. On November 2, 2010, the coaches informed the members of the boys’ basketball

team that any student who did not comply with the Haircut Policy by November 4,

2010, would be removed from the team. (Id. ¶ 73).

27. On November 4, 2010, A.H. came to practice with his hair longer than the Haircut

Policy permitted, and he was terminated from the team. (Id. ¶¶ 78-79). Another

player, T.B., was also noncompliant with the Haircut Policy, and, like A.H., he

was terminated from the team. (Id. ¶¶ 80-82).

III. Remainder of the 2010-2011 School Year

28. On November 5, 2010, A.H. moved out of the School Corporation, and went to


9

live with his maternal grandparents in Bluffton, Indiana. (Id. ¶¶ 89, 92).

29. On November 12, 2010, the Decatur Circuit Court granted A.H.’s maternal

grandparents’ Verified Petition for Appointment of Co-Guardians, and entered an

Order appointing A.H.’s maternal grandparents as his co-guardians. (Docket # 31,

Deposition of John Warwick at 63; Dep. Ex. 12).

30. The effect of the court order placed A.H.’s maternal grandparents as his permanent

legal guardians, thereby changing his legal settlement from Greensburg to the

Northern Wells School Corporation. (Id.).

31. Plaintiffs believed that A.H. would be permitted to play basketball on the Northern

Wells Middle School boys’ basketball team; however, he was ultimately not

permitted to do so. (Id. ¶¶ 91, 95-96, 103).

IV. 2011-2012 School Year

32. Following the conclusion of the 2010-2011 school year, Plaintiffs terminated the

guardianship order, and A.H. moved back to Greensburg to attend Greensburg

High School for the 2011-2012 school year as a freshman. (Docket # 36, Ex. 2,

Termination of Guardianship Order; Docket # 36, Ex. 4, Affidavit of A.H. ¶ 2).

33. A.H. tried out for the Greensburg High School boys’ basketball team, and earned a

spot on the freshman squad. (Docket # 50, Affidavit of Melissa Hayden (“Melissa

Hayden Aff.”) ¶¶ 8-9; Docket # 61, Affidavit of A.H. ¶¶ 5-6)

34. A.H. played basketball for Greensburg High School throughout the entire 2011-

2012 basketball season with his hair cut in compliance with the Haircut Policy.


10

(Melissa Hayden Aff. ¶¶ 7, 10).

35. Since the 2011-12 basketball season ended, A.H. has consistently worn his hair

longer then the Haircut Policy allows.

V. A.H. Transfers to Norwell High School

36. On November 5, 2012, A.H. went to the first day of tryouts for the Greensburg

High School boys’ basketball team. (Defendants’ Suggestion of Mootness ¶ 5).

37. At that time, A.H.’s hair was not in compliance with the Haircut Policy, and the

coaches advised him that he would not be permitted to practice until he complied

with the Haircut Policy. (Id.).

38. Shortly thereafter, A.H. transferred to Norwell High School again to live with his

maternal grandparents. (Id. Ex. 1).

39. Although A.H.’s parents, Patrick and Melissa Hayden, are currently separated,

they have joint custody of A.H. and his siblings. (Separation Agreement, Docket #

90, Ex. 3).

40. A.H.’s mother, Melissa Hayden, resides in Bluffton, Indiana with her parents.

(Melissa Hayden Aff. ¶ 14, Docket # 90).

41. A.H.’s father, Patrick Hayden, continues to live in the Greensburg School District.

(Id. ¶ 17).

42. Melissa Hayden testified that she and Patrick Hayden “may” allow A.H. to return

to Greensburg for his junior or senior year. (Id. ¶ 21).

43. A.H. testified that if he returns, he will continue to wear his hair longer than the


11

Haircut Policy allows. (Affidavit of A.H. ¶ 8, Docket # 90).

CONCLUSIONS OF LAW

1. To the extent any of the foregoing findings of fact is a conclusion of law, it is

hereby adopted as a conclusion of law. To the extent any of the conclusions of law

set forth below is a finding of fact, it is hereby adopted as a finding of fact.

2. The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§

1331, 1343 and 1367(a).

I. Section 1983 Constitutional Claims

3. Plaintiffs’ federal constitutional claims against all Defendants in their individual

capacity are brought pursuant to 42 U.S.C. § 1983 (“Section 1983"). That section

provides a private cause of action against a person who, acting under color of state

law, deprives an individual of any “rights, privileges, or immunities secured by the

Constitution and laws” of the United States. Livadas v. Bradshaw, 512 U.S. 107,

132 (1994) (quoting 42 U.S.C. § 1983).

4. To prevail on a Section 1983 claim, a plaintiff must show that he or she suffered

the violation of a federal constitutional right by one acting under color of state law.

London v. RBS Citizens, N.A., 600 F.3d 742, 745-46 (7th Cir. 2010).

5. There is no dispute that the Defendants were acting under color of state law at all

relevant times. Thus, the issue for the court is whether A.H.’s rights were violated

under the United States Constitution.

A. Due Process Claims


12

6. Plaintiffs bring both a procedural and a substantive due process claim against the

School Board and the Individual Defendants in their official capacity. A claim

against these officials in their official capacity is tantamount to a claim against the

School Corporation, and the court will treat it as such. See, e.g., Sow v. Fortville

Police Dep’t, 636 F.3d 293, 300 (7th Cir. 2011) (recognizing that a claim against a

municipal officer in his or her official capacity is construed as a claim against the

municipal entity itself).

7. Plaintiffs also bring these same claims against the School Board and the Individual

Defendants in their individual capacities. Specifically, Plaintiffs allege that the

School Board and the Individual Defendants denied A.H. procedural due process,

in the form of a hearing or a meeting as proscribed by the Greensburg

Administrative Guidelines, prior to Coach Meyer’s decision (supported by those

administrators) to terminate A.H. from the basketball team. Plaintiffs further

allege that the School Board and the Individual Defendants violated A.H.’s

“fundamental right to wear the hairstyle of his choice,” and that their enforcement

of the Haircut Policy denies A.H. “an ingredient of personal freedom protected by

the United States Constitution.” Plaintiffs seek injunctive and declaratory relief –

i.e., that the Individual Defendants be ordered “to allow: (1) A.H. to be able to play

basketball and to enjoin Defendants from terminating A.H. from the basketball

team and/or from punishing A.H. in any manner while a member of the basketball

team due to his hairstyle; [and to allow] (2) A.H. to reenroll into Greensburg


13

Schools . . . .” (See Am. Complaint, Count III ¶¶ 2(c), 6, Section IV ¶¶ 3, 4, 5, 12).

Plaintiffs also seek compensatory damages against the Individual Defendants sued

in their individual capacities. (Id. Count V ¶ 12; Count VI ¶ 22; Count VII ¶ 8;

Count IX ¶ 7).

8. The court’s jurisdiction is limited to live cases and controversies. See U.S. CONST.

art. III, § 2. In other words, the case must contain an actual, ongoing controversy

throughout the pendency of litigation. Bd. of Educ. of Downer’s Grove Grade Sch.

Dist. No. 58 v. Steven L., 89 F.3d 464, 467 (7th Cir. 1996).

9. “A case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486,

496 (1969).

10. To the extent A.H. seeks injunctive relief against the School Corporation, A.H.’s

transfer out of the Greensburg School District arguably moots his due process

claims, because the Amended Complaint is limited to the 2010-2011 basketball

season.

11. “A case can avoid dismissal for mootness as capable of repetition yet evading

review” when: “‘(1) the challenged action [is] in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party would be subjected to the same action

again.’” Aslin v. Fin. Indus. Reg. Auth., Inc., – F.3d – , 2013 WL 11869, at * 4

(7th Cir. 2013) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per


14

curiam)); Stotts v. Comty. Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir. 2000).

12. As an initial matter, A.H. is subject to the Haircut Policy only during the high

school basketball season, which generally lasts from November through March of

a given school year. This four month time span is too short for Plaintiffs’ claims to

be fully litigated. Second, there is a reasonable possibility that A.H. will return to

Greensburg and attempt to play basketball under Coach Meyer with a

noncompliant hairstyle, prompting yet another challenge to Coach Meyer’s Haircut

Policy. Melissa Hayden testified that she and Patrick Hayden “may allow A.H. to

return to Greensburg for his junior or senior school years so that he can be with his

childhood friends,” and A.H. testified that if he returns, “it is [his] intention to

keep [his] hair longer than the unwritten hair cut policy.” Thus, the court could

easily be faced with this factual scenario next year. (Melissa Hayden Aff. ¶ 21,

Docket # 90; Affidavit of A.H. ¶ 8, Docket # 90 ).

13. The procedural history of this case lends credence to this possibility. In November

2010, A.H. left Greensburg to live with his maternal grandparents and attend

Northern Wells, and came back to Greensburg to play basketball as a freshman for

the 2011-2012 season. A.H. currently resides with his maternal grandparents in

Bluffton, Indiana, and attends Northern Wells. Accordingly, the court finds this

case falls within the exception to the mootness doctrine.

14. Moreover, Plaintiffs seek compensatory damages from the Individual Defendants.

Those claims are not moot. Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir.


15

2005) (“ . . . injuries compensable in monetary damages can always be redressed

by a court judgment”).

15. For the reasons set forth below, however, Plaintiffs’ claims cannot survive on the

merits.

1. Due Process Claims Against the School Corporation

16. The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person

of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV

§ 1.

17. A procedural due process claim requires a plaintiff to show: (1) the violation of a

liberty or property interest (2) without adequate due process of law. Halfhill v.

Northeast Sch. Corp., 472 F.3d 496, 500 (7th Cir. 2006).

18. A.H. has no constitutionally recognized property interest in participating in

extracurricular sports. Indiana High Sch. Ass’n, Inc. v. Watson, 938 N.E.2d 672

(Ind. 2010); see IHSAA v. Carlberg, 694 N.E.2d 222, 224 (Ind. 1997) (holding that

“a student has no constitutional right to participate in interscholastic athletics”).

19. To the extent Plaintiffs’ claim that A.H. had a protectable liberty interest in the

hairstyle of his choice, Plaintiffs fare no better.

20. A citizen’s choice of hairstyle is an element of liberty protected by the Fourteenth

Amendment. Holsapple v. Woods, 500 F.2d 49, 51-52 (7th Cir. 1974) (citing

Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969); see also Crews v. Cloncs, 432

F.2d 1259, 1266 (7th Cir. 1970). The issue here is whether that constitutional


16

protection applies equally to a public school student who wishes to play

interscholastic sports.

21. Public schools may lawfully enact and enforce dress and grooming policies. Blau

v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 394 (6th Cir. 2005) (rejecting claim

that a dress code’s prohibition on blue jeans violated student’s fundamental rights

under due process clause); Gfell v. Rickelman, 441 F.2d 444, 446 (6th Cir. 1971)

(rejecting claim that public school’s dress code that contained restrictions on hair

length violated student’s fundamental rights).

22. Moreover, schools may condition participation in interscholastic sports upon “a

degree of regulation even higher than that imposed on students generally.”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995). Indeed, “students

who voluntarily participate in school athletics have reason to expect intrusions

upon normal rights and privileges, including privacy.” Id.

23. In a case upholding the constitutionality of a random urine testing program

instituted by the Tippecanoe School Corporation for school athletes and

cheerleaders, the Seventh Circuit noted that the Indiana High School Athletic

Association imposes “extensive requirements” upon “individuals participating in

interscholastic athletics” and “[s]uch regulations have been upheld against a

variety of challenges under the federal constitution and Indiana law.” Schaill by

Kross v. Tippecanoe Co. Sch. Corp., 864 F.2d 1309, 1319 & n.9 (7th Cir. 1988).

Notably, the decision cited two cases upholding the constitutionality of grooming


17

policies as applied to interscholastic athletes. Id. n. 9 (citing Davenport v.

Randolph Cty. Bd. of Educ., 730 F.2d 1395 (11th Cir. 1984) (upholding rule

requiring interscholastic athletes to be clean shaven); Humphries v. Lincoln Parish

Sch. Bd., 467 So.2d 870 (La. App. 1985) (upholding removal of interscholastic

athletes for violation of rule prohibiting facial hair during football season)).

24. As a student wishing to participate in interscholastic sports in the Greensburg

School Corporation, A.H. is subject to reasonable regulations, including Coach

Meyer’s Haircut Policy. Thus, to the extent A.H. wishes to play basketball under

Coach Meyer, A.H. does not have a protectable liberty interest to wear the

hairstyle of his choice.

25. Even if A.H’s liberty interest was violated, Plaintiffs received adequate due

process.

26. In determining what process is due, the court considers three factors: “(1) the

private interest affected by the official action; (2) the risk of erroneous deprivation

of such interest through the procedures used and the probable value, if any, of

additional procedural protections; and (3) the government’s interest in maintaining

the current procedures.” Halfhill, 472 F.3d at 502 (citing Mathews v. Eldridge,

424, U.S. 319, 335 (1976).

27. Melissa Hayden had separate meetings with Coach Meyer, Principal Strouse, and

Superintendent Hunter before Coach Meyer terminated A.H. from the basketball

team.


18

28. A.H.’s private interest in wearing a hairstyle prohibited by the Haircut Policy does

not outweigh the interest of the School Corporation or, more specifically, of Coach

Meyer, in maintaining the Haircut Policy. Moreover, the risk of an erroneous

deprivation of A.H.’s liberty interest through the procedures used – in this case,

three separate meetings with school officials – was minimal, and additional

procedural protections would be of little value.

29. A substantive due process claim requires a plaintiff to show that the government’s

policy is completely arbitrary and lacking any rational connection to a legitimate

government interest. Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000).

30. The Haircut Policy is not the product of arbitrary government action. Kelley v.

Johnson, 425 U.S. 238, 248 (1976); see also Greater Chicago Combine & Ctr.,

Inc. v. City of Chicago, 431 F.3d 1065, 1071-72 (7th Cir. 2005) (noting that

“governmental action passes the rational basis test if a sound reason may be

hypothesized”) (quoting Pro-Eco., Inc. v. Bd. of Comm’rs of Jay County, 57 F.3d

505 (7th Cir. 1995))). The Haircut Policy is rationally related to the legitimate

school interest of advancing an image of “clean cut boys” and uniformity for the

sake of team unity. Kelley, 425 U.S. at 248-49. Blau, 401 F.3d at 394 (finding

that plaintiff “cannot tenably claim that the dress code lacks a rational basis”);

Gfell, 441 F.2d at 446-47 (upholding district court’s finding that a rational

relationship existed between the school’s dress code and the “maintenance of

discipline, promotion of safety in certain courses, and the furtherance of valid


19

educational purposes, including the teaching of grooming, discipline, and

etiquette.”).

31. Accordingly, Plaintiffs’ Section 1983 procedural and substantive due process

claims against the School Corporation are dismissed.

2. Due Process Claims Against the Individual Defendants

32. In order to succeed on a claim for individual liability under Section 1983, a

plaintiff must show that “the individual defendant caused or participated in a

constitutional deprivation.” Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d

1014, 1039 (7th Cir. 2003) (quotation omitted).

33. For the reasons set forth above, A.H. has not established the violation of a

protected liberty or property interest under the Due Process Clause of the

Fourteenth Amendment.

34. Accordingly, Plaintiffs’ Section 1983 procedural and substantive due process

claims against the Individual Defendants are dismissed.

B. Equal Protection Claim Against all Defendants

35. Plaintiffs allege that “A.H. is being denied his Fourteenth Amendment right to

equal protection of the laws because the mandatory haircut policy is not applied to

any girl trying out for any sport.” (Count II, ¶ 17a.).

36. “An equal protection plaintiff . . . need not prove a discriminatory policy against

an entire class; discrimination against the plaintiff because of [his] membership in

the class is by itself enough.” Bohen v. City of East Chicago, Ind., 799 F.2d 1180,


20

1187 (citing Adickes v. Kress & Co., 398 U.S. 144, 152 (1970)).

37. “To show a violation of the Equal Protection Clause, plaintiffs must prove that the

defendants’ actions had a discriminatory effect and were motivated by a

discriminatory purpose.” Chavez v. Illinois State Police, 251 F.3d 612, 635-36

(7th Cir. 2001). As to the first element, in order “[t]o prove discriminatory effect,

the plaintiffs are required to show that they are members of a protected class, that

they are otherwise similarly situated to members of the unprotected class, and that

plaintiffs were treated differently from members of the unprotected class.” Id. at

636. In other words, Plaintiffs must show that: (1) Defendants treated him

differently from others similarly situated; (2) intentionally treated him differently

because of his membership in the class to which he belonged (male athletes); and

(3) this different treatment was not rationally related to a legitimate government

interest. Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002).

38. “The gravamen of equal protection lies not in the fact of deprivation of a right butin the invidious classification of persons aggrieved by the state’s action. Aplaintiff must demonstrate intentional or purposeful discrimination to show anequal protection violation. Discriminatory purpose, however, implies more thanintent as volition or intent as awareness of consequences. It implies that adecisionmaker singled out a particular group for disparate treatment and selectedhis course of action at least in part for the purpose of causing its adverse effects onthe identifiable group.”

Nabozny v. Podlesny, 92 F.3d 446, 453-54 (7th Cir. 1996).

39. There is no evidence that the School Corporation, Coach Meyer, or any of the

other Individual Defendants intentionally discriminated against A.H. because of


21

his membership in the class of male athletes. The Haircut Policy applied only to

those male athletes who played basketball under Coach Meyer. It did not apply to

male athletes who played sports other than basketball, such as football, track, or

wrestling. Simply put, the Policy is not based on unlawful gender classifications.

40. Plaintiffs’ claim against the School Corporation and the Individual Defendants

cannot survive. Accordingly, Plaintiffs’ equal protection claim against the

Defendants is dismissed.

II. Title IX Claim

41. Plaintiff also brings a claim of gender discrimination against the School

Corporation under Title IX.

42. Title IX prohibits discrimination on the basis of sex in educational programs or

activities that are supported by federal financial assistance. See 20 U.S.C. §

1981(a).

43. While Title IX explicitly provides an administrative enforcement scheme, “the

Supreme Court has recognized an implied private right of action for the victim of

illegal discrimination to enforce the statute, as well as the ability to recover

monetary damages.” Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d

599, 604-05 (7th Cir. 2008) (citing Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S.

60, 76 (1992)) (internal citation omitted).

44. A school corporation “is subject to a private damages action only where it is

deliberately indifferent to known acts of discrimination . . . .” Id. at 605 (citing


22

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) (emphasis in

original).

45. While the Haircut Policy was not implemented against any female student athletes,

it was also not applied to male student athletes who participated in sports other

than basketball. In other words, as stated above, the Policy as enforced does not

discriminate against A.H. because of his gender.

46. Because no act of discrimination occurred, the School Corporation is not liable

under Title IX. Plaintiffs’ Title IX claim is therefore dismissed.

CONCLUSION

47. For the reasons set forth above, the court finds in favor of the Defendants on all

counts alleged in Plaintiffs’ Amended Complaint. A judgment shall issue in favor

of the Defendants and against the Plaintiffs in a separate document.

SO ORDERED on this 13th day of March 2013.

RICHARD L. YOUNG, CHIEF JUDGEUnited States District CourtSouthern District of Indiana

Distributed Electronically to Registered Counsel of Record.

__________________________________

RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana


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