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No. 02-2793
IN THE SUPREME COURT OF THE UNITED STATES
SAINT TAMMANY PARISH SCHOOL CORPORATION, et al.Petitioner,
v.
Patrick and Melissa AMENDOLA, on behalf of their minor child, DannyRespondent.
On Writ of Certiorari to theUnited States Court of Appeals
for the Fourteenth Circuit
Brief for Respondent
Oral Argument Requested
January 11, 2016
Team No. 12Counsel for Respondent
QUESTIONS PRESENTED
I. WHETHER AN INDIVIDUAL’S PERSONAL CHOICE TO HAVE LONG HAIR IS AN EXPRESSION PROTECTED BY THE DUE PROCESS CLAUSE AND WHETHER AN INDIVIDUAL’S EQUAL PROTECTION RIGHTS HAVE BEEN VIOLATED WHEN A SCHOOL ESTABLISHES A HAIRCUT POLICY ONLY APPLICABLE TO BOYS ON THE BASEBALL TEAM.
II. WHETHER THE BASEBALL RULE, WHICH IS ROOTED IN THE OUTDATED AND INEQUITABLE ASSUMPTION OF RISK DEFENSE, WAS PROPERLY REJECTED BY THE COURT OF APPEALS.
i
TABLE OF CONTENTS
PAGE
QUESTIONS PRESENTED .......................................................................................................... i
TABLE OF AUTHORITIES ........................................................................................................ iv
STATEMENT OF FACTS ............................................................................................................ 1
SUMMARY OF ARGUMENT ..................................................................................................... 3
ARGUMENT...................................................................................................................................5
I. THE FOURTEENTH CIRCUIT COURT OF APPEALS PROPERLY HELD RESPONDENT’S PERSONAL CHOICE OF HAIR LENGTH IS A LIBERTY INTEREST PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE SCHOOL CORPORATION DID NOT PROVIDE APPROPRIATE JUSTIFICATION WHEN INSTITUTING THEIR HAIR CUT POLICY. .........................................................................................5
A. Respondent’s personal choice to have long hair is a fundamental right protected under the Fourteenth Amendment’s Due Process Clause and the School Corporation failed to provide a compelling justification to restrict Respondent’s fundamental right through its Haircut Policy………………....................................6
1. Hair length is a fundamental right because it is a personal expression deeply rooted in the history and tradition of the United States and implicit in the ordered liberty of the United States. ........................................................7
2. The School Corporation did not provide a compelling justification when instituting the Haircut Policy and therefore did not satisfy strict scrutiny analysis. ..............................................................................................................8
B. Alternatively, Respondent’s choice to wear his hair long is a non- fundamental right protected by the Fourteenth Amendment’s Due Process Clause because hair length is a personal choice central to individual dignity and autonomy and the School Corporation did not provide adequate justification for the Haircut Policy . ...........................................................................
1. Hair length is a non-fundamental right protected by the Fourteenth Amendment’s Due Process Clause because it is central to individualdignity and autonomy. ......................................................................................10
ii
2. The School Corporation failed to provide appropriate justificationfor the Haircut Policy. ......................................................................................11
II. THE FOURTEENTH CIRCUIT COURT OF APPEALS CORRECTLY HELD THE HAIRCUT POLICY VIOLATED RESPONDENT'S EQUAL PROTECTION RIGHTS, AS IT ONLY APPLIED TO MALES ON THE BASEBALL TEAM, AND PROMOTING AN IMAGE OF “CLEAN CUT” BOYS AND TEAM UNIFORMITY ARE NOT IMPORTANT GOVERNMENTAL OBJECTIVES. .......13
A. The Haircut Policy is facially discriminatory because it only references the boys’ baseball team. .........................................................................................14
B. In the alternative, the Haircut policy had a disproportionate impact and a discriminatory intent or purpose. ............................................................................14
C. Promoting an image of “clean cut boys” and team uniformity are not important governmental objectives. .......................................................................15
III. THIS COURT SHOULD AFFIRM THE DECISION OF THE FOURTEENTH CIRCUIT BECAUSE THE BASEBALL RULE IS OUTDATED, INEQUITABLE, AND AGAINST PUBLIC POLICY..............................................................................16
A. Widespread adoption of the comparative negligence standard has made the Baseball Rule obsolete. ................................................................................... 18
C. The Baseball Rule unfairly limits Respondent’s recovery while protecting stadium owners and operators who are in the best position to protect spectators from the risks of projectiles and therefore is against public policy...................................................................................................…….20
C. Regardless of whether the Court adopts the Baseball Rule in Tulania, the Rule is inapplicable in this case because Respondent was not in the stands at the time of the injury and could not see the batter or the game from the restroom, an area where the School Corporation should reasonably expect patrons to visit. .......................................................................................................21
CONCLUSION ............................................................................................................................ 24
iii
TABLE OF AUTHORITIES
PAGE(S)
CASES
Akins v. Glens Falls City School Dist., 53 N.Y.2d 325 (1981). ................................................................................................17, 18
Ball v. City of Blackfoot, 152 Idaho 673 (2012). .......................................................................................................16
Bishop v. Colaw, 450 F. 2d 1069 (8th Cir. 1971). ....................................................................................... 11
Braxton v. Bd. of Pub. Instruction of Duval Cty., Fla., 303 F. Supp. 958 (M.D. Fla. 1969). ..................................................................................10
Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). ..................................................................................passim
Brisson v. Minn. Baseball & Athletic Ass’n, 240 N.W. 903 (Minn. 1932). .............................................................................................17
Craig v. Boren, 429 U.S. 190 (1976)…………………………………………………………….. 13, 14, 15
Crane v. Kansas City Baseball & Exhibition Co., 153 S.W. 1076 (1913). ................................................................................................17, 18
Crews v. Cloncs, 432 F. 2d 1259 (7th Cir. 1970). ........................................................................................11
Dostert v. Berthold Pub. Sch. Dist. No. 54, 391 F. Supp. 876 (D.N.D. 1975). ....................................................................................8, 9
Duncan v. Louisiana, 391 U.S. 145 (1968). ..........................................................................................................5
Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970). ...............................................................................7, 8, 10
Edward C. v. City of Albuquerque, 148 N.M. 646 (2010). .................................................................................................19, 23
Eisenstadt v. Baird, 405 U.S. 438 (1972). ...........................................................................................................7
iv
Griswold v. Connecticut, 381 U.S. 479 (1965). ...........................................................................................................7
Holsapple v. Woods, 500 F. 2d 49 (7th Cir. 1974). ............................................................................................10
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (1993). .........................................................................................................22
Jones v. Three Rivers Mgmt., 483 Pa. 75 (1978). .............................................................................................................22
Laine v. Dittman, 125 Ill. App. 2d 136 (Ill. App. Ct. 1970). .........................................................................11
Lambert v. Marushi, 322 F. Supp. 326 (S.D.W. Va. 1971). ...............................................................................15
Lawrence v. Texas, 539 U.S. 558 (2003). .................................................................................................6, 9, 11
Loving v. Virginia, 388 U.S. 1 (1967). ..............................................................................................................7
Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70 (2005). ...........................................................................................................22
Massie v. Henry, 455 F. 2d 779 (4th Cir. 1972). ....................................................................................11, 12
Miller v. Gillis, 315 F. Supp. 94 (N.D. Ill. 1969). ................................................................................15, 16
.Obergefell v. Hodges,
135 S. Ct. 2584 (2015). ..............................................................................................passim
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992). ...........................................................................................................7
Poe v. Ullman, 367 U.S. 497 (1961). .........................................................................................................10
Quinn v. Recreation Park Ass’n, 3 Cal. 2d 725 (1935). ........................................................................................................17
v
Reno v. Flores, 507 U.S. 292 (1993). ...........................................................................................................5
Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970). ..............................................................................10, 11, 12
Rodriguez v. Del Sol Shopping Cen. Associates, L.P., 326 P.3d 465 (2014). .........................................................................................................19
Roundtree v. Boise Baseball, LLC., 154 Idaho 167 (2013). .......................................................................................................19
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). ...........................................................................................................7
Snyder v. Massachusetts, 291 U.S. 97 (1934). .............................................................................................................7
Turpen v. Granieri, 133 Idaho 244 (1999). .......................................................................................................16
United States v. Virginia, 518 U.S. 515 (1996). ...................................................................................................14, 15
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)………………………………………………………………….13, 14
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). ...........................................................................................................5
Washington v. Davis, 426 U.S. 229 (1976).....................................................................................................14, 15
Washington v. Glucksberg, 521 U.S. 702 (1997).............................................................................................................5
STATE STATUTES
745 Ill. Comp. Stat. Ann. 38/10. ...................................................................................................21
Ariz. Rev. Stat. Ann. § 12-554. .....................................................................................................21
Colo. Rev. Stat. Ann. § 13-21-120 (1994). ...................................................................................21
N.J. Stat. Ann. § 2A:53A. .............................................................................................................21
vi
SECONDARY SOURCES
Deborah Pergament, It's Not Just Hair: Historical and Cultural Considerations for an Emerging Technology, 75 Chi.Kent L. Rev. 41 (1999)...................................................................7
James L. Rigelhaupt, Jr. Liability to Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp. 2003)...................17
Matthew J. Ludden, Take Me Out to the Ballgame . . . But Bring a Helmet: Reforming the “Baseball Rule” in Light of Recent Fan Injuries at Baseball Stadiums, 24 Marquette Sports L. Rev. 123 (2013). ............................................................................................................20
Mohit Khare, Foul Ball! The Need to Alter Current Liability Standards for Spectator Injuries at Sporting Events, 12 Tex. Rev. Ent. & Sports L. 91 (2010). ........................................20
Restatement (Third) of Torts:Phys. & Emot. Harm § 51 (2012). ....................................................................................17
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STATEMENT OF FACTS
Frank and Melissa Amendola live in Mandeville, Tulania. R. at 32. Their son Danny
Amendola attended Saint Tammany Parish School Corporation (“School Corporation”). Id. The
School Corporation is a public high school in Tulania and operates under the direction and
control of the School Board, which is the ultimate decision-maker for the School Corporation. R.
at 33.
The School Board approved the St. Paul’s High School Athletic Code of Conduct
(“Code”). R. at 34. The Code governed student athletes and permitted varsity head coaches to
determine the acceptable hair length for a particular sport. Id. Pursuant to the Code, Coach
William Belichick (“Coach Belichick”), established a “Haircut Policy” for the School
Corporation’s boys’ baseball team. Id. The Haircut Policy required the boys’ baseball players to
have their “hair cut above their ears, eyebrows, and collar.” Id.
Danny tried out for the School Corporation’s baseball team in tenth grade and was
informed that the length of his hair did not comply with the Haircut Policy. Id. On October 26,
2010, Mellissa spoke with Coach Belichick about the Haircut Policy. Id. Coach Belichick stated
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. On October 29, 2010, Danny made the
School Corporation’s baseball team and was allowed to practice with the team through
November 2, 2010. R. at 34-35. On November 2, 2010, the players on the boys’ baseball team
were informed that anyone who did not comply with the Haircut Policy would be removed from
the team. R. at 35. On November 4, 2010, Danny went to practice with long hair and was
subsequently removed from boys’ baseball team. Id.
1
On December 7, 2011, Melissa Amendola, Danny’s mother, was watching a baseball
game at Jesuit Stadium, which is owned and operated by the School Corporation. R. 36. Ms.
Amendola was sitting in the bleacher section of the stands down the third-base line. Id. At some
point during the game, Ms. Amendola had to use the restroom. Id. To get to the restroom, which
was located in the back of the grandstand down the third-base line, she had to “go down the steps
of the bleacher section, walk across an area on the ground level near the concession stand, and up
the stairway leading to the back of the grandstand and to the restroom.” Id. As Ms. Amendola
returned from the restroom, she was struck in the mouth by a fly foul ball. Id. From her vantage
point by the restroom, it was impossible to see the field and therefore Ms. Amendola could not
see what was happening during the game. Id. As a result of her injuries, Ms. Amendola lost a
tooth and has required extensive restorative dental procedures. Id.
2
SUMMARY OF ARGUMENT
Respondent’s Fourteenth Amendment Due Process Rights were violated when Coach
Belichick instituted the Haircut Policy for the boys’ baseball team. As the Fourteenth Circuit
Court of Appeals and the District Court noted, hair length is a fundamental right. Respondent’s
personal choice to wear his hair long is an expression that is central to his autonomy and
personal dignity, which is a concept deeply rooted in this Nation’s history and tradition and is
implicit in the concept of ordered liberty. Therefore, the School Corporation may only curtail
Respondent’s fundamental right with a compelling state justification. Coach Belichick’s
justification of promoting an image of clean cut boys and team uniformity does not rise to level
of a compelling governmental justification, such as promoting safety. In the alternative, if this
Court declines to follow the Fourteenth Circuit and the District Court in finding hair length a
fundamental right, Respondent’s personal choice of hair length is a personal aspect of autonomy
that requires Fourteenth Amendment Due Process protection.
Additionally, Respondent’s Fourteenth Amendment Equal Protection rights were
correctly safeguarded by the Fourteenth Circuit Court of Appeals. The Haircut Policy is facially
discriminatory because it only applies to boys. Alternatively, if the Haircut Policy Policy is
deemed facially neutral, the policy still had a disproportionate impact and discriminatory purpose
against Respondent. The Haircut Policy affected only the boys’ baseball team, which clearly
illustrates its disproportionate impact against Respondent. Further, the discriminatory purpose
behind the Haircut Policy is evident from the simple fact that it only applies to boys. Regardless
of whether the policy is facially discriminatory or facially neutral, the School Corporation failed
to elicit important governmental interests.
3
Finally, the Court of Appeals for the Fourteenth Circuit correctly declined to adopt the
Baseball Rule in Tulania because it is outdated, inequitable, and against public policy. The
Baseball Rule was adopted in the early 20th century based on the assumption of risk defense. The
rationale for the Baseball Rule is that spectators at baseball games are or should be aware that
balls often enter the stands and can cause injury to spectators. Thus, by attending a game,
spectators assume the risk of being injured by a batted ball. With the widespread adoption of the
comparative negligence standard, however, the Baseball Rule is now obsolete.
Rather than adopt the Baseball Rule, the Court should adopt a uniform reasonable care
standard that takes into account the comparative negligence of each party. Without this standard,
the Baseball Rule would inequitably limit a plaintiff’s ability to recover for injuries sustained as
a result of a stadium owner or operator’s negligence. These same stadium owners and operators
that would benefit from the Baseball Rule are in the best position to protect spectators from the
risks of projectiles. By adopting the Baseball Rule, the Court would disincentivize stadium
owners and operators from making their stadiums safer. Thus, adopting the Baseball Rule would
be against public policy.
Even if the Court adopts the Baseball Rule, the rule is inapplicable to the instant case
because the injury to Respondent took place outside of the stands. Courts have held that the
Baseball Rule applies only to the stands. Injuries that take place in other parts of the stadium are
subject to the heightened business-invitee rule. In this case, the School Corporation should have
known that the restroom area was dangerous and that spectators who went to the restroom could
not view the baseball field from that area. Thus, the School Corporation should be held liable for
Respondent’s injuries.
4
ARGUMENT
Respondent requests the Court affirm the decision of the Fourteenth Circuit Court of Appeals.
The standard of review regarding the issues in the instant case is de novo. See Wright v. West,
505 U.S. 277 (1992).
I. THE FOURTEENTH CIRCUIT COURT OF APPEALS PROPERLY HELD RESPONDENT’S PERSONAL CHOICE OF HAIR LENGTH IS A LIBERTY INTEREST PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE SCHOOL CORPORATION DID NOT PROVIDE APPROPRIATE JUSTIFICATION WHEN INSTITUTING THEIR HAIR CUT POLICY.
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any
person of life, liberty, or property, without due process of law.” U.S. CONST. AMEND. XIV
(emphasis supplied). The Due Process Clause protects fundamental and non-fundamental rights.
Fundamental rights include “most of the rights enumerated in the Bill of Rights.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2597 (2015) (citing Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968).
Additionally, rights not found in the Bill of Rights are fundamental if they are “deeply rooted in
this Nation’s history and tradition” or are “implicit in the concept of ordered liberty.”
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Moreover, the Due Process Clause
protects non-fundamental rights that are “personal choices central to individual dignity and
autonomy, including intimate choices that define personal identity and beliefs.” Obergefell, 135
S. Ct. at 2597. An individual does not lose the protection of the Due Process Clause in a public
school setting because a School Board’s actions can violate that individual’s liberty. See W.
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
States must provide adequate justification for restricting a Fourteenth Amendment liberty
interest. When the liberty interest is deemed a “fundamental right,” a state must satisfy strict
scrutiny analysis to limit such right. See Reno v. Flores, 507 U.S. 292, 301-02 (1993);
5
Glucksberg, 521 U.S. at 721. To satisfy strict scrutiny analysis, a state must have a compelling
government interest for the restriction, the restriction must be narrowly tailored to achieve that
interest, and the restriction must be the least restrictive means for achieving that interest. Id. For
non-fundamental rights that are protected by the Fourteenth Amendment, courts have required
the state to show one of two justifications. First, courts have required the state to meet a
“substantial burden of justification.” Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969).
Second, courts have required the limitation of a non-fundamental right be “rationally related to a
legitimate state interest.” Lawrence v. Texas, 539 U.S. 558, 593 (2003) (Scalia, J., dissenting).
This Court should affirm the Fourteenth Circuit Court of Appeals because the
Respondent’s Due Process rights have been violated. First, Respondent’s hair length is a liberty
interest protected by the Fourteenth Amendment, either as a fundamental right or a non-
fundamental right. Second, the School Corporation failed to provide adequate justification for
limiting Respondent’s Fourteenth Amendment liberty interest.
A. Respondent’s personal choice to have long hair is a fundamental right protected by the Fourteenth Amendment’s Due Process Clause and the School Corporation failed to provide a compelling justification to restrict Respondent’s fundamental right through its Haircut Policy.
Substantive Due Process protects fundamental rights and liberties. Glucksberg, 521 U.S.
at 720. Courts have recognized fundamental rights or liberties in three different contexts. First,
fundamental rights include “most of the rights enumerated in the Bill of Rights,” Obergefell, 135
S. Ct. at 2597. Second, fundamental rights include those rights “deeply rooted in this Nation's
history and tradition.” Id. at 720-21. Third, fundamental rights include those rights or liberties
that are “implicit in the concept of ordered liberty.” Glucksberg, 521 U.S. at 721.
When a state infringes on a fundamental right or liberty, the state action must pass a strict
scrutiny analysis. See id. Strict Scrutiny requires the state’s justification be a compelling
6
government interest, narrowly tailored to achieve that interest, and the least restrictive means for
achieving that interest. Id.
1. Hair length is a fundamental right because it is a personal expression deeply rooted in the history and tradition of the United States and implicit in the ordered liberty of the United States.
This Court has long recognized bodily integrity and autonomy as a fundamental right
protected by the Due Process Clause of the Fourteenth Amendment because it is “deeply rooted
in this Nation's history and tradition.” Glucksberg, 521 U.S. at 720-21; see e.g. Loving v.
Virginia, 388 U.S. 1 (1967) (right to marry); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942) (right to have children); Griswold v. Connecticut, 381 U.S. 479 (1965) (right of
marital privacy); Eisenstadt v. Baird, 405 U.S. 438 (1972) (right to use contraception);
Obergefell, 135 S. Ct. 2584 (Right to same-sex marriage). In Snyder v. Massachusetts, 291 U.S.
97, 105 (1934), this Court reasoned that bodily integrity and autonomy is a fundamental right
because it is a “right so rooted in the traditions and conscience of our people as to be ranked as
fundamental.” Moreover, a right that is “implicit in the concept of ordered liberty” is deemed
fundamental. Glucksberg, 521 U.S. at 721 (1997). Liberty is the “right to define one's own
concept of existence.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 851
(1992). For example, “matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment.” Id.
In the instant case, Respondent’s choice to wear his hair long is a personal choice that is
central to his autonomy and personal dignity. Id. Hair is a symbol of the self, allows self-
expression, establishes group identity, and can symbolize social norms. See Deborah Pergament,
It's Not Just Hair: Historical and Cultural Considerations for an Emerging Technology, 75
7
Chi.Kent L. Rev. 41, 44 (1999). In fact, hair is the most visible example of personality. See
Dunham v. Pulsifer, 312 F. Supp. 411, 419 (D. Vt. 1970). In Dunham, the Court explained that
the length of one’s hair and its style is “more fundamental to personal appearance than the type
of clothing” because garments can be changed at will but the hair length remains constant for
substantial periods of time. Id. Therefore, Respondent’s hair length is a personal choice that is
central to his autonomy and personal dignity because it is the most visible symbol of himself, his
self-expression, and his personality. See id.; Casey, 505 U.S. at 851. This Court should affirm the
Fourteenth Circuit Court of Appeals and find that Respondent’s personal choice to wear his hair
long is a fundamental right protected by the Fourteenth Amendment’s Due Process Clause.
2. The School Corporation did not provide a compelling justification when instituting the Haircut Policy and therefore did not satisfy strict scrutiny analysis.
The School Corporation failed to provide a compelling justification when it limited
Respondent’s fundamental right to wear his hair long. When a right is deemed fundamental, the
State’s justification for infringing on such right must be a compelling government interest,
narrowly tailored to achieve that interest, and it must be the least restrictive means for achieving
that interest. Glucksberg, 521 U.S. at 721.
In Dostert v. Berthold Pub. Sch. Dist. No. 54, 391 F. Supp. 876, 878 (D.N.D. 1975), a
public school policy prohibited male students from taking part in the extracurricular
organizations “unless a boy's hairline falls above the ears, above the eyebrows and off the shirt
collar.” The school’s justification was that the policy made the team more dedicated, unified, and
enhanced teamwork. Id. at 882. The court held that the school failed to show that the “interest in
obtaining this extra degree of success is such a compelling part of the public educational mission
as to outweigh [the student’s] constitutionally protected interest in determining his own hair
length.” Id. (alterations in original).
8
The factual circumstances in Dostert are nearly identical to the instant case. See Dostert,
391 F. Supp. at 878; R. at 34. The Haircut Policy requires players on the boys’ baseball team to
have their hair cut above their ears, eyebrows, and collar. R. at 34. Coach Belichick’s
justification for implementing the Haircut Policy was to promote an image of “clean cut boys”
and to establish team uniformity. R. at 34. Thus, like the school in Dostert, the School
Corporation’s justification did not establish a compelling government interest. See Dostert, 391
F. Supp. at 882. This Court should affirm the Fourteenth Circuit Court of Appeals because the
School Corporation did not provide a compelling justification for curtailing Respondent’s
fundamental rights.
B. Alternatively, Respondent’s choice to wear his hair long is a non-fundamental right protected by the Fourteenth Amendment’s Due Process Clause because hair length is a personal choice central to individual dignity and autonomy and the School Corporation did not provide adequate justification for the Haircut Policy.
The Fourteenth Amendment protects rights or liberties that are non-fundamental because
the Due Process Clause “extend[s] to certain personal choices central to individual dignity and
autonomy.” Obergefell, 135 S. Ct. at 2597. To restrict a non-fundamental right, the State must
show a “substantial burden of justification,” Breen, 419 F.2d at 1036, or that the restriction is
“rationally related to a legitimate state interest.” Lawrence, 539 U.S. at 593.
Respondent’s personal choice to wear his hair long is a form of expression that is central
to his autonomy, and therefore is a liberty interest protected under the Fourteenth Amendment.
See Obergefell, 135 S. Ct. at 2597; R. at 34. The School Corporation has failed to provide
appropriate justification for its Haircut Policy. See R. at 34. The moral and ambiguous
justification of promoting an image of “clean cut boys” and establishing team uniformity does
not meet the School Corporation’s substantial burden, or even rationally relate to a legitimate
interest of a high school baseball team. See Breen, 419 F.2d at 1036; Lawrence, 539 U.S. at 593;
9
R. at 34. Thus, this Court should affirm the Fourteenth Circuit Court of Appeals because the
School Corporation did not provide an adequate justification for infringing on Respondent’s Due
Process liberty interest.
1. Hair length is a non-fundamental right protected by the Fourteenth Amendment’s Due Process Clause because it is central to individual dignity and autonomy.
Respondent’s personal choice to wear long hair is an expression of autonomy, which is a
non-fundamental liberty interest protected by the Fourteenth Amendment. Identifying and
protecting Fourteenth Amendment liberties “has not been reduced to any formula,” Obergefell,
135 S. Ct. at 2598 (citing Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)),
however, this Court has established that the Due Process Clause protects “certain personal
choices central to individual dignity and autonomy.” Obergefell, 135 S. Ct. at 2597.
In the instant case, the right to wear one's hair at any length is an ingredient of personal
freedom protected by the Due Process Clause because it is central to an individual’s dignity and
autonomy. See Breen, 419 F. 2d at 1035; Holsapple v. Woods, 500 F. 2d 49, 51-52 (7th Cir.
1974). Hair is a symbol of the self and therefore is a personal aspect of Respondent’s life. See
Richards v. Thurston, 424 F.2d 1281, 1284-85 (1st Cir. 1970) (holding that hair length is not
fundamental but liberty is an incomplete protection if it leaves the state free to interfere with
those personal aspects of our lives). Additionally, hair length and style establishes personality
traits and has been linked with “political, philosophical and ideological overtones.” Dunham, 312
F. Supp. at 419; see also Braxton v. Bd. of Pub. Instruction of Duval Cty., Fla., 303 F. Supp. 958,
959 (M.D. Fla. 1969) (holding that a black teacher wearing a goatee was an appropriate
expression of heritage, culture and racial pride that was protected by the Due Process Clause of
Fourteenth Amendment). As a result, the Court of Appeals for the First, Fourth, Seventh, and
Eighth Circuit have held that hair length is a non-fundamental right protected by the Due Process
10
Clause. See Richards, 424 F.2d at 1284-85; Massie v. Henry, 455 F. 2d 779, 783 (4th Cir. 1972);
Crews v. Cloncs, 432 F. 2d 1259, 1263 (7th Cir. 1970); Bishop v. Colaw, 450 F. 2d 1069, 1075
(8th Cir. 1971). Thus, Respondent’s personal choice to wear his hair long is a non-fundamental
right protected by the Due Process Clause because it is a personal choice that is central to
Respondent’s autonomy. See Obergefell, 135 S. Ct. at 2597.
2. The School Corporation failed to provide appropriate justification for the Haircut Policy.
When a non-fundamental right or liberty interest is found, the State must provide
adequate justification for infringing upon such liberty interest. The Fourteenth Circuit Court of
Appeals, along with the Court of Appeals for the Fourth, Seventh, and Eighth Circuit, have
required a substantial burden of justification, also known as establishing the necessity of
infringing upon a liberty interest. Crews, 432 F. 2d at 1264; Bishop, 450 F.2d at 1075; Massie,
455 F.2d at 783; R. at 5. Alternatively, the First Circuit Court of Appeals applied a test similar to
rational basis, as explained in Lawrence. See Lawrence, 539 U.S. at 593; Richards, 424 F. 2d at
1286 (holding that once the personal liberty is shown, the countervailing interest must either be
self-evident or be affirmatively shown).
In the instant case, the School Corporation did not meet its substantial burden of
justification. Coach Belichick’s justification for implementing the Haircut Policy was to promote
an image of “clean cut boys” and to establish team uniformity, R. at 34. In Laine v. Dittman, 125
Ill. App. 2d 136, 138 (Ill. App. Ct. 1970), a public school had a similar haircut policy that
required hair to be neat and well-groomed. The court in Laine required a substantial burden of
justification and held the justification can only can only be met when there is a showing that the
exercise of a right “creates an actual disturbance or disruption to the orderly process of school
functions.” Id. at 142. Here, the Record is absent of any disturbance or disruption to the orderly
11
process of school functions. Moreover, promoting team uniformity does not justify curtailing a
non-fundamental right because “there is little merit in conformity for the sake of conformity and
[] one may exercise a personal right in the manner that he chooses so long as he does not run
afoul of considerations of safety, cleanliness and decency.” Massie, 455 F.2d at 783; Breen, 419
F.2d at 1038 (7th Cir. 1969) (“Discipline for the sake of discipline and uniformity, is indeed not
compatible with the melting pot formula which brought this country to greatness.”). The Haircut
Policy does not mention safety, cleanliness, or decency. R. at 34 (requiring boys’ baseball
players to have “their hair cut above their ears, eyebrows, and collar.”). Although Coach
Belichick did mention promoting an image of “clean cut boys,” he did not mention that the goal
of having “clean cut” boys was related to cleanliness.
Moreover, the School Corporation does not satisfy the test in Richards because Coach
Belichick fails to provide interests justifying the Haircut Policy’s intrusion on Respondent’s non-
fundamental right under the Due Process Clause. See Richards, 424 F. 2d at 1285; R. at 34. The
First Circuit Court of Appeals explained that the countervailing interest must either be self-
evident or be affirmatively shown. Id. In making this analysis, the court “take[s] into account the
nature of the liberty asserted, the context in which it is asserted, and the extent to which the
intrusion is confined to the legitimate public interest to be served.” Id. The court held, “[w]e see
no inherent reason why decency, decorum, or good conduct requires a boy to wear his hair short.
Certainly eccentric hair styling is no longer a reliable signal of perverse behavior.” Id. at 1286.
Accordingly, this Court should follow the reasoning in Richards and hold that the School
Corporation failed to provide a curtailing interest that was neither self-evident nor affirmatively
shown. Id. at 1285-86.
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II. THE FOURTEENTH CIRCUIT COURT OF APPEALS CORRECTLY HELD THE HAIRCUT POLICY VIOLATED RESPONDENT’S EQUAL PROTECTION RIGHTS, AS IT ONLY APPLIED TO MALES ON THE BASEBALL TEAM, AND PROMOTING AN IMAGE OF “CLEAN CUT” BOYS AND TEAM UNIFORMITY ARE NOT IMPORTANT GOVERNMENTAL OBJECTIVES.
The United States Constitution makes clear that no State shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV. Here, the School
Board is a State actor under the Fourteenth Amendment and therefore the Haircut Policy is
subject to the Equal Protection Clause. See Barnette, 319 U.S. at 637. A policy is either
classified as facially discriminatory or facially neutral. Policies that facially discriminate against
a specific gender receive intermediate scrutiny. Craig v. Boren, 429 U.S. 190, 197 (1976). For a
facially neutral policy to receive intermediate scrutiny, there must be a disproportionate impact
and a discriminatory intent or purpose. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 265 (1977). Intermediate scrutiny requires classifications by gender to “serve
important governmental objectives and must be substantially related to achievement of those
objectives.” Craig, 429 U.S. at 197 (1976).
In the instant case, the Haircut Policy only applied to the boy’s baseball team. R. at 34.
Therefore, the policy is facially discriminatory. R. at 34. However, if this Court finds the policy
to be facially neutral, the policy is still discriminatory. There is a disproportionate impact
because the policy applies to the entire boys’ baseball team and does not apply to any girls. Vill.
of Arlington Heights, 429 U.S. at 265. The Haircut Policy clearly has discriminatory intent or
purpose because it only reference boys on the baseball team. Id. Furthermore, the School
Corporation fails intermediate scrutiny because promoting an image of “clean cut boys” and
establishing team uniformity are not important governmental objectives. R. at 9. Therefore, this
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Court should affirm the Fourteenth Circuit Court of Appeals because the School Corporation
violated Respondent’s Equal Protection rights.
A. The Haircut Policy is facially discriminatory because it only references the boys’ baseball team.
As the Fourteenth Circuit Court of Appeals noted, the Haircut Policy is facially
discriminatory because it draws an explicit gender line. R. at 18. Only boys on the baseball team
have to wear “their hair cut above their ears, eyebrows, and collar.” See United States v.
Virginia, 518 U.S. 515, 523 (1996) (finding an exclusively male admission policy facially
discriminatory); R. at 34. Moreover, the District Court’s holding that sex-based discrimination
did not exist because the Haircut Policy “did not apply to male athletes who played sports other
than baseball” is flawed. R. at 46. In Craig, a statute prohibited the sale of 3.2% beer to males
under the age of 21 and females under the age of 18. Craig, 429 U.S. at 192. This Court held the
statute constituted gender-based discrimination against males between 18 and 20, although the
statute did not burden males 21 and above. Id. Thus, although males on other sports teams can
wear their hair long, the Haircut Policy still constitutes gender-based discrimination under this
Court’s precedent. See id.; R. at 46.
B. In the alternative, the Haircut policy had a disproportionate impact and a discriminatory intent or purpose.
If this Court deems the Haircut Policy facially neutral, it still violates Respondent’s Equal
Protection rights because it resulted in a disproportionate impact and had a discriminatory intent
or purpose. Vill. of Arlington Heights, 429 U.S. at 265 (requiring proof of disproportionate
impact and a discriminatory intent or purpose). A disproportionate impact from the Haircut
Policy is clear from the simple fact that the Haircut Policy affected the entire boys’ baseball team
without affecting any girls whatsoever. See Washington v. Davis, 426 U.S. 229, 242 (1976)
14
(finding that a law that is neutral on its face had a disproportionate impact when the law affected
a greater proportion of one race than another); R. at 34 (“The Haircut Policy applies to the High
School boys' baseball team, and requires that baseball players have their hair cut above their ears,
eyebrows, and collar.”). Additionally, discriminatory purpose is also evident from the language
of the Haircut Policy, which singles out and applies only to the boys on the baseball team. See
Davis, 426 U.S. at 242 (“[I]nvidious discriminatory purpose may often be inferred from the
totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on
one race than another.”); R. at 34 (“The Haircut Policy applies to the High School boys' baseball
team.”). Therefore, even if facially neutral, the Haircut Policy violated Respondent’s Equal
Protection rights because it had a disproportionate impact and a discriminatory purpose against
boys on the baseball team.
C. Promoting an image of “clean cut boys” and team uniformity are not important governmental objectives.
When classifying by gender, the burden of justification rests entirely on the state and the
justification must be “exceedingly persuasive.” Virginia, 518 U.S. at 533. Gender is a quasi-
suspect class. Craig, 429 U.S. at 197. Therefore, “classifications by gender must serve important
governmental objectives and must be substantially related to achievement of those objectives.”
Id.
In Miller v. Gillis, 315 F. Supp. 94, 97 (N.D. Ill. 1969), a school policy required students’
hair to “appear clean and neat, tapered up the back of the neck, and not protruding over the ears
or the eyebrows.” The court stated that the school’s objective interests were “health, education
and general welfare.” Id. at 100. In its holding, the court explained that the school failed to show
long hair was actually disruptive, and therefore the hair policy violated the student’s Equal
Protection rights. See id.; see also Lambert v. Marushi, 322 F. Supp. 326, 330 (S.D.W. Va. 1971)
15
(requiring the School to show that long hair was an actual disruption, and that fear of disruption
alone was not enough to require short hair).
In the instant case, the School Corporation’s Haircut Policy is nearly identical to the
policy at issue in Miller. See 315 F. Supp. at 97. Like the school in Miller, the School
Corporation in this case failed to argue that long hair was actually disruptive or that the Haircut
Policy served a health, education, or general welfare interest. Id. at 100. Instead, the School
Corporation’s justification for the Haircut Policy was simply to promote an image of “clean cut
boys” and team uniformity, which are not important governmental interests. See id.; R. at 9. In
fact, team uniformity actually cuts against the School Corporation’s educational interest in
helping student’s form their identity. See Miller, 315 F. Supp. at 101 (noting that schools do not
automatically obtain good student behavior by inaugurating uniformity of dress and that
conformity of this type is antithetical to education's wide aims). Thus, this Court should affirm
the Fourteenth Circuit Court of Appeals because the Haircut Policy constitutes gender-based
discrimination and does not serve an important governmental interest.
III. THIS COURT SHOULD AFFIRM THE DECISION OF THE FOURTEENTH CIRCUIT BECAUSE THE BASEBALL RULE IS OUTDATED, INEQUITABLE, AND AGAINST PUBLIC POLICY.
Plaintiffs in a typical negligence case must establish four elements to prevail: (1) a duty
of care owed to the plaintiff, (2) a breach of that duty, (3) a causal connection between the breach
and the resulting injury, and (4) actual loss or damage. Turpen v. Granieri, 133 Idaho 244, 985
P.2d 669, 672 (1999). The duty of care owed by landowners depends on the status of the
individual on the land. Ball v. City of Blackfoot, 152 Idaho 673, 677 (2012). For example,
landowners generally do not owe trespassers any duty of care, except for the duty to refrain from
intentionally and willfully causing harm. Business owners, on the other hand, generally have a
16
heightened duty of care to its invitees. Under this heightened standard, landowners have a duty
“to use reasonable care to investigate and discover dangerous conditions and to use reasonable
care to attend to known or reasonably knowable conditions on the property.” Restatement (Third)
of Torts: Phys. & Emot. Harm § 51 (2012). Thus, a baseball stadium owner or operator has a
heightened duty to protect spectators from known and or reasonably knowable dangers that
might be discovered with reasonable care, such as foul balls that enter the stands during a
baseball game.
Despite the fact that a stadium owner or operator generally owes spectators a heightened
duty of care under the business invitee rule, a majority of courts have limited this duty by
adopting what is known as the Baseball Rule. See generally James L. Rigelhaupt, Jr. Liability to
Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game,
91 A.L.R.3d 24 (1979 & Supp. 2003); Quinn v. Recreation Park Ass’n, 3 Cal. 2d 725 (1935).
Although the Baseball Rule varies by jurisdiction, the majority of courts adopting the Baseball
Rule have held that in order to obtain the liability protections of the rule, “the owner must screen
the most dangerous section of the field–the area behind home plate–and the screening that is
provided must be sufficient for those spectators who may be reasonably anticipated to desire
protected seats on an ordinary occasion.” Akins v. Glens Falls City School Dist., 53 N.Y.2d 325,
330 (1981); see also Brisson v. Minn. Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn.
1932). Thus, a plaintiff who suffers an injury as a result of a foul ball or other projectile is barred
from recovering damages if the owner or operator of the stadium had screened protection for the
most dangerous section of the stadium and provided sufficient seating for those spectators that
may reasonably wish to sit there.
17
A. Widespread adoption of the comparative negligence standard has made the Baseball Rule obsolete.
The Baseball Rule originated with the Kansas City Court of Appeals in Crane v. Kansas
City Baseball & Exhibition Co., 153 S.W. 1076 (1913). In Crane, the Court determined that
baseball stadium owners and operators owed spectators a more limited duty than other business
and land owners:
In view of the facts that the general public is invited to attend these games, that hard balls are thrown and batted with great force and swiftness, and that such balls often go in the direction of the spectators, we think the duty of defendants towards their patrons included that of providing seats protected by screening from wildly thrown or foul balls, for the use of patrons who desired such protection.
Id. at 1077. In addition to the knowledge of spectators regarding the risks of baseball, the
Baseball Rule also stems from the fact that “many spectators prefer to sit where their view of the
game is unobstructed by fences or protective netting and the proprietor of a ball park has a
legitimate interest in catering to those desires.” Akins, 53 N.Y.2d at 330. Thus, the thinking goes,
stadium owners and operators should not be liable for injuries as a result of a fan’s own desire to
sit close to the action. Additionally, courts applying the Baseball Rule have noted that fans often
put themselves in danger by chasing after foul balls in the hopes of bringing home a souvenir.
The Baseball Rule, which has its origins in the primary assumption of risk defense, is
outdated. While the rule made sense in the early 20th Century, when the assumption of risk
doctrine acted as a complete bar for recovery, the widespread adoption of the comparative
negligence standard has made the Baseball Rule obsolete. The comparative negligence standard
allows factfinders the opportunity to apportion the negligence that is attributable to each party.
Thus, a factfinder in this case could determine that Respondent was 40% negligent for her
injuries and School Corporation was 60% negligent. This would allow Respondent to recover
60% of the damages that is attributable to School Corporation. The comparative negligence
18
standard fairly assigns the fault to each party. Rather than completely bar recovery for injuries
that were attributable to a defendant’s negligence, comparative negligence allows factfinders to
assess each parties’ relative fault base damages based on each parties’ relative fault.
Courts are steadily moving away from the outdated Baseball Rule. In 2010, New
Mexico’s Supreme Court rejected the Baseball Rule “because of its extreme and unyielding
results.” Edward C. v. City of Albuquerque, 148 N.M. 646, 657 (2010) (overruled on different
grounds by Rodriguez v. Del Sol Shopping Cen. Associates, L.P., 326 P.3d 465 (2014)). In
Edward C., the Court rejected the Baseball Rule in favor of a modified duty of care for stadium
owners and operators, holding that owners and operators have a duty that is symmetrical duty a
spectator’s duty. Id. at 658. Under this modified duty, stadium owners and operators have a duty
not to increase the inherent risk of being hit by a ball that leaves the field of play while spectators
have a duty to exercise reasonable care to protect themselves from the inherent risks of baseball.
Id.
The Idaho Supreme Court also declined to adopt the Baseball Rule in 2013. Roundtree v.
Boise Baseball, LLC., 154 Idaho 167 (2013). In Roundtree, a man lost his eye after being hit by a
foul ball. Id. at 169. At the time of the injury, the man was talking to another patron in the
Executive Club of the stadium and not paying attention to the game. Id. Despite the fact that the
stadium had extensive netting to protect spectators, the Idaho Supreme Court declined to adopt
the Baseball Rule. Id. at 173. The Court reasoned that since there was no history of similar foul
ball injuries and no information on how various stadiums might prevent these injuries, the Court
could not draw a line as to where a stadium owner’s duty ends. Id.
As indicated by the cases above, the Baseball Rule is outdated and obsolete. Rather than
adopt this misguided rule, this Court should apply a uniform reasonable care standard for all
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landowners that takes into account the comparative fault of each party. The reasonable care
standard would “hold[] stadium owners liable, thereby inducing them to take safety measures
protecting their spectators and modernizing their venues to accommodate such precautions.”
Mohit Khare, Foul Ball! The Need to Alter Current Liability Standards for Spectator Injuries at
Sporting Events, 12 TEX. REV. ENT. & SPORTS L. 91, 101 (2010); see also Matthew J. Ludden,
Take Me Out to the Ballgame . . . But Bring a Helmet: Reforming the “Baseball Rule” in Light
of Recent Fan Injuries at Baseball Stadiums, 24 MARQUETTE SPORTS L. REV. 123 (2013). The
reasonable care standard combined with comparative fault allows courts to account for the
totality of the circumstances and fairly determine the liability of each party for an injury caused
by a batted ball while also encouraging owners and operators to maker their stadiums safer.
Moreover, this standard has the added benefit of giving landowners, including stadium owners
and operators, the ability to know exactly the standard of care owed to business invitees.
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B. The Baseball Rule unfairly limits Respondent’s recovery while protecting stadium owners and operators who are in the best position to protect spectators from the risks of projectiles and therefore is against public policy.
As the Fourteenth Circuit noted below, public policy does not support adopting the
Baseball Rule. R. at 28. Baseball stadium owners and operators are in the best position to protect
spectators from the risks of the game. Each stadium often has unique features. These unique
features may make some areas of one stadium riskier than others. Stadium owners and operators
are able to study the unique features of their stadium and provide the necessary protection to
prevent reasonably foreseeable injuries. Fans on the other hand, may be unfamiliar with certain
stadiums. They might think that the seat they have chosen is protected by netting, when in fact it
is not. Stadium owners and operators, on the other hand, have the most knowledge regarding
their specific stadiums and are in the best position to protect their invitees from injury.
Alternatively, even if the Court finds that the Baseball Rule is not against public policy,
the decision of whether or not Tulania should adopt the Baseball Rule is a decision that is best
left to the legislature. In response to a number of spectator injury cases, a number of states have
chosen to adopt specific legislation addressing what duty a baseball stadium owner or operator
owes to spectators. See, e.g., Ariz. Rev. Stat. Ann. § 12-554; Colo. Rev. Stat. Ann. § 13-21-120
(1994); N.J. Stat. Ann. § 2A:53A-43 to 2A:53A-48; 745 Ill. Comp. Stat. Ann. 38/10. As the
Fourteenth Circuit correctly noted, “[t]hese kinds of questions are appropriate for the Legislature
because it has the resources for the research, study and proper formulation of broad public
policy.” R. 29. In this case, the Court should not sit in place of the legislature. If the legislature
disagrees with the Court’s decision not to adopt the Baseball Rule, then the legislature may
decide to create some form of the rule if it chooses to do so.
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C. Regardless of whether the Court adopts the Baseball Rule in Tulania, the Rule is inapplicable in this case because Respondent was not in the stands at the time of the injury and could not see the batter or the game from the restroom, an area where the School Corporation should reasonably expect patrons to visit.
In the present case, Respondent was watching a baseball game at Jesuit Stadium, which is
owned and operated by the School Corporation. R. 36. At some point during the game,
Respondent had to use the restroom. Id. To get to the restroom, located in the back of the
grandstand down the third-base line, Respondent had to “go down the steps of the bleacher
section, walk across an area on the ground level near the concession stand, and up the stairway
leading to the back of the grandstand and to the restroom.” Id. As Respondent returned from the
restroom, she was struck in the mouth by a fly foul ball. Id. From her vantage point by the
restroom, it was impossible to see the field and therefore Respondent could not see what was
happening during the game. Id. She was not distracted from the game, she simply could not see it
because of the way the stadium was situated. See Foul Ball! The Need to Alter Current Liability
Standards for Spectator Injuries at Sporting Events, 12 TEX. REV. ENT. & SPORTS L. 91, 101
(2010).
The Supreme Court of New Jersey has noted that “[t]he validity of the baseball rule
diminishes in the context of injuries that occur in stadium areas other than the stands.”
Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 185 N.J. 70, 84, 881 A.2d 700, 708
(2005). The proper standard of care for areas outside of the stands “is the business invitee rule,
which provides that a landowner ‘owe[s] a duty of reasonable care to guard against any
dangerous conditions on his or her property that the owner either knows about or should have
discovered.’” Id. at 85, 709 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993));
see also Jones v. Three Rivers Mgmt., 483 Pa. 75, 86-87 (1978) (holding that the no-duty rule did
not apply to an interior walkway of Three Rivers Stadium since the walkway was not “an
22
inherent feature of the spectator sport of baseball”). In this case, the School Corporation should
have known that the restrooms left spectators unable to see the field and thus vulnerable to
injury. While Petitioner argues that the risks inherent in baseball should be known, that logic
would only apply to the stands, where Respondent was able to see what was happening on the
field and react as necessary. It would be incomprehensible to charge defenseless spectators with
the assumption of an unknown risk in an area that was not an inherent feature of watching
baseball.
The School Corporation had a number of options if it wanted to retain the benefits of the
Baseball Rule in the restroom area. First, it could have constructed the area in such a way that
spectators were able to see the field. That way, if a ball or other projectile entered the area,
spectators would have the ability to protect themselves. Second, the School Corporation could
have installed protective netting in areas where it knew or reasonably should have known that
spectators were unable to view the field. It was reasonably foreseeable that spectators would
have to use the restroom and that these spectators would still be subject to the dangers of the
game. By constructing the restrooms in such a way that spectators could not view the game, the
School Corporation increased the inherent risk of being hit by a ball that leaves the field of play.
See Edward C., 148 N.M. at 658.
Although the School Corporation warned fans regarding the dangers incident to baseball,
warnings alone cannot absolve the School Corporation of liability for increasing the inherent risk
of the game by constructing the restrooms in an area where spectators could not see the game
while simultaneously refusing to provide screening protection for said restrooms. From time to
time during a baseball game –which by design have no time limit– Mother Nature calls. It was
completely foreseeable that spectators would need to use the restroom during a game. Even if the
23
School Corporation had a limited duty to spectators who knowingly sat in unprotected areas of
the stands, that limited duty did not extend to the restroom area. The record does not indicate that
Respondent had the option of going to a restroom protected by screening. The option to be
protected by screening is the essence of the Baseball Rule. When a person has no choice but to
use a dangerous restroom to fulfill a necessary bodily function, they cannot be said to have
assumed the risk of being hit by a foul ball.
CONCLUSION
For the aforementioned reasons, Respondent requests this Court to affirm the Fourteenth
Circuit Court of Appeals because Respondent’s Fourteenth Amendment Due Process and Equal
Protection rights were violated by the Haircut Policy, and the Baseball Rule is outdated and
inequitable.
24