The Court of Appeals for the Seventh Circuit recently ruled that a high school coach’s policy of requiring the boys’ basketball team to wear very short hair constituted sex discrimination in violation of the Constitution’s Equal Protection Clause as well as Title IX. The plaintiffs, the Haydens, are parents of a high school junior in Greensburg, Indiana, who wants to but cannot join the basketball team due to the length of his hair. According to the coach, basketball players must wear their hair above the ears, in order to promote team unity and to “project a clean-cut image.” The boys’ track coach imposes a similar requirement, though other boys’ teams do not. The parents sued, arguing that the hair cut policy impairs a liberty interest protected by the Constitution’s due process clause, and that it constitutes sex discrimination because the school does not impose the same requirement on girls’ teams.
A lower court ruled in favor of the school, but on appeal, the determined that the policy constituted impermissible sex discrimination. In doing so, the court’s analysis borrowed from Title VII cases that have considered dress code and appearance requirements in the context of employment. There, courts have upheld dress codes that treat employees differently on the basis of sex, but only when they impose equivalent burdens on both male and female employees. In one well-known case, for example, a court upheld a casino’s requirement that female bartenders wear makeup, because it considered that requirement in the context of a larger, comprehensive dress code policy that imposed different burdens on male employees that the court saw as comparable.
In similar fashion, the Seventh Circuit reasoned that without evidence that the school imposed comparable burdens on any of the female teams — a burden that was the school’s to produce — the coach’s haircut policy discriminated on the basis of sex. Not because the school didn’t impose the same requirement on female athletes, but because the record did not reflect evidence that the school imposed any requirements on them that would be comparably burdensome. As part of this analysis, it was relevant to the court that the coach’s policy was not simply a ban on “extreme” hair styles of the “Age of Aquarius, Tiny Tim” variety but instead required players to keep their above the ears. Because of the policy’s departure from mainstream style norms, the court saw the policy as burdensome on the male students affected by it.
A dissenting judge disagreed that the haircut policy constituted sex discrimination, emphasizing that different treatment is not necessarily discrimination. For example, he pointed out that a girls’ softball team might wear shorts while a boys’ baseball team wears pants. All student-athletes at this high school are bound by a general policy that prohibits players from wearing their hair in a way that could pose problems for “health and sanitation,” mohawk styles, or any styles that include “insignias, numbers, initials, or extremes in differing lengths.” In addition, the athletic department’s policy delegates to each coach the authority to determine “the acceptable length of hair for a particular sport.” In this context, the dissenting judge viewed the boys’ basketball coach’s policy as just one variation on a comparable set of burdens that applies to male and female athletes alike. In the end, though, this reasoning did not prevail. The lower court is under orders to apply a remedy consistent with the appellate court’s opinion. Barring the unlikely intervention of the Supreme Court, the remedy that should issue is an injunction against the hair cut policy.
This isn’t the first time Title IX has been used to challenge requirements related to a student’s appearance — prom attire cases come to mind as examples of that sort. But in terms of the statute’s application to an athletic team’s uniform hair style requirement, I believe this case is unique. It will be interesting to see if this case paves the way for similar challenges to come forward in the future.