by community norms; and (2) part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens—if not identical ones—on males and females alike. Applying that standard, the court held that the hair length rule discriminated against male students on the basis of gender based on the second prong of the test. Although the parties stipulated that female players were subjected to some grooming standards, there were no facts regarding the content of those standards, and so the court could not “assess whether the standards [applied to girls] are comparable, [to those applied to boys], notwithstanding the disparity in the hair-length component of the grooming standards.”
Application by School Leaders
The Seventh Circuit’s decision, which is one of the first of its kind and one of the first decisions addressing hair lengths in schools in decades, has garnered media attention and warrants a close look at hair length policies in male athletic programs. But as the summary above shows, there are important limitations necessary to understanding how the case should be applied by school leaders. Specifically, the court did not hold that boys’-only hair length policies are not acceptable in K-12 public schools. Rather, the court suggested that such hair-length policies are acceptable if they are based on relevant community norms and are part of a larger grooming program that includes limitations that are comparably limiting to male and female students.
Notably, it cannot simply be assumed that hair-length policies for boys are based on relevant community norms. The Hayden court questioned whether male hair length standards (which came about decades ago in the 1960s and 1970s) are still relevant community standards today. As the court pointed out, some members of the court “might [even] find themselves in trouble” under such a rule, which prohibited hair worn over the ears, collar, or eyebrows. But as the dissent pointed out, the courts have adopted an extremely deferential view of such questions in the employment context, finding that appearance regulations are defensible if they have some justification in accepted social norms. So school districts should be able to successfully argue that, at least in their communities, hair-length rules for boys are based on relevant community norms.
Care should also be taken to establish that there is an overarching grooming policy that is equally harsh on boys and girls alike. The court provided some examples of questions it might ask to determine if a boys’ hair length policy is part of a larger, consistently-applied grooming program that includes limitations on both male and female students. For example, a court might ask:
- Are female students prohibited from wearing jewelry?
- Are female students required to wear their hair in any particular way with the goal of having a neat, clean-cut appearance?
- Are there limits, other than those on “extreme” hairdos like Mohawks, on how female students can style their hair and are any of those limits based on community norms (e.g., a prohibition on “buzz cuts”)?
- Are the respective grooming standards enforced evenhandedly between girls and boys?
Although these are just examples, they provide some insight into the types of limitations on female programs that a court might consider when determining if a grooming policy limits boys and girls equally.
Based on this case, school leaders should take a close look at any gender specific grooming policies for their sports teams to ensure that they are based on relevant community standards and that any limitations that apply to only one gender are based on community norms and are part of a comprehensive grooming policy that, as a whole, is equally burdensome on male and female players. If a rule complies with these standards, it will be in the best position to withstand scrutiny even after the Hayden decision.
Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or nation