The Volokh Conspiracy
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On its face, the policy clearly does discriminate based on sex, and thus seems like a facial violation of Title IX and a presumptive violation of the Equal Protection Clause (since the kindergarten is a public charter school). But courts in employment discrimination cases have long upheld certain kinds of sex-differential grooming policies, such as hair length policies, so long as both men and women are subjected to standards that are seen as socially accepted for their sex. Here is an excerpt from Hayden ex rel. A.H. v. Greensburg Community School Corp. (7th Cir. 2014), the precedent on which the plaintiff chiefly relies, which struck down a male-only hair-length limit for a high school's baseball and basketball players:
Whether and when the adoption of differential grooming standards for males and females amounts to sex discrimination is the subject of a discrete subset of judicial and scholarly analysis. This line of authority—much of it pre-dating the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S.Ct. 1775, 1790-91, 104 L.Ed.2d 268 (1989) (plurality) (employer may not demand that employee's appearance and deportment match sex stereotype associated with her gender)—is most developed in the employment context, but it has a parallel in the school context as well. See, e.g., Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979) (holding that workplace dress code which required women but not men to wear uniforms constituted sex discrimination in violation of Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1)); id. at 1032 ("So long as [personal appearance regulations] find some justification in commonly accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily violations of Title VII even though the standards differ somewhat for men and women."); Jespersen v. Harrah's Op'g Co., 444 F.3d 1104, 1110 (9th Cir.2006) (en banc) (majority) (sustaining make-up requirement for female employees in absence of objective evidence that such requirement imposed unequal burden on women) ("We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an `unequal burden' for the plaintiff's gender.") (citations omitted); id. at 1115-16 (Pregerson, J., dissenting) (contending that make-up requirement constituted the sort of impermissible sex-stereotyping proscribed by Price Waterhouse); id. at 1117 (Kozinski, J., dissenting) (contending that because make-up requirement had no genuine equivalent in grooming standards for male workers, question of fact presented as to whether standards imposed unequal burdens on men and women); Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir.1977) (grooming standards imposing different limitations on hair length and style for male and female employees did not constitute sex discrimination absent allegation that standards were subject to unequal enforcement between the sexes); Earwood v. Continental Se. Lines, Inc., 539 F.2d 1349, 1350 (4th Cir.1976) ("sex-differentiated grooming standards do not, without more, constitute discrimination under Title VII of the Civil Rights Act of 1964"); Knott v. Missouri Pac. R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975) ("Defendant's hair length requirement for male employees is part of a comprehensive personal grooming code applicable to all employees. While no hair length restriction is applicable to females, all employees must conform to certain standards of dress. Where, as here, such policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities."); Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (en banc) ("It does not appear that defendant fails to impose grooming standards for female employees; thus in this respect each sex is treated equally…. [B]oth sexes are being screened with respect to a neutral factor, i.e. grooming in accordance with generally accepted community standards of dress and appearance.") (internal quotation marks and citations omitted); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C.Cir.1973) (grooming regulations that prohibited men from wearing long hair and required women with long hair to secure it did not constitute sex discrimination violating Title VII: "Giant enforces strict grooming regulations against both male and female employees."); Harper v. Edgewood Bd. of Educ., 655 F.Supp. 1353, 1356 (S.D.Oh. 1987) (school did not violate students' equal protection rights by enforcing school board's dress regulations and prohibiting students from attending school prom dressed in clothing of opposite sex; school dress code did not differentiate based on sex but required students to dress in conformance with community standards); Johnson v. Joint Sch. Dist. No. 60, Bingham Cnty., 95 Idaho 317, 508 P.2d 547, 548-49 (1973) (school dress code that prohibited female students from wearing slacks, pantsuits, or culottes impermissibly discriminated on the basis of sex); Scott v. Bd. of Educ., Union Free Sch. Dist. No. 17, Hicksville, 61 Misc.2d 333, 305 N.Y.S.2d 601, 606-07 (N.Y.Sup.1969) (similarly finding invalid provision of school dress regulations prohibiting girls from wearing slacks except with permission of principal when warranted by cold weather); Jeremiah R. Newhall, Sex-Based Dress Codes and Equal Protection in Public Schools, 12 Appalachian J. Law 209 (2013); Jennifer L. Greenblatt, Using the Equal Protection Clause Post-VMI to Keep Gender Stereotypes Out of the Public School Dress Code Equation, 13 U.C. Davis J. Juvenile Law & Policy 281 (2009).
Whether and to what extent these cases survive Price Waterhouse is a question that we have not yet had occasion to address. The Ninth Circuit has concluded that sex-differentiated grooming standards remain permissible after Price Waterhouse, see Jespersen, 444 F.3d at 1109-12; Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 875 n. 7 (9th Cir.2001), although it has left the door open to proof that some sex-specific standards may be the product of impermissible sex-stereotyping, Jespersen, 444 F.3d at 1113. But we may assume, without deciding, that this line of authority remains mostly if not wholly unmodified by Price Waterhouse.
The relevant and dispositive point here is that this line of precedent has been ignored entirely in this appeal. The parties have litigated the hair-length policy in isolation rather than as an aspect of any broader grooming standards applied to boys and girls basketball teams.
We were told, when we raised the subject at oral argument, that male and female athletes alike are subject to grooming standards; and indeed the parties jointly stipulated below for purposes of the preliminary injunction hearing that whereas only the boys basketball and baseball teams have hair-length policies, the other school athletic teams do have grooming policies. But the content of those grooming policies has never been established, and the fact that there are grooming standards for both girls and boys teams was not even mentioned in the stipulated facts submitted to the district court for purposes of resolving the case.
The stipulated facts reveal only that there is a hair-length policy for the boys basketball team but for not for the girls basketball team (or, for that matter, any other girls team). As such, the stipulated facts indicate that a boy wishing to play basketball at Greensburg is subject to a requirement, impinging upon a recognized liberty interest, that a girl is not.
Presumably in this case, the school will indeed argue that its policy provides extensive grooming rules (albeit not identical ones) both for boys and for girls:
Appropriate undergarments must be worn and not visible. Camis for girls and undershirts for boys are allowed, but not required, and must not show.
Make-up may not be worn until the 7th grade and must be conservative in nature.
Tattoos and body piercings, other than girls' earrings, are not allowed. Earrings must be limited to 1 earring per ear. Large, dangling or hoop-type earrings are not allowed.
Jewelry other than watches for boys or girls, and small earrings on girls, may not be worn. This includes bracelets. Bracelets are not allowed. Official RMCA bracelets are allowed to be worn.
Necklaces may be worn but should be inside the shirt.
Hairstyle and hair color must be conservative in nature. Boys' hair must not extend below the top of the shirt collar in the back, the bottom of the ears on the sides or the eyebrows in front. Mohawk, faux hawk, no symbols, shapes or designs of any kind shaved into the head or anything that inhibits the learning environment as determined by the campus principal.
Hair may not be spiked. Large hair decorations may not be worn. Bandanas may not be
worn. Highlights must be two tones lighter or darker than the student's natural hair color.
No highlights that are not a natural hair color.
No pocket chains or hats may be worn in the building.
And the Supreme Court's pending case on whether gender identity discrimination violates Title VII may ultimately affect the analysis as well, depending on what reasoning the Court endorses. You can read the plaintiff's motion for a temporary restraining order, and here's the school's public statement in response (its legal arguments have not yet been filed):
Rocky Mountain Classical Academy works hard every day to create a positive school environment for all its students. Since the School's opening, an important component of this has included a dress code for all students. Our dress code is part of our overall student code of conduct, which expects students to uphold a high standard of excellence and contribute in a positive fashion to their class and the school. Our dress code is published on our website and contained in the Parent Student Handbook, which all parents must review and sign at the beginning of each school year. The mother in this situation signed the Parent Student Handbook at the beginning of the year like all other parents. She was aware of RMCA's dress code prior to enrolling her son in Kindergarten.
As with every other parent, numerous RMCA employees have asked the mother to bring her son to school in compliance with the dress code, which would mean removing his earrings when he is at school. She has refused and appealed her disagreement up the chain of command to the RMCA Board, which upheld the dress code after a public meeting on December 3, 2019. Once the Board made its final decision, the School instructed the mother to comply with the dress code by December 9, but she continued to refuse. This left the School no choice but to suspend the student for willfully disobeying the School's rules. The School will continue to insist that this family, like every other, obeys the RMCA dress code, which contributes towards the positive educational environment that all RMCA families enjoy each day.