February 27, 2014

The 7th Circuit Court observes that "Coach Meyer’s policy prohibits far more than an Age-of-Aquarius, Tiny-Tim, hair-crawling-past-the-shoulders sort of hair style..."

"... it compels all male basketball players to wear genuinely short hair. In 2014, it is not obvious that any and all hair worn over the ears, collar, or eyebrows would be out of the mainstream among males in the Greensburg community at large, among the student body, or among school athletes. (Even one or two men on this court might find themselves in trouble with Coach Meyer for hair over the ears.) We certainly agree that the pedagogical and caretaking responsibilities of schools give school officials substantial leeway in establishing grooming codes for their students generally and for their interscholastic athletes in particular. But that leeway does not permit them to impose non-equivalent burdens on school athletes based on their sex."

And so, a short-hair rule that applied to boys and not to girls was deemed a violation of Equal Protection.

The court is not saying that dress-and-grooming rules need to be identical for male and female students. The violation seems to emerge at some point when the rule aimed at boys is too severe and when there's no severity toward the girls. Actually, the court lacked information about the leniency toward the girls. From the PDF of the case:

Although girls can evidently wear their hair as long as they wish, could a female basketball player wear her hair in an extremely short “buzz-cut,” which might literally qualify as “clean cut” but perhaps not in the sense that Coach Meyer means it and perhaps not in synch with local norms? Surely girls with longer hair must do something to keep their hair out of their eyes while playing basketball.... But, at the risk of stating the obvious, boys with longer hair could do the same. In fact, male athletes use head and hair bands to do this very thing, as anyone who has watched professional basketball or football games recently can confirm.
As the separate opinion by Judge Manion stresses, the parties litigated the case as if it was all about substantive due process (right of privacy). Manion agrees that the student deserves to win, but only because the school failed to meet its burden to justify the different policy toward males and females. Maybe the school could have established that the different policies were grounded in "social norms or community standards." It didn't try. The Equal Protection aspect of the problem was ignored.

Why not remand and develop the record? The answer is easy and procedural: The parties submitted the case for final judgment with stipulated facts.

64 comments:

Pogo is Dead said...

The coach should have called it a tax, applied it to everyone and then given the girls waivers.

tim maguire said...

Why is a federal court second guessing a coach's approach to coaching? If he feels short hair helps is team, who are they to question him?

Judgment is rendered by the final score, not some meddling arrogant jackass in a robe.

tim maguire said...

I withdraw my comment. Pogo wins.

Simon said...

Not one of the Seventh Circuit's finer moments, it must be said.

Jack Wayne said...

If the judge had any self-respect he would have ordered the female atheletes to get buzz cuts. After all, it's all about the outcomes not the rights.

Ann Althouse said...

"Why is a federal court second guessing a coach's approach to coaching? If he feels short hair helps is team, who are they to question him?"

Because the school did not submit evidence justifying the sex discrimination.

What if the school decided black players had to shave their head and white players could wear their hair up to 1-inch long? Would you let the coach make that call?

Oso Negro said...

This case really takes me back. In 1973, I was the top swimmer for my local high school. I happened to have hair down past my shoulders. My swim coach was a former Marine D.I., and I have no doubt my hair style was well out of line with his personal values. At the state meet, the Missouri High School officials wanted me out because of the concern that my hair would "clog the pool drain." I am sure it was really about their offense at what I represented. Who took the fight to the forces of goodness and their notions of public decency? My coach, the Marine D.I. When it was done, I got to swim, alright, pony tail and all. That was a man, right there. R.I.P. Coach, R.I.P.

Ann Althouse said...

I hope commenters are reading this post to the end, because it explains the litigation choices of the parties that forced the court in this direction.

The court rejected the privacy right claim which is what the parties thought the case was about. There was sex discrimination and the school didn't try to justify it.

Please pay attention to that before snarking.

Judge Easterbrook, a prominent conservative, is in the majority.

Spend some time thinking about evidence and procedure, please.

Kevin said...

I did read to the end and believe I understand the issues involved and still believe that this should never have involved a minute of court time (you know, the robe type of court, not the droopy shorts kind of court).

Pogo is Dead said...

"What if the school decided..."

This isn't law school. That is not what happened.

The coach did what the military does and what coaches have done for decades. It *gasp* recognized and assumed differences between boys and girls.

Only progressives and lawyers (but I repeat myself) think history and tradition are meaningless, or demand that you document their A(prior) existence as proof.

The judge asserted a new standard without proof, that boys are the same as girls.

Hell, even if the coach had cited community standards or culture or somesuch, the judge would have found some other verbiage to rule against it.

The outcome is decided first and the ruling made to fit it.

In college chemistry we called that "dry-labbing."

tim maguire said...

Professor, you're missing the point, as did the judges.

It is fully rational and within the normal functions of coaching to embrace a philosophy that short hair for boys helps their concentration, their discipline, or whatever else they want to say will help the team play better. It is entirely consistent with that philosophy to conclude that short hair will not have a useful effect on girls.

Again, for 7th circuit judges and anyone else who doesn't understand sports, the final score declares the success of the approach.

hawkeyedjb said...

"Spend some time thinking about evidence and procedure, please."

That's the problem. Why do we allow disputes about haircuts into the court? Why does it become the subject of evidence and procedure? One more area of life that has been used to reduce the majesty of the law to a trivial, personal pursuit.

Too much law, not enough civil society.

Shouting Thomas said...

Judge Easterbrook, a prominent conservative, is in the majority.

Spend some time thinking about evidence and procedure, please.


Why?

Obviously, it's just another payday for a rent seeking lawyer.

I can see why you would want to distract attention from that, since you make your living at that trough.

You and your colleagues continue to force everything into a payday for... you and your colleagues... while lecturing the rest of us that we should focus on bullshit minutia.

The issue for me is becoming clear. How do we drive you and your colleagues out of power?

Remember when you were a kid and the corrupt, self-seeking adults wanted to discuss the details and not the big picture? Dylan had quite a bit to say about that, didn't he?

Bob Ellison said...

Ann Althouse said "I hope commenters are reading this post to the end, because it explains the litigation choices of the parties that forced the court in this direction."

No, I'm not going there. This decision is stupid on its face. tim maguire explains it: a coach should be able to set some rules, and the court should not intrude.

Intrude is what the court does, often, with courtly rules and lawyerly talk. That's how Roe, Grutter, and Kelo happened.

You can't just point at the court and say "it's following rules!" as proof that what it does is correct. The courts made up the rules, and disobey them as the judges on them see fit.

RecChief said...

sorry, I am not thinking about evidence and procedure. However, I have a question. Does this coach Meyer coach both the boys and girls teams? I'm thinking that a parallel exists to the military where there is a set standard Army wide, but individual commanders can exceed the standard. For instance, back when we had black boots, the regulation stated that boots had to be shined. One command that I was in, it was ok to just meet the standard in the reg, but in another, if you didn't wear boots that looked like patent leathers, you got smoked until you fixed the problem.

tim maguire said...

Next thing you know, Judge Easterbrook is going to rule that the girls team has to employ the full court press the same number of times as the boys team. And shoot the same number of 3-pointers. And practice dribbling for an equal number of minutes.

And we should be ok with that because he's conservative.

Shouting Thomas said...

What you refuse to consider, under the guise of conducting a law class in a weblog, professor, is the obvious corruption and self-dealing of your profession, your school and your colleagues.

You've become the problem.

You aren't cute little Suze Retolo, the outsider. You're a gatekeeper for a corrupt industry that is suffocating everybody.

Unknown said...

"Because the school did not submit evidence justifying the sex discrimination.

What if the school decided black players had to shave their head and white players could wear their hair up to 1-inch long? Would you let the coach make that call?"

Non-sequitur.

Pogo is Dead said...

What if students sued because passing dogs can piss on the trees, but students cannot?

Has the school submitted evidence justifying the species discrimination?

Christ almighty.

Oso Negro said...

Ah, the Professor with the scoldpost!

Bob Ellison said...

Let's have a class action requiring coaches to lift any and all rules that male players wear cups, because the females don't have to.

damikesc said...

What if the school decided black players had to shave their head and white players could wear their hair up to 1-inch long? Would you let the coach make that call?

Do courts often make decisions based on hypotheticals?

Because, if so, then SCOTUS has a lot to answer for some of their verdicts that had blatantly obvious repurcussions.

If I were the school, I'd shut down the boys program. Who needs TWO teams full of women?

How far do we take that? Are men no longer SOLELY responsible for sex if both parties are drunk? Currently, men are expected to be the one in control.

Do Progressives really think men and women are IDENTICAL? Do they not grasp the concept that EQUAL and IDENTICAL aren't the same damned thing?

Why do we even HAVE women's teams? That seems awfully sexist. Girls aren't forbidden from trying out for boy's teams, but vice versa, it is quite verboten. And women's tees at golf courses? Sexism, pure and simple.

Would the court have been OK if they said women had to have the short hair? What if the woman all quit? Would they have been penalized under Title IX?

Why aren't condoms covered by Obamacare? Seems really sexist, too.

Hey, the NFL wants to make it illegal for players to say the "N" word...but not a word about CHEERLEADERS SAYING IT!!

That is totally unconstitutional.

You know what this case needed? Bullies in the locker room to shut these pathetic pussies up before it went this far.

Pogo is Dead said...

There shouldn't even be separate girl's and boy's squads, extending the judges reasoning.

Big Mike said...

How times have changed. Here's how coach John Wooden handled Bill Walton back in the day.

Pogo is Dead said...

This case, like the SCOTUS Obamacare rulings, exemplify the rational applied to the irrational.

Schizophrenics think like this, too. Highly organized rule-based insane twaddle.

Simon said...

Ann Althouse said...
"Judge Easterbrook, a prominent conservative, is in the majority."

Few judges have been more influential on my thinking about law than Easterbrook, but I think that he would be quick to point out that he is a prominent libertarian.

khesanh0802 said...

@Big Mike

Terrific video. The most successful basketball coach of all time. You've got to love the "if you want to play" do it my way approach!

Ann is way off the mark on this one. This is NOT a hypothetical. The case is a perfect argument for " first we kill all the lawyers"!

DKWalser said...

I've read the entire post. I've not read the briefs or the opinion. So, with the freedom that comes from a lack of critical information, allow me to say that I don't see this as a sex discrimination issue. The school has two basketball teams, a mens team and womens team. Each team should be free to set its own team rules. One of the purposes of team rules is to get individuals to play together as a team through a shared sense of commitment and sacrifice. For any given group of players, the optimal set of rules may differ. So, the lack of similarity between approaches may be explained without resorting to gender.

When I was in high school, the football, basketball, and wrestling teams all had different team rules including different grooming standards. On days we had a meet, the wrestling team members all had to wear ties. The basketball team didn't have to wear ties on its game days. I hated to wear a tie, but I did it because I was part of the team. It helped bond us together. With 20/20 hindsight, I should have sued instead.

MadisonMan said...

The parents who took out the lawsuit are idiots. At some point their son will discover that the world will not align to his views, and that he'll have to fit in. His parents have done him no favors in taking out the lawsuit. Helicopter Parents of the Year?

Edward Graham said...

Manion's dissent simply is more persuasive. The majority did not "lack evidence" on the relevant grooming rules applied to girls and that evidence showed that they also were subject to comparable grooming rules. Even if the school had failed to submit sufficient evidence on the point, the majority simply could have assumed no other evidence existed, which actually would help the plaintiffs (as Easterbroke noted during oral argument), or could have permitted a supplemental record (as Manion suggests in his dissent). And, of course, if Posner had been on the panel, he could have relied on "facts" outside the record. This IS a ridiculous case.

Jason said...

Does this mean boy's golf teams now get to drive from the lady's tee?

Ann, is this a new thing? Are you planning on exporting the 30 IQ point drop you normally bring to posts about gays and gay issues to other subjects now, too?

Ann Althouse said...

"Professor, you're missing the point, as did the judges. It is fully rational and within the normal functions of coaching to embrace a philosophy that short hair for boys helps their concentration, their discipline, or whatever else they want to say will help the team play better. It is entirely consistent with that philosophy to conclude that short hair will not have a useful effect on girls."

No. You are missing the point. The school could have attempted to make this argument, but it did not. It would have taken some evidence, and the case was submitted on factual stipulations that did not give the court a basis for saying what might have been established. You can't make up a case that was not presented and expect the court to reach that. It couldn't.

Ann Althouse said...

@Jason You clearly don't understand the issue about evidence and have chosen to be simply abusive instead.

Up your game or I will delete.

khesanh0802 said...

Ann;
Why argue procedure when the case should never have been brought in the first place? Perhaps that is a misplaced application of common sense.
Have to go with Madison Man on this one.

Humperdink said...

But idiots none the less.

Great lesson for the kiddies later in life.

rcocean said...

That this case was accepted by the 7th Circuit, simply shows we have too many Federal judges with too much time on their hands.

rcocean said...

Of course, once you accept the idea that the "equal protection clause" covers pretty much everything and bears no relationship to the original intents of the 14th Amendment - you get this kind of silly judicial micro-management.

Question for legal beagles: Does mean the plantiff's will be able to recover their legal fees plus some kind of award from the school?

Ann Althouse said...

"Why argue procedure when the case should never have been brought in the first place?"

Because the criticism is of the court and the court isn't the one that brought the case. The court has an obligation to resolve the disputes that are brought before it, and it is required to follow a judicial method.

Fine to criticize the student for filing a case against his school. Fine to criticize the way the lawyers handled the case. I'd agree with you about that.

My statements relate to criticizing the court. A court can't just say this shouldn't have been filed or get out of here you numbskulls and solve your problem like normal people or whatever your knee-jerk reaction is.

Ann Althouse said...

On the side of the student, however, let's remember that the state compels young people to attend school. Within the force of that compulsion, there is a heavy moral duty to treat young people with respect and to do what is in their interest.

The realm of the sports coach is interesting in this regard. No one is required to be on a sports team, and great demands are made of athletes. I think imposing conformity in grooming makes sense in the interest of the kids, but there should be some explanation for why the standard is so different for males and females.

If it's a benefit to require hair conformity, why is it not a benefit for the girls (or why are the girls not given this benefit)?

Jason said...

Just did 21 years in military service, with vastly different and strictly enforced grooming standards for men and women.

Somehow we managed.

gadfly said...

From the Urban Dictionary comes the word describing the real purpose of the court:

chickified

the sissying of society by means of being soft & weak. Mainly pertaining to the emasculation or castration of men as a society.

Jason said...

Why shouldn't we criticize the court? Somehow judge Manion managed not to be an idiot.



khesanh0802 said...

Ann; Doesn't the court have any leeway to refuse a case that it feels is foolish and a waste of the court's time? (Honest question.)

Jason said...

Well, appeals courts do, no?

Or are we granting cert like Oprah gives away cars?

tim maguire said...

khesanh0802, this is federal appeals court, so the answer is, yes, it does. Contrary to the professor's earlier comment on the subject.

damikesc said...

I think imposing conformity in grooming makes sense in the interest of the kids, but there should be some explanation for why the standard is so different for males and females.

Have lawyers become so enamored with their cleverness that "BECAUSE BOYS AND GIRLS ARE DIFFERENT" is foreign thinking?

Think the coach learned anything?

That the parents are fucking morons and the kid needs a savage ass-beating?

The lawyer who filed the suit for the parents should be disbarred. If any asinine suit can be brought, why limit them to lawyers and not allow just any moron to file them? Lawyers are supposed to decline to bring blatantly asinine suits.

The court should cease to exist for even ruling and not slapping it down as a waste of court time and resources. Some suits are simply idiotic. I hear courts whining that they lack manpower to handle their caseload, then I take a look at the cases they choose.

Ann Althouse said...

"Why shouldn't we criticize the court? Somehow judge Manion managed not to be an idiot."

I'm pushing you to competently criticized the court. Don't you be an idiot.

Ann Althouse said...

Manion agreed with the outcome. The student won.

tim maguire said...
This comment has been removed by the author.
tim maguire said...

Having done something I prefer not to do (actually reading through the decision), I note that the argument I and many others here have been making, which the professor says the court couldn't consider, the court did consider--"team unity" is all over the decision.

I like the first sentence of the dissent: "Having ruled against A.H.’s primary argument, the court
decides this case on equal protection arguments that A.H. did
not make, rooted in authority he did not cite."

So, assuming the dissent is correct, it did in fact decide the case based on an argument not before it.

Simon said...

rcocean said...
"That this case was accepted by the 7th Circuit, simply shows we have too many Federal judges with too much time on their hands."

The Courts of Appeals don't have discretionary dockets—they have to take every case appealed. When you make a howling error like that, it's hard for people to take any of your other criticisms seriously.

Simon said...

(Perhaps I should be more specific and say every appeal from a final judgement that is timely etc. etc.; obviously there are exceptional cases in which the courts of appeals have discretion.)

Bob Ellison said...

When you have real arguments on your side, argue them. When you're holding up a stupid decision, tell your readers they're stupid.

Kirk Parker said...

Althouse,

"A court can't just say ... get out of here you numbskulls and solve your problem like normal people"

Well, maybe here is the procedural reform we need! An official protocol for "getting laughed out of court".

Kirk Parker said...

... with prejudice, of course!

rcocean said...

"The Courts of Appeals don't have discretionary dockets—they have to take every case appealed. When you make a howling error like that, it's hard for people to take any of your other criticisms seriously."

'Federal Judges' doesn't mean just Federal appeals judges. SHM. Why would you think my criticism - that this whole case is an absurd overreach of the Federal judiciary - related just to the appeal? That doesn't even make sense.

And what do you mean by "take"? So, unlike the SCOTUS, Fed Appeals circuits have to give EVERY Appeal a full blown 3-judge panel hearing with a detailed opinion?

Jason said...

manion agreed with the outcome. The student won.

What makes you assume it was the outcome I'm critical of? You have to gloss over an awful lot to pretend one can't object to stupid reasoning even when it comes to a correct outcome, by sheer dumb luck.

This is how three people can come to a similar conclusion even if only one of them is not an idiot.

In truth, professor, if you scroll down in the decision to page 28, you will see that Manion writes "concurring in part and dissenting in part."

So even Manion had some criticisms if the court's decision.

Competent ones, if I may be so bold as to borrow a word you used in a post directed at me, above.

And you! A law professor!!!!11!!1eleventy!!!

Simon said...

RCO: "Why would [I] think [your] criticism … related just to the appeal?" Because what you said was that the fact "[t]hat this case was accepted by the 7th Circuit, simply shows we have too many Federal judges with too much time on their hands."

mccullough said...

It's sort of Monday morning quarterbacking to second guess the litigation strategy, which likely in loved saving money. But the school district should have articulated better the following argument:

The policy delegates to each coach the hair length rule/policy. The policy itself that applies to all athletes is basically hair must be neat and clean, no hair coloring or shaving numbers or logos on your hair and no Mohawks.

Coach meyer's hair length policy is not about grooming. It is about team unity. Everyone wears short hair because it emphasizes team over individual, similar to the military. The rule is no different than the NY Yankees or Indiana basbetball's rule that a player's name does not go on the jersey. Only the team name matters. Neither school policy, the Equal Protection Clause, or Title IX require the boys and girls team to adhere to the same code of team over individual, much less the same exact method for following that rule. Coach Meyer is not the girls coach. The team philosophy of that coach is the business of that coach, as long is it is not inconsistent with applicable law or the school district's policy. The plaintiff in this case doesn't want to follow the coach's approach to team unity. He wants to retain his individual identity at all times. But he has no more right to ignore the coach's team first hair length rule than to insist that he get to put his name on the back of his jersey.

Bob Ellison said...

You have right on your side.

But we have procedure on our side.

You lose.

Wait, we had a point!

No, you failed to make the point on form 1040FM3.

Unknown said...

"Long haired, freaky people need not apply," did not realize this was a sexist anthem.

Unknown said...

Is justice relative or absolute?

Is the court responsible for justice, or procedures?

Would it have been possible for the judge to ask for information not supplied either party as necessary to execute his responsibilities?

Nichevo said...

What do you think will come, professor, after the world in which this shit happens is gone?

Nichevo said...

Another question. If this kid is now dismissed from the team, how is he prevented from suing, claiming that hr was dismissed for hair? How can coach dismiss him for any other reason? How does coach cleverly couch it , if it is really forbthisbreason, so as not to be sued and lose? Isn't team membership at some discretion of the coach?