A.A., by and through his parents and legal guardians, Michelle BETENBAUGH and Kenney Arocha; Michelle Betenbaugh, individually; Kenney Arocha, individually, Plaintiffs-Appellees, v. NEEDVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
No. 09-20091.
United States Court of Appeals, Fifth Circuit.
July 9, 2010.
611 F.3d 248
III
In sum, we conclude that the Improved Lot Exemption of
Accordingly, we reverse the district court‘s order dismissing the plaintiffs’ ILSFDA claims and remand for further proceedings.
REVERSED AND REMANDED
Roger D. Hepworth (argued), Kristen Zingaro Foster, Henslee Schwartz, L.L.P., Austin, TX, Jeffrey Lee Hoffman, Henslee Schwartz, L.L.P., Houston, TX, for Defendant-Appellant.
David M. Feldman, Jacqueline L. Lundy, Rogers, Morris & Grover, L.L.P., Houston, TX, for Texas Ass‘n of School Boards Legal Assistance Fund, Amicus Curiae.
Matthew L. Fletcher, East Lansing, MI, for Cross, Lomawaima, Amici Curiae.
David Allen Furlow, Thompson & Knight, L.L.P., Houston, TX, for Nansemond Indian Tribal Ass‘n of Va, Amicus Curiae.
Patricia Andrea Ferguson-Bohnee, Tempe, AZ, for Lipan apache Tribe of Texas, Amicus Curiae.
Asim M. Bhansali, Keker & Van Nest, L.L.P., San Fransisco, CA, for Amer. Jewish Committee, Hindu Amer. Foundation, Interfaith Alliance, Sikh Coalition, United Sikhs, Amici Curiae.
David Morris Gossett, Julia Maria Glover, Mayer Brown, L.L.P., Richard Brian Katskee, Ayesha Khan, Americans United for Separation of Church & State, Washington, DC, for Americans United for Separation of Church and State, Anti-Defamation League, Amici Curiae.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A Native American boy and his parents challenge a school district‘s requirement that he wear his long hair in a bun on top of his head or in a braid tucked into his shirt. We agree with the district court that the requirement offends a sincere religious belief and hold it invalid under Texas law.
I
When this dispute began, A.A. was a five-year-old prospective kindergartner whose parents were planning to move to Needville, Texas, a small town located forty-five miles southwest of downtown Houston. The school district in Needville1 has long had a grooming policy, which, among other things, provides that “[b]oys’ hair shall not cover any part of the ear or touch the top of the standard collar in back.” The policy‘s stated design is “to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority.” In keeping with his Native American religious beliefs, A.A. has never cut his hair, which he has at times kept unbraided, and in one and two braids.
Like most young children, A.A.‘s beliefs hitch to those of his parents, Kenney Arocha and Michelle Betenbaugh. Arocha identifies as Native American and both he and his son are members of the state-recognized Lipan Apache Tribe of Texas.2 While Arocha and Betenbaugh have raised their son according to Native American tenets, Arocha‘s own religious beliefs have evolved over the years. As a child, Arocha‘s maternal grandfather and uncle told him that he was Native American, instructed him in certain beliefs, and “gave him tools” to guide him through the day and to help him “better understand his purpose.” Arocha believes that members of his Native American tribe fled the United States to avoid being placed on reservations, explaining, he suggests, why some in the family, like his mother, identify as Hispanic and practice Catholicism.
Though he too practiced Catholicism and Mormonism at times as he grew older, Arocha began to “reconnect” to his Native American religion and the teachings of his grandfather and uncle more than a decade ago. He believes that his religious values reflect Native American beliefs and are thus connected to his ancestry:
What I like to do, I like to have reverence every day to understand that at every turn, no matter what it was, no matter what it is that we‘re doing, something somewhere had to give itself up for us and to understand that and pay
Arocha explains that his understanding of his religion is a journey and that he continues to research Native American religion and culture on a daily basis and engages in a ritual form of prayer called smudging.
Long hair is part of Arocha‘s religious beliefs. He wears his hair long, as he did as a young child before he was forced to cut it for school—an experience he describes as “unsettling.” His grandfather wore his hair short, but his uncle wore his hair long and in one or two braids. As an adult and over time Arocha came to find religious meaning in wearing his hair long as he gained greater understanding of his grandfather and uncle‘s teachings. The result is that, as with other aspects of Arocha‘s religious experience, “something he has been doing for a long time winds up being something that‘s more significant,” and for more than a decade he has seen his long hair as “a symbol, an outward extension of who we are and where we come from, our ancestry and where we‘re going in life” and “a constant reminder to us of who we are.” Arocha last cut his hair‘s length about ten or eleven years ago, though he does trim the sides on occasion because of the summer heat. He will not cut his hair‘s length unless he is mourning for a loved one. An employer once threatened to terminate him if he did not cut his hair, but Arocha refused. And, when he underwent brain surgery a few years ago, he worked with his doctors to keep his long braids.
Arocha and Betenbaugh have passed these familial religious traditions on to their son and so, as we have noted, A.A.‘s hair has never been cut. A.A.‘s parents have explained to him that his hair is a connection to his ancestors, as well as a reminder of “how long he has been here and an extension of who he is.” When others ask about his long hair, A.A. responds that he is Native American. He once refused to wear a wig as part of a Halloween costume because he did not want it to cover his braids. While A.A. “customarily keeps” his hair “in two 13-inch-long braids,” he does not always do so.
II
Not yet in Needville, A.A.‘s family began planning a move to the town in 2007. In November of that year, Betenbaugh contacted the Needville Independent School District in anticipation of A.A.‘s enrollment the following fall.
Betenbaugh first e-mailed Linda Sweeny, the secretary of school superintendent Curtis Rhodes, and asked whether her son‘s “long hair” would pose a problem in light of the dress code, and what documentation would be necessary to prove his Native American heritage.3 Superintendent Rhodes never received the e-mail and Betenbaugh received no response.
Betenbaugh sent a second e-mail in May 2008 to the elementary school‘s principal, Jeanna Sniffin, asking if A.A.‘s “long hair” worn “in accordance with their [Native American] heritage” would pose a problem.4 Sniffin responded, “[o]ur dress code
About two weeks later, Rhodes met with A.A.‘s parents to discuss the hair length issue. He requested proof of the family‘s religious beliefs. Arocha and Betenbaugh explained that their beliefs were passed down orally, and thus they could not direct him to written documentation. They did, however, present Rhodes with related legal precedent, a copy of the
The parents did appeal, urging that, “[w]e as parents disagree with Mr. Rhodes’ [sic] decision because our son‘s hair and its length are a sacred part of the belief system we practice. Cutting hair in order to comply with the dress code is not an option.”
Local media began to cover the dispute. The Houston Press quoted Superintendent Rhodes as saying:
I‘ve got a lot of friends that are Native Americans ... and they all cut their hair. We‘re not going to succumb to everything and just wash away our policies and procedures.... If you want to think we‘re backwards ... no one is asking you to move to Needville and have these opinions invoked on you.
The school board met to consider the request. Before a “standing room only” crowd, Arocha and Betenbaugh both spoke, as did many members of the Needville community. Superintendent Rhodes then recommended to the board that the family‘s exemption request be denied as premature since they did not yet live in the district. He had come to this conclusion following his initial meeting with the family, but had not mentioned it to the family until then. The school board agreed with Rhodes‘s recommendation, even though there was no official policy requiring a child to live in Needville before a dress code exemption could be decided and Rhodes had denied the family‘s initial request notwithstanding this apparent residency requirement.
III
The family accelerated its efforts to move to Needville. The District informed them that mere residency was not enough and that they could only apply for an exemption once A.A. actually enrolled in school. This time the District required the family to complete a newly created “exemption form,” which purported to require documentary evidence of the family‘s membership in “a recognized church or religious organization whose tenets and practices conflict.”6 Using the form, the
[A.A.] has a sincerely held religious belief—as do many Native Americans—that his long hair is not only an expression of his ancestry and heritage, but also a sacred symbol of his life and experience in this world, and that it should be cut only to mark major life events such as the death of a loved one. [A.A.] has learned these religious beliefs from his father, who shares the same ancestry, heritage, and beliefs.
The exemption form also stated that A.A.‘s hair had never been cut. His exemption request pending, A.A. enrolled in Needville Elementary in August 2008, with school set to start in two weeks’ time.
Superintendent Rhodes denied the family‘s second exemption request less than a week later and Arocha and Betenbaugh again submitted an appeal to the school board. Their appeal notice indicated that (1) although Arocha had not yet gained membership in a particular Native American tribe, his DNA indicates he is biologically descended from Native Americans; (2) Arocha learned of his heritage through his grandfather and uncle, he believes he is descended from the Lipan Apaches, and he was collecting the required genealogical records to apply for tribal membership; (3) Arocha had not cut his hair for ten years, even risking termination from a job and maintaining his braids during a month-long stay in the hospital; and (4) A.A.‘s hair had never been cut.
The school board convened a hearing on the exemption request a few days later. Before the meeting began, Rhodes met privately with the family. It was at this point that Rhodes first learned that Arocha had kept his braids even during brain surgery. Finding this compelling evidence of Arocha‘s sincerity, Rhodes offered to allow A.A. to wear his hair in a bun on top of his head as a compromise, moving the discussion away from hair length. A.A. and his family rejected the offer.
The school board meeting began in plenary session. The family, who was now represented by counsel, spoke about the facts and the law in support of an exemption. After the family‘s presentation, the board met in an executive session closed to the public and to the family. In that session, the board consulted with Superintendent Rhodes who urged the adoption of a new exemption that would permit A.A. to wear his hair long “in a tightly woven single braid down his back with the hair behind his ears, out of his eyes and the braid tucked into the collar of his shirt.” He had formulated some version of this exemption before his earlier meeting with the family but had not mentioned it to them. The board adopted Rhodes‘s suggestion.
The board then returned to the meeting‘s plenary session, where board member Kim Janke announced the decision to the public. She expressed hesitation: “[a]lthough I disagree with the law presented in this case and understand and support why Mr. Rhodes made the decision that he made, I move that the Board grant the [tucked braid exemption].”
IV
Prior to the school board meeting, Arocha and Betenbaugh had alerted the school district that they would seek an injunction in federal court and the District had agreed “not to discipline [A.A.] until the soonest of the following occurs, the student receives an injunction to prevent his compliance from the dress code or September 22, 2008.” A few days later, the District stated that its understanding of the agreement was that any grace period would only be triggered if the District “did not grant A.A. an exemption by August 20, 2008.” Because the District had granted an exemption in some form, in its view no disciplinary grace period was in effect.
When A.A. began kindergarten on August 25 he wore his hair in two long braids. That day, the District informed Arocha and Betenbaugh that A.A. would need to comply with one of the exemptions by September 2 or discipline would be imposed. He did not comply, so on September 3, A.A. was placed in in-school suspension where he received one-on-one instruction and thirty minutes of recess a day. During in-school suspension he was not allowed to socialize with other children.
This continued until the family filed suit and the district court entered a temporary restraining order one month later on October 3, allowing A.A. to return to class and wear his hair as he wanted. Before the district court, the family alleged that the District‘s policy violates (1) A.A.‘s rights to free exercise of religion under the First and Fourteenth Amendments; (2) similar rights under the
The family sought declaratory and injunctive relief pursuant to
Because we do not decide constitutional claims when a case can be footed on alternative grounds,9 our analysis begins with state law—specifically, the
That act—often abbreviated as TRFRA—prevents any government agency in Texas from “substantially burden[ing] a person‘s free exercise of religion” unless it “demonstrates that the application of the burden to the person ... is in furtherance of a compelling governmental interest; and ... is the least restrictive means of furthering that interest.”10 While this court under TRFRA “must accept the trial court‘s fact findings supported by the evidence, the ultimate answers determine the legal rights protected by the Act and are thus matters of law.”11 “A district court‘s legal conclusions at a bench trial are reviewed de novo and its findings of facts are reviewed for clear error.”12
Texas did not enact TRFRA on a clean slate. The act is a response to a twenty-year federal kerfuffle over the level of scrutiny to apply to free exercise claims under the First Amendment of the United States Constitution. Nine years before TRFRA‘s enactment, the Supreme Court held, in Employment Division, Department of Human Resources of Oregon v. Smith, that the First Amendment‘s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct.13 Responding to Smith, Congress enacted the
As originally enacted, RFRA applied to both federal and state governments, “but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds.”19 In City of Boerne v. Flores, the Supreme Court invalidated RFRA as applied to the states and
Congress again responded. This time it enacted the
Unhappy with the federal government‘s solution, thirteen states took matters into their own hands, including Texas, which enacted TRFRA to “provide[] the same protections to religious free exercise envisioned by the framers of its federal counterpart, RFRA.”23 In other words, TRFRA provides protections to religious freedom “in addition to the protections provided under federal law” and the Texas and United States constitutions.24 Because TRFRA and its federal cousins—RFRA and RLUIPA—“were all enacted in response to Smith and were animated in their common history, language and purpose by the same spirit of religious freedom,” Texas courts “consider decisions applying the federal statutes germane in applying the Texas statute.”25
Last year, in Barr v. City of Sinton, the Texas Supreme Court applied TRFRA for the first time.26 Barr centered on a local pastor who ran a religious halfway house to help non-violent offenders reenter society. The halfway house was “religious” in part because applicants were required to sign a statement of Christian faith and agree to a list of “biblical guidelines for Christian living.”27 The pastor sued in state court after the city in which he lived passed zoning ordinances effectively banning halfway houses altogether.28 Justice Hecht, writing for the Texas Supreme Court, concluded that the city‘s ordinance violated TRFRA.
Justice Hecht also set out the statutory text in four familiar elements. To succeed on a claim under TRFRA, a plaintiff must demonstrate (1) that the government‘s regulations burden the plaintiff‘s free exercise of religion and (2) that the burden is substantial. If the plaintiff manages that showing, the government can still prevail if it establishes that (3) its regulations further a compelling governmental interest and (4) that the regulations are the least restrictive means of furthering that interest.29
VI
To succeed in their TRFRA claim, then, A.A. and his parents must first outline the scope of A.A.‘s “free exercise of religion.” TRFRA defines “free exercise of religion”
The district court found that A.A. and Arocha “have a sincerely held belief that their hair should be worn long.”33 The family contends that this finding recognized a belief in wearing hair visibly long. The District agrees that A.A. has a sincere religious belief in leaving hair uncut, but argues that the evidence demonstrates that there is no sincere belief in wearing hair visibly long, essentially that the District can require him to wear his uncut hair in ways that best conform his appearance to that of male students who cut their hair to meet dress code requirements.34 We focus on A.A.‘s putative religious belief in wearing his hair in a manner that does not conceal its expressive length.
As a starting point, the District concedes that some Native Americans keep their hair long and in braids as a tenet of their sincere religious beliefs.35 It instead emphasizes the fact that other Native Americans fasten their long hair in buns or otherwise obscure their hair so that it is not visibly long. If those Native Americans can comply with their religious beliefs
“The Fifth Circuit has had few occasions to conduct this part of the inquiry, as the sincerity of a religious belief is not often challenged.”36 When sincerity is challenged, though, courts are reticent to draw the sort of line the District now requests. In Thomas v. Review Board of Indiana Employment Security Division,37 Thomas, a Jehovah‘s Witness, had requested a layoff from his manufacturing job and unemployment benefits after being transferred to a foundry that supplied military armaments because the work violated his religious principles.38 The Indiana Supreme Court called the choice a “personal philosophical” one, citing inconsistencies in the plaintiff‘s explanation of his beliefs, his practice of them, and the fact that other Jehovah‘s Witnesses testified that working on armaments was “scripturally acceptable.”39 The Supreme Court reversed, explaining that when a plaintiff draws a line, “it is not for the Court to say it is an unreasonable one.”40
Thomas made plain that “the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”41 This insight recognizes that “[i]ntrafaith differences are not uncommon among followers of a particular creed,” and that “the judicial process is singularly ill equipped to resolve such differences.”42 The District‘s proffered anecdote—that other Native Americans do not do as A.A. does—is thus unpersuasive in our analysis, no matter how true. Sincere religious belief cannot be subjected to a judicial sorting of the heretical from the mainstream—certainly not in discharge of duty to faithfully apply protections demanded by law.43 Efforts to that end would put at risk the protection that the First Amendment and TRFRA are meant to provide.
Thomas does not, however, “relieve a complaining adherent of the burden of demonstrating the honesty and accuracy of his contention that the religious practice at issue is important to the free exercise of his religion.”44 On this score, the District argues that A.A. and his parents have put forth shifting explanations of A.A.‘s religious belief, first focusing on the cutting of hair and then later on not concealing its expressive length.
We disagree. Despite the family‘s articulation of religious belief using different words at different times, we must refuse to dissect religious tenets just “because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.”45 In this case, focusing on evidence of a “struggle” and limiting A.A.‘s religious belief to the cutting of hair would disregard the salient thrust of the family‘s statements of belief from the very beginning and ignore the sequence of the District‘s suggestions to which they were
While both the family‘s request for exemption and the District‘s requirements can be seen as shifting over time, we see no calculated gamesmanship by either of them because “[n]ot surprisingly, the record ... was not made with an eye to the microscopic examination often exercised in appellate judicial review.”47 An adherent‘s religious beliefs are not rendered insincere merely because he articulates them differently in response to shifting objections. An applicant seeking religious exemption is not obliged to provide an accounting of his beliefs, warrant it as final, and then when subject to public disbelief, refrain from speaking up to clarify to others who do not share his faith. In sum, we do not look to efforts to better explain religious beliefs with exacting incredulity, unless there is reason to do so. Nor do we see the District‘s shifts over the course of the controversy to be evidence of bad faith. A lawsuit of this ilk is a struggle for all concerned. The exchanges of the parties ultimately sharpened the intersection of regulation and belief.
Even assuming that the difference between protected wearing of hair uncut and wearing it visibly long transcends the semantic, A.A. and his parents have met their burden. On the facts of this case and in light of the longstanding judicial shyness with line drawing, we decline to confine A.A.‘s religious belief to the cutting of hair but instead agree with the district court that he has demonstrated a sincere religious belief in wearing his hair uncovered—visibly long.
The district court found that A.A. believes that his “hair should be worn long,” and our use of the word “visibly” to describe A.A.‘s belief is consistent with the fairest reading of that finding.48 The word
The district court had “no difficulty finding that some Native American communities assign religious significance in hair length,” and that Arocha had shown “that he himself has these ‘deeply held religious beliefs.‘” Arocha had made this showing, the court concluded, not only because he “has not cut his hair in ten to eleven years” and “[h]is long hair addresses ‘fundamental’ and ‘ultimate’ concerns,” but because “[h]e describes his hair as ‘an outward extension of who we are and where we come from, our ancestry and where we‘re going in life.‘”51 This echoes the district court‘s undisputed findings of fact, which we repeat once again: “[w]hen people ask A.A. why he has long hair, he tells them it is because he is Native American“; “people ask [Arocha] whether he is Native American, and he tells them that he is“; “[w]hen Plaintiff Betenbaugh bought A.A. a wig as part of a Halloween costume, he refused to wear it because he did not want to cover his braids“;52 the family‘s written exemption request “stated that ‘A.A. has a sincerely held religious belief—as do many Native Americans—that his long hair is not only an expression of his ancestry and heritage, but also a sacred symbol of his life and experience in this world.‘”53
Although Thomas may support the conclusion that the scope of A.A.‘s sincere religious belief includes its braiding, we need not decide that question as the District does not prohibit the braiding of his hair.54
VII
Having demonstrated a sincere belief in wearing visibly long hair, the family must also show that the District‘s policy and proffered exemptions will substantially
A
From federal precedent, we know that “at a minimum, the government‘s ban of conduct sincerely motivated by religious belief substantially burdens an adherent‘s free exercise of that religion.”60 When conduct is subject to an outright ban, “alternative accommodations do not alter ‘the fact that the rituals which [the adherent] claims are important to him—without apparent contradiction—are now completely forbidden.‘”61 This federal view matches Barr‘s instruction that “a burden on a person‘s religious exercise is not insubstantial simply because he could always choose to do something else.”62 In that case, the Texas Supreme Court had “no hesitation” in holding that prohibiting a pastor from operating his halfway house within city limits was a “substantial burden” on the pastor‘s free exercise of religion.63
Requiring A.A. to cut his hair—a total ban of conduct—would also likely constitute a substantial burden.64 But that is
When a restriction is not completely prohibitive, Texas law still considers it substantial if “alternatives for the religious exercise are severely restricted.”65 Together with Barr‘s other prescriptions, that means a burden imposing a less-than-complete ban is nonetheless substantial if it curtails religious conduct and impacts religious expression to a “significant” and “real” degree.66 Here, that standard is met.
B
First, the burden on A.A. is significant. The exemptions place a direct burden on A.A.‘s religious conduct and expression by, as the district court put it, “deny[ing] A.A. the opportunity to express a religious practice that is very dear to him and his father.” While the District‘s policy and exemptions do not completely bar A.A.‘s free exercise, the bar is complete in the sense that he cannot wear his hair visibly long at all during the school day, a critical period of time in a young child‘s development.67 The stricture will define his days as a student. As other courts have recognized in analogous contexts, depriving children of religious exercise during the school day is a significant burden. In Cheema v. Thompson, a RFRA case, the Ninth Circuit found a substantial burden because a school regulation prevented Sikh children from bringing ceremonial knives to school, despite the school‘s agreement to allow shorter knives riveted to their sheaths.68 Likewise, the Southern District of Texas, in
The exemptions would also indirectly burden A.A.‘s religious conduct and expression. If A.A. complies with either of them, he will stand out as someone subject to official stigma. If he does not, he will be exposed to punishment. The district court believed these “terms of existence” would force A.A. to choose between attending Needville public schools and following his religious beliefs.
C
Not only is the burden on A.A. significant, it is real. As the district court found, A.A. has already recognized that he has been treated differently because of his hair. And, given that A.A. understands that his hair is part of the practice and expression of his Native American beliefs, the obvious lesson is that he is being treated differently because of his religion. This recognition risks feelings of shame and resentment, a risk that, while real now, will continue to grow. A.A. will also be subject to constant threat of punishment should his hair fall out of a bun, or escape his shirt. This threat is real.
VIII
“To say that a person‘s right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct.”70 TRFRA permits the regulation of free exercise if the government can establish a compelling interest that justifies the burden,71 and that it has adopted the least restrictive means of achieving that interest.72 “Because religious exercise is a fundamental right ... justification can be found only in ‘interests of the highest order.‘”73
On these counts, the District‘s amicus, the Texas Association of School Boards Legal Assistance Fund takes the lead. The Fund argues that the District‘s grooming policy is supported by five goals: to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority. The Fund relies on a handful of Texas cases that find these
While the advanced scholastic concerns are no doubt legitimate,74 the Fund‘s argument suffers from two critical defects. Most important, none of the decisions on which the Fund relies considered a challenge to a school regulation that merits strict scrutiny—as A.A.‘s challenge under TRFRA plainly does. The Fund identifies lawsuits asserting a student‘s interest in liberty under the due process clause of the Fourteenth Amendment;75 the right to be free from discrimination based on gender under federal law‘s Title VII,76 under the equal protection clause of the Fourteenth Amendment,77 and under state-law equal protection provisions;78 and the right to free expression under the First Amendment.79 These challenges did not require the government to demonstrate a compelling interest as the District must do here. Rather, we upheld each of the challenged regulations if they reflected a “rational determination,”80 or if they were not “arbitrary” or “unreasonable.”81 Such determinations answer questions far different than the one we examine today. The District cannot parlay what may qualify as sufficient to meet rational basis scrutiny into an interest compelling enough to justify a substantial burden upon sincere religious exercise. After all, Texas applied the compelling interest standard to free exercise claims—the “most demanding test known to constitutional law”82—for a reason. Critically, TRFRA reaches behind Smith to a jurisprudence that did not allow a rule of general applicability to demand conformity of conduct enjoying constitutional protection.
Nor, as the Fund suggests, are we obliged to take a school‘s asserted interests at face value without further examination. It is true that, because “[e]ducators have an essential role in regulating school affairs and establishing appropriate standards of conduct,”83 it is “[s]chool boards, not federal courts” who have the
Here, the District makes only cursory attempts to translate the abstract goals of its grooming policy into an interest sufficiently compelling to justify requiring a Native American kindergartner to confine his hair to a bun or to a braid tucked behind his shirt. In the words of Yoder, one of the two Supreme Court decisions on which TRFRA‘s compelling interest test is based, the District has failed “to show with more particularity how its admittedly strong interest ... would be adversely affected by granting an exemption” to A.A.89
A
We can quickly discard hygienic concern: the District does not dispute that A.A.‘s hair is kept clean, nor does it explain why its “one braid down the back” exemption would foster hygiene as compared to two braids.
Safety concerns are insufficient, too. The hazard of long hair in an elementary school setting does not rise to the level of, say, the danger posed by the wearing of insecurely fastened yarmulkes by Orthodox Jews during high school basketball games, a situation examined by the Seventh Circuit nearly thirty years ago.90 And, as Judge Posner found, even that danger was “not great” (though “not wholly trivial either“).91 Moreover, to say that the District‘s safety concerns are not compelling, we need not go so far as a divided Ninth Circuit panel did in Cheema v. Thompson. There, the panel majority held under RFRA that a school did not have a compelling interest in a wholesale ban on ceremonial knives worn by some Sikhs.92 The court remedied the violation by crafting an exemption that allowed the knives in slightly modified form.93 To the extent A.A.‘s long hair poses a cognizable
Any risk of disruption and its potential degree are less readily predicted. While there is evidence that A.A. has twice been mistaken for a girl while at school, there is no indication that these occasional cases of mistaken gender identity were disruptive and certainly not such to constitute a compelling interest; the confusion was easily resolved and the District did not even bother informing his parents when a misunderstanding did arise.
The district court did find that A.A.‘s hair “sometimes falls in his eyes and his teacher has to tell him to tuck it behind his ear,” but explained that the teacher occasionally has to make the same suggestion to girls and A.A.‘s presence has not interfered with the teacher‘s ability to teach. The District provides no argument or evidence to the contrary.
In fact, the District concedes that the lone religious exemption it has granted in the past—to a Muslim girl who wished to wear a headscarf—permitted the exempted student to look different than the other students, posed no threat of disruption to the school, and did not give rise to any concern that the student would be bullied or teased. The most the District can muster in this space, then, is that a bun or a tuck will present about the same potential for disruption as allowing A.A. to wear long hair in other ways.
B
We are left then with the District‘s stated interests in instilling discipline and asserting authority. To this list, Superintendent Rhodes would add one last concern, explaining that in crafting the “tucked braid” exemption, he did not necessarily seek to effect the goals of the grooming policy at all, but to “try to have [A.A.‘s] hair resemble the rest of the student body in Needville.”
Under the compelling interest test, the District‘s support for these concerns quickly dissolves. For one, the District has failed to put forth a single case in which a school‘s interests in discipline, authority, and uniformity have proved enough when subject to strict scrutiny. Yes, courts, including the Supreme Court, have found similar interests sufficient—under varying levels of scrutiny—to override an adherent‘s right to a religiously informed appearance in different circumstances. But, when applying a compelling interest standard, “[c]ontext matters.”94
Context matters, for example, when members of the military ask the federal government to accommodate their religious practices. In Goldman v. Weinberger, a divided Supreme Court rejected an Orthodox Jew‘s Free Exercise challenge to an Air Force regulation prohibiting the wearing of headgear—including Judaism‘s yarmulkes—while indoors.95 Emphasizing the deference owed to military judgments when the need to “foster instinctive obedience, unity, commitment, and esprit de corps” is at stake, the court relied on a low threshold of constitutional protection: “The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judg-
Context matters, too, when police officers request religious exemptions from their department‘s uniform policies. Under Smith‘s generally applicable test, we have held that a police department‘s interest in “a disciplined, identifiable, and impartial police force,”99 is “legitimate” enough “in the context of uniformed law enforcement personnel” to ban unauthorized religious symbols or items on an officer‘s uniform.100 And, when it is a liberty and not a religious interest at stake, perhaps less is required; a department‘s “desire to make police readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity is felt to inculcate within the police force itself” is a “sufficiently rational justification” to defeat an officer‘s liberty interest in wearing long hair.101
Context has been particularly important to our weighing of constitutional values when prisoners seek religious exemptions from jail restrictions under RLUIPA. Although the act gives courts the power to mete out religious exemptions to federal prisoners under strict scrutiny, Congress was “mindful of the urgency of discipline, order, safety, and security in penal institutions.”102 Recognizing this limitation on RLUIPA, we have held a prison‘s interest in “security” compelling enough to uphold regulations burdening free exercise,103 in one case explaining that long hair “facilitates the transfer of contraband and weapons into and around” prisons and makes it easier for “escaped prisoners to alter their appearance from the photographs taken periodically of all ... inmates.”104 At the same time, however, we have left open the related—and closer—question of whether RLUIPA protects an inmate‘s interest in growing a religiously-prescribed beard.105
With no evidence specific to A.A.‘s request for exemption, the District makes no suggestion that A.A.‘s visibly long hair will erode obedience and discipline among the general student population. It also puts forth no claim that a grant of an exemption here will lead to future claims destructive of the District‘s general policy.106 The evidence is all to the contrary: A.A.‘s religious exemption request is just the second ever received by the District (as we have noted, the first request was granted). Treating A.A.‘s exemption request as an outlier, it is, in the district court‘s words, “difficult to imagine that allowing one male child to wear long hair, as part of his religious beliefs, would disturb the school‘s sense of order.”
So seen, Superintendent Rhodes‘s concern for aesthetic homogeneity, like the others, is insufficiently compelling to overtake the sincere exercise of religious belief. Regardless, the District‘s exemptions do not serve it: A.A. would still be non-conforming in appearance—either as the only child wearing a thirteen-inch braid tucked inside his shirt or the only male child wearing a bun.
C
Had the District succeeded in presenting specific evidence connecting its concerns to A.A.‘s request for exemption, any connection would be weakened by the District‘s decision to permit girls to wear their hair visibly long.107 The District has
D
To review, while a school may set grooming standards for its students, when those standards substantially burden the free exercise of religion, they must accomplish something. Under TRFRA, that “something” is a compelling interest. The District only invokes the same five generalized interests without explaining the play of those interests here. TRFRA demands more. The questions of detail and degree that the District would answer for its student do not rise to the level of compelling interest, and are therefore left to the adherent alone.
IX
A.A. has succeeded in his free exercise claim under TRFRA. He has a sincere religious belief in wearing his hair uncut and in plain view; that belief is substantially burdened by the District‘s grooming policy—even with the District‘s proffered exemptions; and the District has put forth insufficient justification for its persistence in this matter. The Texas Supreme Court, speaking through Justice Hecht, has made plain that it reads TRFRA to have bite in the protection of religious freedom in Texas public schools, that religious freedom does not invariably fall before generic rules. Rather, the regulation must respond to specific circumstances. And it is Texas law that we apply today.
Because we do not decide questions of a constitutional nature “unless absolutely necessary to decide the case,”110 and because our holding under Texas law provides a non-constitutional basis sufficient to support the judgment below, we decline to address the remaining claims on appeal.
AFFIRMED.
PATRICK E. HIGGINBOTHAM
UNITED STATES CIRCUIT JUDGE
I respectfully dissent. I fully respect A.A.‘s sincere religious belief that his hair not be cut, but that is not the belief on which the majority opinion rests. With respect for the scholarship of the majority opinion, its lengthy reasoning results in substantial mistakes.
I
The district court found that Native American communities “assign religious significance to hair length” and that the plaintiffs in particular “find significance in the fact that [their] hair is long.” It then concluded that the plaintiffs have “a sincerely held belief that their hair should be worn long.” A.A. ex rel. Bettenbaugh v. Needville Indep. Sch. Dist., 701 F.Supp.2d 863, 875-76 (S.D.Tex.2009). The court ultimately reasoned that the accommodation policy, which “will require [A.A.] to wear [his hair] ‘in a tightly woven braid,’ stuffed down the back of his shirt,” substantially burdens this belief “[b]y imposing a physically burdensome [i.e., uncomfortable] restriction” that “will influence [A.A.] to cut his hair in violation of his religious beliefs.” Id. at 876-77 (emphasis added).1 In short, the district court concluded that the school district gave A.A. a Hobson‘s choice that effectively forced A.A. to forgo maintaining uncut, long hair and thus constituted a substantial burden on his religious belief. On appeal, the majority leaves this specific rationale of the district court in the dust bin and starts us on a meandering search for some cohesive support for the plaintiffs’ claim.
The school district, on appeal, argues the district court erred in finding that A.A. was required to wear his hair tucked down his collar, or in any one way, and that it was further error for the district court not to consider more comfortable alternative hair styles that were also compliant (off his collar) with its grooming policy, e.g., in a braided bun. The majority concedes that the district court erred in treating “in a plait and down his collar” as mandatory. Maj. op. at 253. Thus, the question on appeal should be whether the other options proposed by the school district would unconstitutionally burden A.A.‘s religious beliefs.
Clearly, none of the other “off the collar” options proposed by the school district impose a substantial burden on A.A.‘s belief that he should not cut his hair. Indeed, braided hair is an option chosen often by A.A. himself. It is true, of course, that accommodations proposed by the school district would not disclose the exact length of A.A.‘s hair.2 And so the majority has now, on appeal, framed the plaintiffs’ purported religious belief not merely to be uncut long hair, but to be the visibility of
The majority has confected this interpretation entirely on its own. First, the relevant portions of the district court‘s opinion never use the words “visibility” or “in plain sight,” contrary to what the majority opinion suggests. Maj. op. at 257.3 Second, the court mentions hair length—not visibly displayed hair length—as the protected religious belief nearly a dozen times.4 Third, the substantial burden analysis of the district court was concerned only that the “in a plait and down his collar” accommodation encouraged A.A. to cut his hair, i.e., was a “substantial burden” on his religious belief of not cutting his hair. The district court expressed no concern that “in a plait down his collar” would hide his hair.5 Fourth, interpreting the district court as addressing visibility as a religious belief rests uncomfortably with other portions of the district court‘s opinion; that is, the district court gave full discussion to visibility of hair length in the section of its opinion concerning free speech. In short, nothing in the district court‘s opinion indicates an acceptance of
A.A.‘s argument that visibility was a protected belief; only by seizing a single line out of the district court‘s opinion—“A.A. [has] a sincerely held belief that [his] hair be worn long,” A.A., 701 F.Supp.2d at 876—and then reading it out of context could the majority extend the district court‘s findings on uncut long hair to visibility of the length of hair.
The majority nevertheless reasons that the district court‘s statement—that “their hair should be worn long“—contains an implicit finding on the sincerity of the plaintiffs’ alleged belief in visibility because the district court used the word “worn.” According to the majority, “worn” means to “exhibit” or “present.” But common sense strongly cuts against interpreting “worn” to denote visibility. If “worn” means visible, t-shirts, socks, and petticoats, not to mention ordinary garments worn under sweaters and jackets, are not being worn because they are not seen. Defining the word “worn” to require “visibility” leaves one virtually gobsmacked.6
II
The non-faux issue on appeal, as reflected in the opinion and analysis of the
The majority—somehow melding or confusing the religious belief it asserts, i.e., visibility, with whether that belief is substantially burdened—says that any hair style that conceals the exact length of A.A.‘s hair is a substantial burden on his religious belief. The district court, however, never extended its holding this far. The district court only said that “in a plait and down his collar” was an uncomfortable manner of wearing his hair; this discomfort was a substantial burden upon wearing uncut long hair because the discomfort would encourage A.A. to cut his hair. All parties agree that the district court erred in assuming that “in a plait and down his collar” was the only choice available to A.A. Thus the school district argues, and I agree, that the religious belief of uncut long hair reasonably can be accommodated by wearing hair in a ponytail as a bun (or down the collar if he chooses; a t-shirt would seem to minimize the discomfort that concerned the district court).
As I have said, in addressing the substantial burden issue, the majority rests on its erroneous conclusion that A.A. has a belief in visibly long hair. It argues that any hair style that conceals the exact length of A.A.‘s uncut long hair is a substantial burden on the religious belief of visible long hair. This argument is belied because hair plaited in a bun or on top of his head is visible long hair.
But the majority—though not the district court—further argues that any restriction on A.A.‘s hair style is a substantial burden because compliance will portray A.A. as a cipher who cedes his religious belief to the authority of the school district and thus he will be officially stigmatized. Maj. op. at 266-67.
If he can wear his hair in any style he wishes, the majority reasons, his religious belief would then bear no official imprimatur of school district policy. With due respect, this is not sensible. By this reasoning, any regulation of religious expression constitutes a substantial burden because regulation presumptively restricts the right at issue and thus stigmatizes the assertive student who is in compliance. This is not, nor has it ever been, the law. As the majority agrees, Maj. op. at 264-65, a regulation constitutes a substantial burden only if “alternatives for the religious exercise are severely restricted.” Barr v. City of Sinton, 295 S.W.3d 287, 305 (Tex.2009). This leaves ample room for minimally invasive regulations, such as the one at issue here.
III
For the reasons asserted herein, I essentially dissent from the majority‘s conclusions in toto.
E. GRADY JOLLY
UNITED STATES CIRCUIT JUDGE
Frances ANDERSON, Petitioner, v. Janet NAPOLITANO, Secretary, Department of Homeland Security, Respondent.
No. 08-60494.
United States Court of Appeals, Fifth Circuit.
July 9, 2010.