Arocha, et al v. Needville Indep Sch

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Arocha, et al v. Needville Indep Sch

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 9, 2010 N o . 09-20091 Lyle W. Cayce Clerk

A .A ., by and through his parents and legal guardians, Michelle Betenbaugh a n d Kenney Arocha; MICHELLE BETENBAUGH, individually; KENNEY A R O C H A , individually, P la in t iffs ­ Appellees v.

N E E D V I L L E INDEPENDENT SCHOOL DISTRICT, D e fe n d a n t ­ Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges. P A T R I C K E. HIGGINBOTHAM, Circuit Judge: A Native American boy and his parents challenge a school district's r e q u ir e m e n t that he wear his long hair in a bun on top of his head or in a braid t u c k e d into his shirt. We agree with the district court that the requirement o ffe n d s a sincere religious belief and hold it invalid under Texas law.

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No. 09-20091 I W h e n this dispute began, A.A. was a five-year-old prospective k in d e r g a r t n e r whose parents were planning to move to Needville, Texas, a small t o w n located forty-five miles southwest of downtown Houston. The school

d is t r ic t in Needville1 has long had a grooming policy, which, among other things, p r o v id e s that "[b]oys' hair shall not cover any part of the ear or touch the top of t h e standard collar in back." The policy's stated design is "to teach hygiene, in still discipline, prevent disruption, avoid safety hazards, and assert authority." In keeping with his Native American religious beliefs, A.A. has never cut his h a ir , which he has at times kept unbraided, and in one and two braids. L ik e most young children, A.A.'s beliefs hitch to those of his parents, K e n n e y Arocha and Michelle Betenbaugh. Arocha identifies as Native American a n d both he and his son are members of the state-recognized Lipan Apache Tribe o f Texas.2 While Arocha and Betenbaugh have raised their son according to N a tiv e American tenets, Arocha's own religious beliefs have evolved over the y e a r s . As a child, Arocha's maternal grandfather and uncle told him that he was N a tiv e American, instructed him in certain beliefs, and "gave him tools" to guide h im through the day and to help him "better understand his purpose." Arocha
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Needville Independent School District.

When appellees filed this suit, Arocha's application for membership in the tribe was still pending. Both the appellees' brief and the amicus curiae brief of the Lipan Apache Tribe indicate that application has now been accepted. Though the record on appeal has not been updated to reflect this development, we take the tribe at its word as to administrative matters--such as tribal membership--that are within its unilateral discretion. And, in any event, tribe membership or lack thereof does not materially affect our analysis. See Frazee v. Illinois Dept. of Employment Sec., 489 U.S. 829, 833 (1989) (explaining that "[u]ndoubtedly, membership in an organized religious denomination . . . would simplify the problem of identifying sincerely held religious beliefs," but that a belief is no less sincere just because the individual is not "responding to the commands of a particular religious organization").

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No. 09-20091 b e lie v e s that members of his Native American tribe fled the United States to a v o id being placed on reservations, explaining, he suggests, why some in the fa m ily , like his mother, identify as Hispanic and practice Catholicism. Though he too practiced Catholicism and Mormonism at times as he grew o ld e r , Arocha began to "reconnect" to his Native American religion and the t e a c h in g s of his grandfather and uncle more than a decade ago. He believes that h is religious values reflect Native American beliefs and are thus connected to his a n cestry : W h a t I like to do, I like to have reverence every day to understand that at e v e r y turn, no matter what it was, no matter what it is that we're doing, s o m e t h in g somewhere had to give itself up for us and to understand that a n d pay close attention to that, in order to respect whatever it was that g a v e itself up for me. A r o c h a explains that his understanding of his religion is a journey and t h a t he continues to research Native American religion and culture on a daily b a s is 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 h e did as a young child before he was forced to cut it for school--an experience h e describes as "unsettling." His grandfather wore his hair short, but his uncle w o r e his hair long and in one or two braids. As an adult and over time Arocha c a m e to find religious meaning in wearing his hair long as he gained greater u n d e r s t a n d in g of his grandfather and uncle's teachings. The result is that, as w it h other aspects of Arocha's religious experience, "something he has been d o in g for a long time winds up being something that's more significant," and for m o r e than a decade he has seen his long hair as "a symbol, an outward extension o f who we are and where we come from, our ancestry and where we're going in

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No. 09-20091 life " and "a constant reminder to us of who we are." Arocha last cut his hair's le n g th about ten or eleven years ago, though he does trim the sides on occasion b e c a u s e of the summer heat. He will not cut his hair's length unless he is m o u r n in g for a loved one. An employer once threatened to terminate him if he d id 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 t o their son and so, as we have noted, A.A.'s hair has never been cut. A.A.'s p a r e n t s have explained to him that his hair is a connection to his ancestors, as w e ll 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 w a n t it to cover his braids. While A.A. "customarily keeps" his hair "in two 13in c h -lo n g braids," he does not always do so.

II N o t 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

I n d e p e n d e n t School District in anticipation of A.A.'s enrollment the following fa ll. B e t e n b a u g h first e-mailed Linda Sweeny, the secretary of school s u p e r in t e n d e n t Curtis Rhodes, and asked whether her son's "long hair" would p o s e a problem in light of the dress code, and what documentation would be

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No. 09-20091 n e c e s s a r y to prove his Native American heritage.3 Superintendent Rhodes never r e c e iv e d the e-mail and Betenbaugh received no response. B e t e n b a u g h sent a second e-mail in May 2008 to the elementary school's p r in c ip a l, Jeanna Sniffin, asking if A.A.'s "long hair" worn "in accordance with t h e ir [Native American] heritage" would pose a problem.4 Sniffin responded, " [o ]u r dress code in Needville does not allow boy's [sic] hair to touch their ears o r go below their collar. Long hair is not allowed." Betenbaugh then e-mailed S u p e r in t e n d e n t Rhodes informing him that A.A. "is Native American and has lo n g hair in accordance with his father's beliefs" and that "[w]e keep his hair c le a n and neatly braided." A b o u t two weeks later, Rhodes met with A.A.'s parents to discuss the hair le n g t h issue. He requested proof of the family's religious beliefs. Arocha and B e t e n b a u g h explained that their beliefs were passed down orally, and thus they c o u ld not direct him to written documentation. They did, however, present R h o d e s with related legal precedent, a copy of the American Indian Religious F r e e d o m Act,5 and the results of a 2005 DNA test indicating that Arocha is of N a tiv e American descent. Arocha and Betenbaugh also explained that,

a c c o r d in g to their beliefs, hair was not to be cut except after life-changing events, c h a r a c t e r iz in g it as "a yardstick of wisdom." They related that A.A.'s decision to

Betenbaugh stated in her e-mail: "My four year old son will start school next year at Needville Elementary. He is of native american [sic] descent and has long hair. Will this be a problem and what kind of documentation will be needed to prove his heritage?" The e-mail reads in relevant part: "[M]y husband and therefore my son are of native american [sic] descent. Both of them have long hair in accordance with their heritage. Will this be a problem and how will it be addressed?"
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42 U.S.C. § 1996.

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No. 09-20091 w e a r long hair to school was a "personal choice." Superintendent Rhodes denied t h e exemption request in a written denial letter that gave no explanation for his d e c is io n though it provided information on how to appeal his decision to the s c h o o l board. The parents did appeal, urging that, "[w]e as parents disagree with Mr. R h o d e s ' [sic] decision because our son's hair and its length are a sacred part of t h e belief system we practice. Cutting hair in order to comply with the dress c o d e is not an option." L o c a l media began to cover the dispute. S u p e r in t e n d e n t Rhodes as saying: I 'v e got a lot of friends that are Native Americans . . . and they all cut their h a ir . We're not going to succumb to everything and just wash away our p o lic ie s and procedures . . . . If you want to think we're backwards . . . no o n e is asking you to move to Needville and have these opinions invoked on you. T h e school board met to consider the request. Before a "standing room o n ly " crowd, Arocha and Betenbaugh both spoke, as did many members of the N e e d v ille community. Superintendent Rhodes then recommended to the board t h a t the family's exemption request be denied as premature since they did not y e t live in the district. He had come to this conclusion following his initial m e e t in g with the family, but had not mentioned it to the family until then. The s c h o o l board agreed with Rhodes's recommendation, even though there was no o ffic ia l policy requiring a child to live in Needville before a dress code exemption c o u ld be decided and Rhodes had denied the family's initial request n o tw it h s t a n d in g this apparent residency requirement. The Houston Press quoted

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No. 09-20091 III T h e family accelerated its efforts to move to Needville. The District

in fo r m e d them that mere residency was not enough and that they could only a p p ly for an exemption once A.A. actually enrolled in school. This time the D istr ic t required the family to complete a newly created "exemption form," which p u r p o r t e d to require documentary evidence of the family's membership in "a r e c o g n iz e d church or religious organization whose tenets and practices conflict." 6 U s i n g the form, the family responded to the District's objection to long hair, r e q u e s tin g that A.A. be exempted from any policy that "would require him to cut h is hair": [A .A .] has a sincerely held religious belief--as do many Native A m e r ic a n s -- t h a t his long hair is not only an expression of his ancestry a n d heritage, but also a sacred symbol of his life and experience in this w o r ld , and that it should be cut only to mark major life events such as the d e a t h of a loved one. [A.A.] has learned these religious beliefs from his fa t h e r , who shares the same ancestry, heritage, and beliefs. T h e exemption form also stated that A.A.'s hair had never been cut. His

e x e m p t io n request pending, A.A. enrolled in Needville Elementary in August 2 0 0 8 , with school set to start in two weeks' time. Superintendent Rhodes denied the family's second exemption request less t h a n a week later and Arocha and Betenbaugh again submitted an appeal to the

This "exemption form," though not specifically at issue here, suffers from its own constitutional difficulties, as the District seems to have acknowledged in a letter to the family's counsel on August 18, 2008. See, e.g., Frazee v. Ill. Dept. of Employment Sec., 489 U.S. 829, 834 (1989) (rejecting "the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization"); id. at 831 (rejecting a lower court's requirement that the asserted religious belief "be found in a tenet or dogma of an established religious sect") (internal quotation marks omitted). The District had never before used this exemption form.

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No. 09-20091 s c h o o l board. Their appeal notice indicated that (1) although Arocha had not yet g a in e d membership in a particular Native American tribe, his DNA indicates he is biologically descended from Native Americans; (2) Arocha learned of his h e r it a g e through his grandfather and uncle, he believes he is descended from the L ip a n Apaches, and he was collecting the required genealogical records to apply fo r tribal membership; (3) Arocha had not cut his hair for ten years, even risking t e r m in a t io n from a job and maintaining his braids during a month-long stay in t h e hospital; and (4) A.A.'s hair had never been cut. T h e school board convened a hearing on the exemption request a few days la t e r . Before the meeting began, Rhodes met privately with the family. It was a t this point that Rhodes first learned that Arocha had kept his braids even d u r in g brain surgery. Finding this compelling evidence of Arocha's sincerity, R h o d e s offered to allow A.A. to wear his hair in a bun on top of his head as a c o m p r o m is e , moving the discussion away from hair length. A.A. and his family r e je c t e d the offer. The school board meeting began in plenary session. The family, who was n o w represented by counsel, spoke about the facts and the law in support of an e x e m p t io n . After the family's presentation, the board met in an executive In that session, the board

s e s s io n closed to the public and to the family.

c o n s u lt e d with Superintendent Rhodes who urged the adoption of a new e x e m p t io n that would permit A.A. to wear his hair long "in a tightly woven s in g le braid down his back with the hair behind his ears, out of his eyes and the b r a id tucked into the collar of his shirt." He had formulated some version of this e x e m p t io n before his earlier meeting with the family but had not mentioned it t o them. The board adopted Rhodes's suggestion.

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No. 09-20091 T h e board then returned to the meeting's plenary session, where board m e m b e r Kim Janke announced the decision to the public. She expressed

h e s it a t io n : "[a]lthough I disagree with the law presented in this case and u n d e r s t a n d and support why Mr. Rhodes made the decision that he made, I m o v e that the Board grant the [tucked braid exemption]." There is no school district policy that prohibits a female student from w e a r in g two braids instead of one, or that requires her to tuck in her long hair. The District has granted the only other religious exemption request it has r e c e iv e d to date, allowing a Muslim girl to wear a headscarf.

IV P r io r to the school board meeting, Arocha and Betenbaugh had alerted the s c h o o l district that they would seek an injunction in federal court and the D is t r ic t had agreed "not to discipline [A.A.] until the soonest of the following o c c u r s , the student receives an injunction to prevent his compliance from the d r e s s code or September 22, 2008." A few days later, the District stated that its u n d e r s t a n d in g of the agreement was that any grace period would only be t r ig g e r e d 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 d is c ip lin a r y grace period was in effect. When A.A. began kindergarten on August 25 he wore his hair in two long b r a id s . That day, the District informed Arocha and Betenbaugh that A.A. would n e e d to comply with one of the exemptions by September 2 or discipline would b e imposed. He did not comply, so on September 3, A.A. was placed in in-school s u s p e n s io n where he received one-on-one instruction and thirty minutes of

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No. 09-20091 r e c e s s a day. During in-school suspension he was not allowed to socialize with o t h e r children. This continued until the family filed suit and the district court entered a t e m p o r a r y restraining order one month later on October 3, allowing A.A. to r e t u r n to class and wear his hair as he wanted. Before the district court, the fa m ily alleged that the District's policy violates (1) A.A's rights to free exercise o f religion under the First and Fourteenth Amendments; (2) similar rights under t h e Texas Religious Freedom Restoration Act; (3) A.A.'s rights to free expression u n d e r the First and Fourteenth Amendments; and (4) Arocha and Betenbaugh's F o u r t e e n t h Amendment due process right to raise A.A. according to their Native A m e r ic a n religion and heritage. During the litigation and responsive to the bun o r tucked braid requirement, Arocha expressed religious significance in braiding h is long hair. As the district court found, Arocha "feels that his hair is `a symbol, a n outward extension of who we are and where we come from, our ancestry and w h e r e we're going in life.'" The court explained that "[h]e believes that each b r a id and each plait has a deep meaning" and "that the very act of braiding h e lp s him feel connected to who he is." Arocha says that braids should be worn " in plain sight" and that "each braid has its own significance and . . . that's the w a y it should be presented." T h e family sought declaratory and injunctive relief pursuant to § 1983 and T e x a s law.7 The District conceded that A.A. has a right to some form of

e x e m p t io n from its grooming policy, but argued that either of the two proffered o p t io n s -- a single "tightly woven" braid tucked behind A.A.'s shirt or a bun on top o f his head--would be legally sufficient. The district court found for the family

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TEX. CIV. PRAC. & REM. CODE § 110.005.

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No. 09-20091 o n all four grounds and issued a permanent injunction against the District p r e v e n t in g the grooming policy's application to A.A.8 a p p e a le d to this court. The District timely

V B e c a u s e we do not decide constitutional claims when a case can be footed o n alternative grounds,9 our analysis begins with state law--specifically, the T e x a s Religious Freedom Restoration Act. That act--often abbreviated as TRFRA--prevents any government agency i n Texas from "substantially burden[ing] a person's free exercise of religion" u n le s s it "demonstrates that the application of the burden to the person . . . is in fu r t h e r a n c e of a compelling governmental interest; and . . . is the least r e s t r ic t iv e means of furthering that interest."1 0 While this court under TRFRA " m u s t accept the trial court's fact findings supported by the evidence, the u lt im a te answers determine the legal rights protected by the Act and are thus m a t t e r s of law."1 1 "A district court's legal conclusions at a bench trial are

r e v ie w e d de novo and its findings of facts are reviewed for clear error." 1 2

A.A. ex rel. Bettenbaugh v. Needville Indep. Sch. Dist., ___ F. Supp. 2d ____, 2009 WL 6318214 (S.D. Tex. 2009). The parties agreed, pursuant to FED. R. CIV. P. 65(a)(2), to consolidate the trial on the merits with the preliminary injunction hearing. Nw. Austin Mun. Util. Dist. No. One v. Holder, ___ U.S. ____, ____, 129 S. Ct. 2504, 2513 (2009) ("[T]he Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.") (internal marks and citations omitted).
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TEX. CIV. PRAC. & REM. CODE § 110.003(a), (b). Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009). Adkins v. Kaspar, 393 F.3d 559, 563 (5th Cir. 2004).

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No. 09-20091 T e x a s did not enact TRFRA on a clean slate. The act is a response to a t w e n t y -y e a r federal kerfuffle over the level of scrutiny to apply to free exercise c la im s under the First Amendment of the United States Constitution. Nine y e a r s before TRFRA's enactment, the Supreme Court held, in Employment D iv is io n , Department of Human Resources of Oregon v. Smith, that the First A m e n d m e n t 's Free Exercise Clause does not inhibit enforcement of otherwise v a lid laws of general application that incidentally burden religious conduct.13 R e s p o n d in g to Smith, Congress enacted the Religious Freedom Restoration Act o f 1993 (RFRA).1 4 RFRA expressly adopted the compelling interest test as set fo r t h in a pair of Supreme Court cases,1 5 Sherbert v. Verner 1 6 and Wisconsin v. Y o d e r .1 7 That test "prohibits `[g]overnment' from `substantially burden[ing]' a p e r s o n 's exercise of religion even if the burden results from a rule of general a p p lic a b ilit y unless the government can demonstrate the burden `(1) is in fu r t h e r a n c e of a compelling governmental interest; and (2) is the least restrictive m e a n s of furthering that compelling governmental interest.'" 18 A s originally enacted, RFRA applied to both federal and state g o v e r n m e n t s , "but notably lacked a Commerce Clause underpinning or a

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494 U.S. 872, 874, 890 (1990). 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. 42 U.S.C. § 2000bb(b)(1). 374 U.S. 398, 399­402 (1963). 406 U.S. 205, 221­29 (1972).

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City of Boerne v. Flores, 521 U.S. 507, 515­16 (1997) (quoting 42 U.S.C. § 2000bb-1; brackets in original).

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No. 09-20091 S p e n d in g Clause limitation to recipients of federal funds."1 9 In City of Boerne v. F lo r e s , the Supreme Court invalidated RFRA as applied to the states and their s u b d iv is io n s , finding that Congress had exceeded its remedial power under the F o u r t e e n t h Amendment to delineate the scope of constitutional violations.2 0 C o n g r e s s again responded. This time it enacted the Religious Exercise in L a n d Use and Institutionalized Persons Act of 2000 (RLUIPA),2 1 which "is la r g e ly a reprisal of the provisions of . . . RFRA," though "its scope is limited to la w s and regulations that govern (1) land use and (2) institutions such as prisons t h a t receive federal funds." 2 2 U n h a p p y with the federal government's solution, thirteen states took m a t t e r s into their own hands, including Texas, which enacted TRFRA to " p r o v id e [] the same protections to religious free exercise envisioned by the fr a m e r s of its federal counterpart, RFRA."2 3 In other words, TRFRA provides p r o t e c t io n s to religious freedom "in addition to the protections provided under fe d e r a l law" and the Texas and United States constitutions.2 4 Because TRFRA a n d its federal cousins--RFRA and RLUIPA--"were all enacted in response to S m ith and were animated in their common history, language and purpose by the

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Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). 521 U.S. at 532­36.

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Pub. L. No. 106-274, § 7, 114 Stat. 803, 806 (2000) (codified at 42 U.S.C. § 2000bb2(1)­(2) (2006)).
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See Adkins, 393 F.3d at 657. Merced v. Kasson, 577 F.3d 578, 587 (5th Cir. 2009) (citing Barr, 295 S.W.3d at 296). TEX. CIV. PRAC. & REM. CODE § 110.009(b).

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No. 09-20091 s a m e spirit of religious freedom," Texas courts "consider decisions applying the fe d e r a l statutes germane in applying the Texas statute." 2 5 L a s t year, in Barr v. City of Sinton, the Texas Supreme Court applied T R F R A for the first time.2 6 Barr centered on a local pastor who ran a religious h a lfw a y house to help non-violent offenders reenter society. The halfway house w a s "religious" in part because applicants were required to sign a statement of C h r is t ia n faith and agree to a list of "biblical guidelines for Christian living." 27 T h e pastor sued in state court after the city in which he lived passed zoning o r d in a n c e s effectively banning halfway houses altogether.2 8 Justice Hecht,

w r it in g for the Texas Supreme Court, concluded that the city's ordinance v io la t e d TRFRA. Justice Hecht also set out the statutory text in four familiar elements. To s u c c e e d on a claim under TRFRA, a plaintiff must demonstrate (1) that the g o v e r n m e n t 's regulations burden the plaintiff's free exercise of religion and (2) t h a t the burden is substantial. If the plaintiff manages that showing, the

g o v e r n m e n t can still prevail if it establishes that (3) its regulations further a c o m p e llin g governmental interest and (4) that the regulations are the least r e s t r ic t iv e means of furthering that interest.29

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Barr, 295 S.W.3d at 296. Id. Id. at 290. Id. at 291­92.

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Merced, 577 F.3d at 588 (citing id. at 300). See also TEX. CIV. PRAC. & REM. CODE § 110.003(a), (b); Barr, 295 S.W.3d at 307 ("Although TRFRA places the burden of proving a substantial burden on the claimant, it places the burden of proving a compelling state interest on the government.").

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No. 09-20091 VI T o succeed in their TRFRA claim, then, A.A. and his parents must first o u t lin e the scope of A.A.'s "free exercise of religion." TRFRA defines "free

e x e r c is e of religion" as "an act or refusal to act that is substantially motivated b y sincere religious belief."3 0 In examining a putative religious belief under T R F R A , "it is not necessary to determine that the act or refusal to act is m o t iv a t e d by a central part or central requirement of the person's sincere r e lig io u s belief."3 1 "Not only is such a determination unnecessary, it is

im p o s s ib le for the judiciary."32 T h e district court found that A.A. and Arocha "have a sincerely held belief t h a t their hair should be worn long."3 3 The family contends that this finding r e c o g n iz e d a belief in wearing hair visibly long. The District agrees that A.A. h a s a sincere religious belief in leaving hair uncut, but argues that the evidence d e m o n s t r a t e s that there is no sincere belief in wearing hair visibly long, e s s e n t ia lly that the District can require him to wear his uncut hair in ways that

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TEX. CIV. PRAC. & REM. CODE § 110.001(a)(1). Id. Barr, 295 S.W.3d at 300.

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The family's expert, Dr. James Riding In, testified that Native Americans were historically forced to conceal their beliefs in order to protect themselves from persecution. In the late nineteenth and early twentieth centuries, the United States imposed assimilationist policies, which "sought to stamp out the traditional spirituality of the Indian people" and subjected Native American children to "forced haircuts." At the same time, federal regulations "criminalized Indian spirituality." Dr. Riding In testified that Arocha's experience is not uncommon; because of the attempts at forced assimilation, Native Americans are not always aware that they are even Native American, and many are only now attempting to reclaim their lost religion and culture. Like Arocha and A.A., other Native Americans attach religious significance to both wearing hair long and only cutting hair for certain reasons because "[t]hey feel long hair is an expression of their spirituality."

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No. 09-20091 b e s t conform his appearance to that of male students who cut their hair to meet d r e s s code requirements.3 4 We focus on A.A.'s putative religious belief in

w e a r in g his hair in a manner that does not conceal its expressive length. A s a starting point, the District concedes that some Native Americans k e e p their hair long and in braids as a tenet of their sincere religious beliefs.35 I t instead emphasizes the fact that other Native Americans fasten their long h a ir in buns or otherwise obscure their hair so that it is not visibly long. If those N a tiv e Americans can comply with their religious beliefs in that way, the D is t r ic t asserts that A.A. can, too. " T h e Fifth Circuit has had few occasions to conduct this part of the in q u ir y , as the sincerity of a religious belief is not often challenged." 3 6 When s in c e r it y is challenged, though, courts are reticent to draw the sort of line the

This has not always been the District's position. As Superintendent Rhodes explained at the second board meeting, he did "not believe" at the time "that the mere statement that `many Native Americans' subscribe to this belief is sufficient to merit an exemption for [A.A.]. Nowhere in the exemption does A.A. claim a certain tribal heritage, nor is it clear whether a particular or heritage subscribes to a religious belief centered around the cutting of one's hair." See Diaz v. Collins, 114 F.3d 69, 72 (5th Cir. 1997) (recognizing the "strong significance of long hair in Native American belief"); id. at 73 n.18 ("The record reveals that the Native America custom regarding long hair, while in some part cultural, has strong religious implications. Hair is only supposed to be cut as a sign of grieving for the recently dead, and shorn locks are often placed with the deceased so that they may be carried into the afterlife."); Teterud v. Burns, 522 F.2d 357, 360­61 (8th Cir. 1975) (Native American inmate's belief that hair should be kept long was sincerely held religious belief under First Amendment); Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist., 817 F. Supp. 1319, 1326 (E.D. Tex. 1993) (Native American students' belief that hair should be kept long was sincerely held religious belief under First Amendment); Gallahan v. Hollyfield, 516 F. Supp. 1004, 1006 (E.D. Va. 1981), aff'd, 670 F.2d 1345 (4th Cir. 1982) (Native American inmate's belief that hair should be kept long was sincerely held religious belief under First Amendment).
36 35

34

McAlister v. Livingston, 348 F. App'x 923, 935 (5th Cir. Oct. 6, 2009) (unpublished).

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No. 09-20091 D is t r ic t now requests. In Thomas v. Review Board of Indiana Employment S e c u r ity Division,3 7 Thomas, a Jehovah's Witness, had requested a layoff from h is manufacturing job and unemployment benefits after being transferred to a fo u n d r y that supplied military armaments because the work violated his r e lig io u s principles.3 8 The Indiana Supreme Court called the choice a "personal p h ilo s o p h ic a l" one, citing inconsistencies in the plaintiff's explanation of his b e lie fs , his practice of them, and the fact that other Jehovah's Witnesses testified t h a t working on armaments was "scripturally acceptable."3 9 The Supreme Court r e v e r s e d , explaining that when a plaintiff draws a line, "it is not for the Court t o say it is an unreasonable one."4 0 T h o m a s made plain that "the guarantee of free exercise is not limited to b e lie fs which are shared by all of the members of a religious sect."4 1 This insight r e c o g n iz e s that "[i]ntrafaith differences . . . are not uncommon among followers o f a particular creed," and that "the judicial process is singularly ill equipped to r e s o lv e such differences."4 2 The District's proffered anecdote--that other Native A m e r ic a n s do not do as A.A. does--is thus unpersuasive in our analysis, no m a t t e r how true. Sincere religious belief cannot be subjected to a judicial

s o r t in g of the heretical from the mainstream--certainly not in discharge of duty

37

450 U.S. 707 (1981). Id. at 710­11. Id. at 715. Id. Id. at 715­16. Id.

38

39

40

41

42

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No. 09-20091 t o faithfully apply protections demanded by law.4 3 Efforts to that end would put a t risk the protection that the First Amendment and TRFRA are meant to p r o v id e . Thomas does not, however, "relieve a complaining adherent of the burden o f demonstrating the honesty and accuracy of his contention that the religious p r a c t ic e at issue is important to the free exercise of his religion."4 4 On this score, t h e District argues that A.A. and his parents have put forth shifting e x p la n a t io n s of A.A.'s religious belief, first focusing on the cutting of hair and t h e n later on not concealing its expressive length. W e disagree. Despite the family's articulation of religious belief using d iffe r e n t words at different times, we must refuse to dissect religious tenets just " b e c a u s e the believer admits that he is `struggling' with his position or because h is beliefs are not articulated with the clarity and precision that a more s o p h is t ic a te d person might employ."4 5 In this case, focusing on evidence of a " s t r u g g le " and limiting A.A.'s religious belief to the cutting of hair would d is r e g a r d the salient thrust of the family's statements of belief from the very b e g in n in g and ignore the sequence of the District's suggestions to which they w e r e responding. The family's first three contacts with the District explained t h a t A.A. has "long hair" because of his Native American heritage, and one of t h e s e e-mails noted that his hair is kept "clean and neatly braided." The family h a s not limited themselves to that belief, but consistently maintained--as they e x p la in e d in their second appeal notice to the school board--that it is the belief

43

See id. at 716 ("Courts are not arbiters of scriptural interpretation."). Adkins, 393 F.3d at 570. Thomas, 450 U.S. at 715.

44

45

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No. 09-20091 in "long hair" as "an expression of [A.A.'s] ancestry and heritage" that matters.46 A .A . once refused to wear a Halloween costume because it would cover his b r a id s , and he and his father have both worn their hair in two braids outside t h e ir shirts at every meeting with school officials. While both the family's request for exemption and the District's r e q u ir e m e n t s can be seen as shifting over time, we see no calculated g a m e s m a n s h ip by either of them because "[n]ot surprisingly, the record . . . was n o t made with an eye to the microscopic examination often exercised in appellate j u d i c ia l review."4 7 An adherent's religious beliefs are not rendered insincere m e r e ly because he articulates them differently in response to shifting objections. An applicant seeking religious exemption is not obliged to provide an accounting o f his beliefs, warrant it as final, and then when subject to public disbelief, r e fr a in from speaking up to clarify to others who do not share his faith. In sum, w e do not look to efforts to better explain religious beliefs with exacting in c r e d u lit y , unless there is reason to do so. Nor do we see the District's shifts o v e r 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 s h a r p e n e d the intersection of regulation and belief. E v e n assuming that the difference between protected wearing of hair u n c u t and wearing it visibly long transcends the semantic, A.A. and his parents

The District urges that the family's counsel conceded at trial that any Free Exercise claim was limited to the cutting of hair. Whatever the meaning of the stray comment, it is plain from our reading of the record that counsel made no such concession. In fact, counsel for the family directly stated at trial that because the policy and exemptions would "hide the length of A.A.'s hair, which is a symbol of his religious beliefs . . . it is also violative of his freeexercise rights."
47

46

Thomas, 450 U.S. at 716.

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No. 09-20091 h a v e met their burden. On the facts of this case and in light of the longstanding ju d ic ia l shyness with line drawing, we decline to confine A.A.'s religious belief t o the cutting of hair but instead agree with the district court that he has d e m o n s t r a t e d a sincere religious belief in wearing his hair uncovered--visibly lo n g . T h e district court found that A.A. believes that his "hair should be worn lo n g ," and our use of the word "visibly" to describe A.A.'s belief is consistent with t h e fairest reading of that finding.4 8 The word "worn" is, after all, the past p a r tic ip le of "wear," which means "to bear or have on the person," to "exhibit," o r to "present."49 And concealing the long hair frustrates its expression.5 0

Contrary to the dissent's characterization, the district court repeatedly referred to a religious belief in wearing hair long. See, e.g., A.A., 2009 WL 6318214, at *8 ("The Court must therefore consider whether Plaintiffs have a sincerely held religious belief that hair should be worn long."); id. at *9 ("Plaintiff Arocha claims to follow the Native American religious practice of wearing his hair long except when mourning a loved one."); id. at *11 ("The Court therefore finds that Plaintiffs Arocha and A.A. have a sincerely held belief that their hair should be worn long."); id. at *12 ("The School Board's exemption policy burdens A.A.'s significantly held religious belief that his hair should be worn long."); id. at *13 ("Even though the School Board found it necessary to grant A.A. a religious exemption, it did not extend him this same freedom to wear his long hair in a comfortable, practical manner.").
49

48

MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 1338 (10th ed. 1996).

The district court recognized this expressive component when it stated that "[t]he policy"--referring specifically to the "tucked braid" exemption--"will deny A.A. the opportunity to express a religious practice that is very dear to him and his father." A.A., 2009 WL 6318214, at *12. In support of this statement, the district court cited a case rejecting a dress code exemption that required students to wear rosaries under their shirts because it burdened "a sincere expression of their religious beliefs." Id. (citing Chalifoux, 976 F. Supp. at 667) (internal quotation marks omitted); see Chalifoux, 976 F. Supp. at 670 (finding the students held a sincere religious belief in "wearing a rosary as a necklace"). The district court also noted, in considering whether A.A.'s religious belief was substantially burdened, that "[f]emale children attending [the school district] are allowed to wear their long hair exposed and in two braids, for purely secular reasons. Even though the School Board found it necessary to grant A.A. a religious exemption, it did not extend him this same freedom to wear his long hair in a comfortable, practical manner." A.A., 2009 WL 6318214, at *12 (emphasis added). Later the

50

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No. 09-20091 T h e district court had "no difficulty finding that some Native American c o m m u n it ie s assign religious significance in hair length," and that Arocha had s h o w n "that he himself has these `deeply held religious beliefs.'" Arocha had m a d e 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 `u lt im a t e ' concerns," but because "[h]e describes his hair as `an outward e x t e n s io n of who we are and where we come from, our ancestry and where we're g o in g in life.'"5 1 This echoes the district court's undisputed findings of fact, w h ic h we repeat once again: "[w]hen people ask A.A. why he has long hair, he t e lls 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 b o u g h t A.A. a wig as part of a Halloween costume, he refused to wear it because h e did not want to cover his braids";5 2 the family's written exemption request " s t a t e d that `A.A. has a sincerely held religious belief--as do many Native A m e r ic a n s -- t h a t his long hair is not only an expression of his ancestry and h e r it a g e , but also a sacred symbol of his life and experience in this world.'" 53

court explained again that--in contrast to A.A.--"female students are allowed to wear their long hair exposed and in two braids." Id. at *14.
51

Id. at *11.

The district court made each of these findings under the heading "I. Findings of Fact," "A. Plaintiffs' Religious Beliefs." Id. at *1­2. The district court made this finding under the heading "I. Findings of Fact," "B. Plaintiff A.A.'s Enrollment in Needville Independent School District." Id. at *4.
53

52

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No. 09-20091 A lt h o u g h Thomas may support the conclusion that the scope of A.A.'s s in c e r e religious belief includes its braiding, we need not decide that question as t h e District does not prohibit the braiding of his hair.5 4

V II H a v in g demonstrated a sincere belief in wearing visibly long hair, the fa m ily must also show that the District's policy and proffered exemptions will s u b s t a n t ia lly burden A.A.'s free exercise of that belief.5 5 Under TRFRA, a

b u r d e n is substantial if it is "real vs. merely perceived, and significant vs. t r iv ia l" -- t w o limitations that "leave a broad range of things covered." 5 6 The f o c u s of the inquiry is on "the degree to which a person's religious conduct is c u r t a ile d and the resulting impact on his religious expression," as "measured .

As we explain further below, the school has not seriously attempted to instruct whether A.A.'s long and visible hair must be braided, rather it instructs that it be in a bun or tucked inside his shirt if braided. To that end, the family urges we adopt for TRFRA the approach we follow in RLUIPA cases. We crafted our RLUIPA standard in Adkins v. Kaspar, a prisoner case in which we held that regulation creates a "substantial burden" if it "truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs." 393 F.3d at 570 (defining the term in the analog context of RLUIPA); see also Merced, 577 F.3d 578 (quoting the Adkins rule in the TRFRA context); Barr, 295 S.W.3d at 296 (endorsing the use of federal case law interpreting RLUIPA in TRFRA cases). Under Adkins, a regulation's effect is "substantial" when it either (1) influences the adherent to act in a way that violates his religious beliefs or (2) forces the adherent to choose between, on the one hand, enjoying some generally available, non-trivial benefit, and on the other hand, following his religious beliefs. Adkins, 393 F.3d at 570. Applying Adkins, the district court held that the District's policy burdens A.A.'s religious belief in wearing his hair long. Since the district court entered its order, however, the Texas Supreme Court in Barr declined to explicitly adopt the Adkins test in favor of its own, more skeletal framework, though it cited Adkins favorably. Barr, 295 S.W.3d at 301.
56 55

54

Barr, 295 S.W.3d at 301.

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No. 09-20091 . . from the person's perspective, not from the government's."5 7 This inquiry is " c a s e -b y -c a s e " and "fact-specific"5 8 and must take into account "individual c ir c u m s t a n c e s ." 5 9

A F r o m federal precedent, we know that "at a minimum, the government's b a n of conduct sincerely motivated by religious belief substantially burdens an a d h e r e n t 's free exercise of that religion."6 0 When conduct is subject to an

o u tr ig h t ban, "alternative accommodations do not alter `the fact that the rituals w h ic h [the adherent] claims are important to him--without apparent c o n t r a d ic t io n -- a r e now completely forbidden.'"6 1 This federal view matches B a r r 's instruction that "a burden on a person's religious exercise is not in s u b s ta n t ia l simply because he could always choose to do something else." 6 2 In t h a t case, the Texas Supreme Court had "no hesitation" in holding that p r o h ib it in g a pastor from operating his halfway house within city limits was a " s u b s t a n t ia l burden" on the pastor's free exercise of religion.6 3
57

Id. Merced, 577 F.3d at 588 (citing Barr, 295 S.W.3d 296, 301­02) (internal citations

58

omitted).
59

Barr, 296 S.W.3d at 308. Merced, 577 F.3d at 590 (examining Supreme Court cases).

60

Newby v. Quarterman, 325 F. App'x 345, 351 (5th Cir. Apr. 30, 2009) (unpublished) (quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 333 (5th Cir.2009)) (emphasis in Sossamon).
62

61

Barr, 295 S.W.3d at 302. Id.

63

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No. 09-20091 R e q u ir in g A.A. to cut his hair--a total ban of conduct--would also likely c o n s t it u t e a substantial burden.6 4 But that is not what the District's proposed e x e m p t io n s require so the bar is incomplete. Whereas forceably cutting his hair w o u ld limit his free exercise at all times, the exemptions permit the District to c o n t r o l A.A.'s hair only while he is at school. At home he may wear his hair h o w e v e r he likes. When a restriction is not completely prohibitive, Texas law still considers it substantial if "alternatives for the religious exercise are severely restricted." 6 5 T o g e t h e r with Barr's other prescriptions, that means a burden imposing a lesst h a n -c o m p le t e ban is nonetheless substantial if it curtails religious conduct and im p a c t s religious expression to a "significant" and "real" degree.6 6 Here, that s t a n d a r d is met.

B F ir s t , the burden on A.A. is significant. The exemptions place a direct b u r d e n on A.A.'s religious conduct and expression by, as the district court put it,

Under RFRA, we explained that a prison's grooming regulations "legitimately may be deemed to work" a substantial burden on a Native American's religious practice by preventing him from wearing long hair as required by his religion. Diaz, 114 F.3d at 72­73. We nonetheless upheld the regulations because they furthered a compelling state interest. Id. at 73. See also Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir. 2007) (finding a genuine issue of material fact as to the same "substantial burden" question under RLUIPA). The District distinguishes Diaz by noting that the policy on its face does not require that A.A. cut his hair, nor does the policy as modified by the exemption; instead, the policy as applied to A.A. requires that long hair be tied in a bun or placed in one braid and worn under a shirt. It is not clear from Diaz whether the prisoner was in jeopardy of a haircut or would have been allowed to keep his long hair but with other restrictions on how he could wear it.
65

64

Barr, 295 S.W.3d at 305; see also Merced, 577 F.3d at 590 (quoting id.). Barr, 295 S.W.3d at 301.

66

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No. 09-20091 " d e n y [in g ] A.A. the opportunity to express a religious practice that is very dear t o him and his father." While the District's policy and exemptions do not

c o m p le t e ly bar A.A.'s free exercise, the bar is complete in the sense that he c a n n o t wear his hair visibly long at all during the school day, a critical period of t im e in a young child's development.6 7 The stricture will define his days as a s t u d e n t . As other courts have recognized in analogous contexts, depriving c h ild r e n of religious exercise during the school day is a significant burden. In C h e e m a v. Thompson, a RFRA case, the Ninth Circuit found a substantial b u r d e n because a school regulation prevented Sikh children from bringing c e r e m o n ia l knives to school, despite the school's agreement to allow shorter k n iv e s riveted to their sheaths.6 8 Likewise, the Southern District of Texas, in C h a lifo u x v. New Caney Independent School District, found a sufficient burden t o support a free exercise claim when Catholic students were required to wear

In Diaz, we held that a Native American prisoner had failed to demonstrate that prison regulations preventing him from wearing a medicine pouch and headband for up to two hours a day worked a substantial burden because "[n]othing in the record" suggested that the prisoner's beliefs, "however fervently held, compel him to wear a medicine pouch or headband at all times[.]" 114 F.3d at 72. As this statement suggests, our focus in that RFRA case was twofold: first, we asked whether the beliefs "compel[led]" the prisoner's religious conduct and then we questioned whether the belief was a "central tenet." Id. The Texas Supreme Court has disavowed the former inquiry, Barr, 295 S.W.3d at 301, while TRFRA itself expressly forbids the latter. TEX. CIV. PRAC. & REM. CODE § 110.001(a)(1). And, while that is enough to distinguish that case from this one, there are of course factual differences, too: A.A. is a school child not an adult prisoner, the length of his deprivation is longer and at a more critical part of the day, and his religious belief is attached to his person, not an object. 67 F.3d 883, 885 (9th Cir. 1995) (unpublished) (holding that a school's ban on ceremonial knives worn by some Sikhs violated RFRA). Though agreeing on the issue of substantial burden, one judge dissented from the majority's holding that the school had failed to demonstrate a compelling interest. Id. at 889 (Wiggins, J., dissenting) (agreeing with the majority on the issue of substantial burden stating "[i]t is clear that the District's no-knives policy, even with the District's suggested compromises, substantially burdens free exercise of their religion").
68

67

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No. 09-20091 t h e ir rosaries under their shirts.6 9 In the present case, because the District's e x e m p t io n s directly regulate a part of A.A.'s body and not just a personal e ffe c t -- lik e a knife or a rosary--the burden on A.A.'s religious expression is a r g u a b ly even more intrusive. T h e exemptions would also indirectly burden A.A.'s religious conduct and e x p r e s s io n . If A.A. complies with either of them, he will stand out as someone s u b je c t to official stigma. If he does not, he will be exposed to punishment. The d is t r ic t court believed these "terms of existence" would force A.A. to choose b e tw e e n attending Needville public schools and following his religious beliefs.

C N o t only is the burden on A.A. significant, it is real. As the district court fo u n d , A.A. has already recognized that he has been treated differently because o f his hair. And, given that A.A. understands that his hair is part of the practice a n d expression of his Native American beliefs, the obvious lesson is that he is b e in g treated differently because of his religion. This recognition risks feelings o f 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 o f a bun, or escape his shirt. This threat is real.

976 F. Supp. 659, 671 (S.D. Tex. 1997) (relying on Yoder's "undue burden" formulation).

69

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No. 09-20091 V III " T o say that a person's right to free exercise has been burdened, of course, d o e s not mean that he has an absolute right to engage in the conduct."7 0 TRFRA p e r m it s the regulation of free exercise if the government can establish a c o m p e llin g interest that justifies the burden,7 1 and that it has adopted the least r e s t r ic t iv e means of achieving that interest.7 2 "Because religious exercise is a fu n d a m e n t a l right . . . justification can be found only in `interests of the highest o r d e r .'" 73 O n these counts, the District's amicus, the Texas Association of School B o a r d s Legal Assistance Fund takes the lead. The Fund argues that the

D is t r ic t 's grooming policy is supported by five goals: to teach hygiene, instill d is c ip lin e , prevent disruption, avoid safety hazards, and assert authority. The F u n d relies on a handful of Texas cases that find these interests sufficient to o v e r c o m e challenges to student and teacher dress codes. From this precedent, t h e Fund would extract a principle that "maintaining order in a school [is] a

Barr, 295 S.W.3d at 305 (quoting Smith, 494 U.S. at 894 (O'Connor, J., concurring in the judgment)) (internal quotation marks omitted).
71

70

Id. at 306.

TEX. CIV. PRAC. & REM. CODE § 110.003(a), (b); see also Boerne, 521 U.S. at 534 (RFRA). TRFRA does include an exception to its least restrictive means requirement, allowing a government agency to remedy a substantial burden on free exercise using "narrowly tailored" means to remove that burden. TEX. CIV. PRAC & REM. CODE § 110.003 (d)(2). The District contends that its proposed exemptions are two such "remedies" and thus the District need only demonstrate they are "narrowly tailored" to their interest. This argument is misplaced. Narrowly tailored means must in any event "cure[]" the substantial burden. Id. at § 110.003 (d)(3). As we have seen, the proposed exemptions are not remedies at all because they do not remove the substantial burden on A.A.'s free exercise. TRFRA's remedial exception does not apply to the District's half measures.
73

72

Barr, 295 S.W.3d at 306 (quoting Yoder, 406 U.S. at 215).

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No. 09-20091 c o m p e llin g state interest" that always justifies hair and clothing regulation no m a t t e r the constitutional interest. This principle is not the law. While the advanced scholastic concerns are no doubt legitimate,7 4 the F u n d 's argument suffers from two critical defects. Most important, none of the d e c is io n s on which the Fund relies considered a challenge to a school regulation t h a t merits strict scrutiny--as A.A.'s challenge under TRFRA plainly does. The F u n d identifies lawsuits asserting a student's interest in liberty under the due p r o c e s s clause of the Fourteenth Amendment;7 5 the right to be free from d is c r im in a t io n based on gender under federal law's Title VII,7 6 under the equal p r o t e c t io n clause of the Fourteenth Amendment,7 7 and under state-law equal p r o t e c t io n provisions;7 8 and the right to free expression under the First A m e n d m e n t .7 9 These challenges did not require the government to demonstrate a compelling interest as the District must do here. Rather, we upheld each of

We have held, for example, that "interests in the health, safety, and order of public schools are sufficient government interests" to justify inroads into a student's free expression right to choose his own clothing, Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 286 (5th Cir. 2001), and his own hairstyle, Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972). See Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982); Karr, 460 F.2d at 616; Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697, 703 (5th Cir. 1968); Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447, 449­51 (Tex. 1995).
76 75

74

See Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084 (5th Cir. 1975). See Karr, 460 F.2d at 616.

77

See Board of Trustees of Bastrop Indep. Sch. Dist., 958 S.W.2d 365, 368 (Tex. 1998) (construing "a statute that relates to, but stands independent of, the Equal Rights Amendment to the Texas Constitution"); Barber, 901 S.W.2d at 449­51 (rejecting a challenge under the Texas Constitution's Equal Rights Amendment).
79

78

See Karr, 460 F.2d at 614; Ferrell, 392 F.2d at 702; Barber, 901 S.W.2d at 449­51.

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No. 09-20091 t h e challenged regulations if they reflected a "rational determination," 8 0 or if t h e y were not "arbitrary" or "unreasonable."8 1 Such determinations answer q u e s t io n s far different than the one we examine today. The District cannot p a r la y what may qualify as sufficient to meet rational basis scrutiny into an in t e r e s t compelling enough to justify a substantial burden upon sincere religious e x e r c is e . After all, Texas applied the compelling interest standard to free

e x e r c is e claims--the "most demanding test known to constitutional law" 8 2 -- fo r a reason. Critically, TRFRA reaches behind Smith to a jurisprudence that did n o t allow a rule of general applicability to demand conformity of conduct e n jo y in g constitutional protection. N o r , as the Fund suggests, are we obliged to take a school's asserted i n t e r e s t s at face value without further examination. It is true that, because " [e ]d u c a t o r s have an essential role in regulating school affairs and establishing a p p r o p r ia te standards of conduct,"8 3 it is "[s]chool boards, not federal courts" who h a v e the "authority to decide what constitutes appropriate behavior and dress in public schools."8 4 But under TRFRA, when it is a student's free exercise of r e lig io n at stake, a school's invocation of general interests, standing alone, is not e n o u g h -- a showing must be made with respect to the "particular practice" at

80

See, e.g., Domico, 675 F.2d at 102­03. See, e.g., Ferrell, 392 F.2d at 702. Boerne, 521 U.S. at 534 (RFRA).

81

82

Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 441 (5th Cir. 2001) (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986)).
84

83

Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988)).

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No. 09-20091 is s u e .8 5 A court "must searchingly examine the interests that the State seeks to p r o m o t e . . . and the impediment to those objectives that would flow from r e c o g n iz in g the claimed . . . exemption."8 6 For government to prevail, then, it c a n n o t rely on "general platitudes," but "must show by specific evidence that [the a d h e r e n t 's ] religious practices jeopardize its stated interests." 8 7 In Barr, this m e t h o d of review meant a municipality's purported interest in "safety, p r e v e n t in g nuisance, and protecting children" could not justify its exclusion of t h e religious halfway house in the absence of evidence related to the religious m in is t r y and the house itself.88 H e r e , the District makes only cursory attempts to translate the abstract g o a ls of its grooming policy into an interest sufficiently compelling to justify r e q u ir in g a Native American kindergartner to confine his hair to a bun or to a b r a id tucked behind his shirt. In the words of Yoder, one of the two Supreme C o u r t decisions on which TRFRA's compelling interest test is based, the District h a s failed "to show with more particularity how its admittedly strong interest . . . would be adversely affected by granting an exemption" to A.A.8 9

Barr, 295 S.W.3d at 306 (quoting Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418, 439 (2006)).
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Yoder, 406 U.S. at 213, 221. Merced, 577 F.3d at 592 (citing Barr, 295 S.W.3d at 306­07). Barr, 295 S.W.3d at 307. Yoder, 406 U.S. at 236. See also O Centro, 546 U.S. at 431 (quoting id.).

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No. 09-20091 A W e 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" e x e m p t io n would foster hygiene as compared to two braids. S a fe t y concerns are insufficient, too. The hazard of long hair in an

e le m e n t a r y school setting does not rise to the level of, say, the danger posed by t h e wearing of insecurely fastened yarmulkes by Orthodox Jews during high s c h o o l basketball games, a situation examined by the Seventh Circuit nearly t h ir t y years ago.9 0 And, as Judge Posner found, even that danger was "not great" (t h o u g h "not wholly trivial either").9 1 Moreover, to say the District's safety c o n c e r n s are not compelling, we need not go so far as a divided Ninth Circuit p a n e l did in Cheema v. Thompson. There, the panel majority held under RFRA t h a t a school did not have a compelling interest in a wholesale ban on ceremonial k n iv e s worn by some Sikhs.9 2 The court remedied the violation by crafting an e x e m p t io n that allowed the knives in slightly modified form.9 3 To the extent A .A .'s long hair poses a cognizable safety concern, it is of course far from those a s s o c ia t e d with a knife of any size or shape. A n y 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 s c h o o l, there is no indication that these occasional cases of mistaken gender id e n tity were disruptive and certainly not such to constitute a compelling

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Menora v. Ill. High Sch. Assoc., 683 F.2d 1030, 1035 (7th Cir. 1982). Id. Cheema, 67 F.3d at 885. Id.

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No. 09-20091 in t e r e s t ; the confusion was easily resolved and the District did not even bother in fo r m in g his parents when a misunderstanding did arise. The district court did find that A.A.'s hair "sometimes falls in his eyes and h is teacher has to tell him to tuck it behind his ear," but explained that the t e a c h e r occasionally has to make the same suggestion to girls and A.A.'s p r e s e n c e has not interfered with the teacher's ability to teach. The District p r o v id e s no argument or evidence to the contrary. In fact, the District concedes that the lone religious exemption it has gran ted in the past--to a Muslim girl who wished to wear a

h e a d s c a r f-- p e r m it t e d the exempted student to look different than the other s t u d e n t s , posed no threat of disruption to the school, and did not give rise to any c o n c e r n that the student would be bullied or teased. The most the District can m u s t e r in this space, then, is that a bun or a tuck will present about the same p o t e n t ia l for disruption as allowing A.A. to wear long hair in other ways.

B W e are left then with the District's stated interests in instilling discipline a n d asserting authority. To this list, Superintendent Rhodes would add one last c o n c e r n , explaining that in crafting the "tucked braid" exemption, he did not n e c e s s a r ily seek to effect the goals of the grooming policy at all, but to "try to h a v e [A.A.'s] hair resemble the rest of the student body in Needville." Under the compelling interest test, the District's support for these c o n c e r n s quickly dissolves. For one, the District has failed to put forth a single c a s e in which a school's interests in discipline, authority, and uniformity have p r o v e d enough when subject to strict scrutiny. Yes, courts, including the

S u p r e m e Court, have found similar interests sufficient--under varying levels of 32

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No. 09-20091 s c r u t in y -- t o override an adherent's right to a religiously informed appearance in different circumstances. But, when applying a compelling interest standard, " [c ]o n t e x t matters." 94 C o n t e x t matters, for example, when members of the military ask the federal government to accommodate their religious practices. In Goldman v. W e in b e r g e r , a divided Supreme Court rejected an Or