Gonzales et al v. Mathis Independent School District

Filing 25

ORDER Granting in part and Denying in part 20 Motion for Summary Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
BELEN GONZALES, et al,
Plaintiffs,
VS.
MATHIS INDEPENDENT SCHOOL
DISTRICT,
Defendant.

December 27, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:18-CV-43
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ORDER ON MOTION FOR SUMMARY JUDGMENT
Plaintiffs, B.G. and P.G. (Parents), Individually and on behalf of their minor
children, C.G. and D.G. (Children), filed this action against Mathis Independent School
District (MISD), alleging violations of their religious and constitutional rights by banning
C.G. and D.G. from participation in MISD’s extra-curricular activities. D.E. 1-3, 8.
Before the Court is MISD’s Motion for Summary Judgment (D.E. 20), together with
Plaintiffs’ response (D.E. 21, 22) and MISD’s reply (D.E. 24). For the reasons set out
below, the motion for summary judgment is GRANTED IN PART and DENIED IN
PART.
STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must examine “whether the evidence presents a sufficient disagreement to
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require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251–52. In making this determination, the Court must consider the
record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on
file, and drawing all justifiable inferences in favor of the party opposing the motion.
Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002).
The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.
Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e); see also
Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per
curiam) (refusing to consider affidavits that relied on hearsay statements); Martin v. John
W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that
courts cannot consider hearsay evidence in affidavits and depositions). Unauthenticated
and unverified documents do not constitute proper summary judgment evidence. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam).
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party demonstrates an absence of evidence supporting the nonmoving party's case, then
the burden shifts to the nonmoving party to come forward with specific facts showing
that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S.
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at 248. “After the nonmovant has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant, summary judgment will be
granted.” Caboni, 278 F.3d at 451.
The evidence must be evaluated under the summary judgment standard to
determine whether the moving party has shown the absence of a genuine issue of material
fact. “[T]he substantive law will identify which facts are material. Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
FACTS
Parents are Hispanic and practice the Roman Catholic religion. As an expression
or exercise of their faith and heritage, and in a promise (promesa) to God, Parents have
kept a strand of hair on the back of the Children’s heads uncut since birth. More recently,
the Children have adopted that promise as their own affirmation of faith and heritage and
continue to maintain the single long braid down their backs. However, Parents admit that
the promise is not dictated by the Catholic religion and they could change it at any time.
D.E. 22, pp. 25-26, 54.
C.G. testified that his parents made the promise because when he was younger, he
was sick and they made the promise to keep him safe and out of harm’s way. After the
promise, his health improved. Now, he considers the promise to be his to keep as well as
theirs and if he cut the hair, he would disappoint Jesus or get punished. D.E. 22, p. 34.
But if his parents took back the promise, he would cut his hair and play football. D.E. 22,
p. 35. D.G. testified that his braid represents his faith to God. D.E. 22, p. 43. It started
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out as his parents’ promise but it became his, as well, at the beginning of his sixth grade
year. D.E. 22, p. 47. Breaking the promise would be a sin. D.E. 22, pp. 61, 82.
C.G. admitted that neither his father nor his priest wear a braid and that he does
not consider it to be an expression of his Hispanic heritage. D.E. 20-1, pp. 29-30. P.G.
acknowledged that you cannot tell whether someone is Catholic because he has a braid.
D.E. 20-1, p. 72. And a promesa is not so much a Catholic decision, but a personal
decision. D.E. 20-1, p. 74.
Parents have repeatedly documented the uncut hair as a religious practice as the
Children have advanced through MISD’s schools. Until 2017, MISD granted Plaintiffs a
religious exemption from the school dress code and its hair grooming policy to
accommodate the promesa and the associated braids. MISD thus permitted the Children
to fully participate in educational and extra-curricular activities. More recently, however,
MISD notified Plaintiffs that the Children would not be permitted to participate in any
extra-curricular or UIL (University Interscholastic League) activities unless they
complied with the hair grooming policy, prompting this legal action.
According to the Grooming and Dress provision of the MISD 2017-2018 Extra
Curricular Handbook,
Students will follow the dress code that is in the student
handbook. In addition, students will be required to follow the
sponsor/coaches’ rules that may be stricter than those stated
in the handbook. Your appearance should at all times reflect
class and pride in yourself and in our extra-curricular
programs.

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D.E. 10, p. 13. According to the Student Handbook, all males must cut their hair so as
not to touch the eyebrows in front or extend beyond the top of the collar of a standard
shirt in back and may not exceed the top of the ear on the sides. The hair may not be
pinned, curled, or gelled up to avoid the rule. D.E. 1-3, p. 12.
According to the summary judgment briefing, it appears that MISD is currently
allowing the Children to participate in Student Council, Art Club, and a Video Game and
Programming Club. D.E. 20-1, p. 44. They are also permitted to practice with the
football team. In fact, MISD now states that the Children will only be excluded from
UIL activities. See D.E. 20-1, p. 46, 48, 71. That meant that D.G. was taken off the
seventh grade UIL Science Team for his school. D.E. 22, p. 48. It remains unclear why
D.G. was denied participation in at least one field trip for Student Council and C.G. was
not allowed to participate in a school band concert, which affected his academic grade.
D.E. 22, pp. 46, 79.
To justify its application of the grooming policy, MISD states, “When we send our
students out and represent Mathis ISD we hold our students to a higher level of what we
expect from them.” D.E. 20-1, p. 7 (Angie Trejo). The basis for the policy is a general
understanding of community standards.

D.E. 20-1, p. 14 (Superintendent Benny

Hernandez); see also D.E. 20-1, p. 84 (Ricardo Cortez, Jr.).

More specifically,

Superintendent Hernandez testified that if a girl wanted to play football, she could do so
and would not be required to cut her hair because the grooming policy is a community
standard and it treats boys and girls differently, without reference to the activities
involved. D.E. 22, p. 13.
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The policy is only about appearances in representing the school, rather than
incorporating any safety concerns or UIL policies. D.E. 22, p. 14-15. And the Parents
acknowledge that the grooming rules are religion-neutral. As former MISD students,
themselves, they agreed that the grooming policy has been the same for decades and that
they were aware of it when they made the promesa. D.E. 20-1, pp. 18-19, 60-61.
DISCUSSION
A. Free Exercise of Religion
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof.” U.S. Const. amend. I.
It is undisputed that pursuant to the Fourteenth Amendment, the prohibition extends to
rules imposed by state-authorized actors, such as public school districts. U.S. Const.,
amend. XIV. A rule violates the Free Exercise Clause when it unduly burdens a person’s
adherence to a sincerely held religious belief. Lyng v. Nw. Indian Cemetery Protective
Ass'n, 485 U.S. 439, 447 (1988).
Where the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith, or where it
denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a
burden upon religion exists. While the compulsion may be
indirect, the infringement upon free exercise is nonetheless
substantial.
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981).
In 1990, the Supreme Court clarified its approach to First Amendment Free
Exercise cases and eliminated the requirement that state action must be the least
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restrictive means of achieving a compelling state interest. Emp’t Div., Dep't of Human
Res. of Or. v. Smith, 494 U.S. 872, 878–79 (1990). Instead, “[t]he government does not
impermissibly regulate religious belief . . . when it promulgates a neutral, generally
applicable law or rule that happens to result in an incidental burden on the free exercise
of a particular religious practice or belief.”

Cornerstone Christian Sch. v. Univ.

Interscholastic League, 563 F.3d 127, 135 (5th Cir. 2009) (citing Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) and Emp’t Div., Dep't of
Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990)). The Smith opinion has been
described as eliminating the strict scrutiny standard of review in free exercise cases. See
generally, Fairbanks v. Brackettville Bd. of Educ., 218 F.3d 743 (5th Cir. 2000).
Thus, to prevail on their claim for violation of the Free Exercise Clause of the First
Amendment, Plaintiffs must show that they have a sincerely held religious belief that is
burdened by a rule that is either non-neutral or outside the regulatory power of MISD.
According to MISD, the claim fails because a promesa is too individual and too mutable
to constitute a religious belief and the denial of UIL participation is not a cognizable
burden on any such rights. Instead, the grooming policy is a neutral, generally applicable
rule that does not infringe on religious freedoms.
Sincerely Held Religious Belief.

MISD contends that a promesa is neither

sincere nor religious because Plaintiffs testified that the promise could be changed at their
discretion and allowing the Children’s hair to grow is not an established tenet of their
Catholic faith. As a matter of law, MISD is not permitted to challenge whether Plaintiffs’
practice is an approved feature of an established religion. United States v. Ballard, 322
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U.S. 78, 86-87 (1944) (“They may not be put to the proof of their religious doctrines or
beliefs.”). “It is not within the judicial ken to question the centrality of particular beliefs
or practices to a faith, or the validity of particular litigants' interpretations of those
creeds.” Hernandez v. Comm'r, 490 U.S. 680, 699 (1989). It is enough that Plaintiffs
treat the promesa as a promise to God that if broken would be a sin, would disappoint
Jesus, and would result in divine punishment.
The sincerity with which Plaintiffs hold their religious beliefs is, in contrast, a fact
question. Frazee v. Ill. Dep't of Emp’t Sec., 489 U.S. 829, 833 (1989); Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 138 n.2 (1987). However, there
is sufficient evidence of record to establish a disputed issue of material fact that Plaintiffs
hold their promesa as a sincere belief. They have been unwavering in the promise since
the Children’s respective births. The Parents have taught the Children the importance of
keeping their solemn vows with the promesa as an important life lesson. While they have
admitted that the promise could be abandoned or changed, they also testified that doing
so would constitute a sin and have religious consequences.
By granting the religious exemption to Plaintiffs for many years, based upon their
claim that they made a sacred promesa not to cut the Children’s hair, MISD
acknowledged the sincerely held religious belief. MISD has not defeated Plaintiffs’
claim to the extent that it is based upon a sincerely held religious belief.
Undue Burden. MISD claims that it defeats Plaintiffs’ claim under the Smith test
because its dress code, with its hair grooming policy, is within its general jurisdiction to
regulate its school image and is applied neutrally to all students. Plaintiffs do not dispute
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this. There is no evidence that the policy singles out or targets Plaintiffs’ or anyone
else’s religious beliefs. And the policy went into effect long before Plaintiffs first made a
promesa. Thus the incidental burden that the hair grooming policy places on Plaintiffs’
right to the free exercise of religion is insufficient to support their First Amendment Free
Exercise claim. Smith, 494 U.S. at 878–79.
Conclusion. As a matter of law, Plaintiffs cannot prevail on their claim that
MISD violated their rights under the First Amendment’s Free Exercise Clause because
the policy is within its purview and is applied neutrally. The Court GRANTS the motion
for summary judgment (D.E. 20) to the extent that it challenges this claim.
B. TRFRA (Texas Religious Freedom Restoration Act)
The State of Texas is one of many jurisdictions that enacted legislation in the form
of a religious freedom restoration act to restore the strict scrutiny test to statutory free
exercise cases, effectively abrogating Smith on the state level. Tex. Civ. Prac. & Rem.
Code Ann. § 110.003; Barr v. City of Sinton, 295 S.W.3d 287, 296 (Tex. 2009) (outlining
the history of constitutional Free Exercise jurisprudence and the impetus behind the
TRFRA). The factors involved in proving a claim under the TRFRA are: “(1) whether
the government's regulations burden the plaintiff's free exercise of religion; (2) whether
the burden is substantial; (3) whether the regulations further a compelling governmental
interest; and (4) whether the regulations are the least restrictive means of furthering that
interest.” Merced v. Kasson, 577 F.3d 578, 588 (5th Cir. 2009) (citing Barr, 295 S.W.3d
at 299).

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Free Exercise of Religion. The first factor incorporates the same analysis that
pertains to a claim under the Free Exercise Clause of the United States Constitution.
According to the definition section of the TRFRA:
“Free exercise of religion” means an act or refusal to act that
is substantially motivated by sincere religious belief. In
determining whether an act or refusal to act is substantially
motivated by sincere religious belief under this chapter, it is
not necessary to determine that the act or refusal to act is
motivated by a central part or central requirement of the
person's sincere religious belief.
Tex. Civ. Prac. & Rem. Code § 110.001(a)(1) (emphasis added). As with constitutional
free exercise cases, in TRFRA cases, “courts must not presume to determine the place of
a particular belief in a religion or the plausibility of a religious claim.” Barr, 295 S.W.3d
at 300 (citing Smith, 494 U.S. at 886-87).
MISD’s hair grooming policy would require the Children to cut their hair, which
they have worn uncut as a promesa, a religious promise. For the same reasons set out
above, the Court finds that the policy affects Plaintiffs’ free exercise of religion.
Substantial Burden. There are two basic components to finding a burden to be
substantial: (1) real, as opposed to merely perceived; and (2) significant, as opposed to
trivial. Barr, 295 S.W.3d at 301. The Barr opinion notes that some courts have made a
distinction between a burden on a person’s beliefs as opposed to a burden on his conduct.
Id. This perspective tends to place the court in the position of crossing the line into
determining the importance of particular conduct to the central tenets of the religion. To
avoid that conundrum, Barr instructs courts to measure “the degree to which a person’s
religious conduct is curtailed and the resulting impact on his religious expression.” Id.
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That measurement is taken from the person’s perspective, not the government’s. Id. And
it is a fact-specific inquiry. Id. at 302.
MISD’s hair grooming policy requires cutting the Children’s hair. This would
fully eliminate their religious effort of maintaining a promesa, now 14 years strong. See
A.A. ex rel. Betenbaugh v. Needville Indep. Sch., 611 F.3d 248, 264 (5th Cir. 2010)
(writing, “Requiring A.A. to cut his hair—a total ban of conduct—would also likely
constitute a substantial burden,” but noting that the policy in that case allowed for
alternative styling of the hair to conceal its length). From Plaintiffs’ perspective, it is no
comfort that hair can grow back or that they could shift their devotion to some other
expression. The damage will have been done. The promise will have been broken.
While their promesa is only one expression of their religious beliefs, it is an important
one for their entire family. That burden is real and significant; it is thus substantial.
MISD argues that there is no cognizable burden to Plaintiffs because this case is
really only about UIL participation. And it cites a number of cases that hold that UIL
participation is not a benefit of constitutional magnitude. First, this argument misplaces
the focus, concentrating on the value of the widely available state benefit that is withheld
rather than on the price MISD seeks to exact in exchange for conferring that benefit—a
burden to the fundamental right of the free exercise of religion. Second, none of the UIL
cases that MISD cites are TRFRA cases; they are easily distinguished. Third, the record
is unclear that UIL participation is the only activity Plaintiffs stand to lose. The first
issue has already been addressed in this section. The Court now turns to the second and
third.
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The UIL cases are distinguishable. Chronologically first, and the only case MISD
cites that addresses any religious exercise issue, is Walsh v. La. High Sch. Athletic Ass'n,
616 F.2d 152, 158 (5th Cir. 1980). Walsh did not involve the UIL, but a similarly
constituted voluntary association of public, private, and parochial high schools regulating
interscholastic athletic competitions in the State of Louisiana. At issue was the transfer
rule, which prevented the student’s participation in league athletics for one year after the
student transfers out of his home district.
Walsh’s parents left their home district and enrolled the student in a Lutheran
school. When the association’s rule required the student to sit out of athletics for a year,
they sued the association. The court wrote:
The encroachment of the transfer rule on the free exercise of
religion is both limited in scope and insignificant in
magnitude. The transfer rule does not deny these parents or
their children the right to actively practice the Lutheran faith.
Similarly, it neither prohibits a parent from enrolling his child
in Lutheran High School nor interferes with the ability of
such a child to obtain the religious education provided by that
school. The rule merely prevents a child from participating in
interscholastic athletic competition during his ninth grade
year.
Id. at 158. However, the Walsh opinion notes that it is factually significant that the
student was not prohibited from participating in all athletic activities. He could still
participate in intramural athletic competition and practice with the Lutheran High School
varsity athletic teams. And the limit on league competition was for only one year. No
other school-related activities, such as field trips and concerts, were affected.

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Moreover, the Walsh opinion balanced the transfer rule against the compelling
interest and least restrictive means factors:
Although the de minimis nature of the burden placed on the
plaintiffs' free exercise of religion is sufficient to reject
plaintiffs' first amendment challenge to the LHSAA transfer
rule, . . . we further find the application of the transfer rule,
together with its incidental burden on the free exercise of
religion, is constitutionally justified by the magnitude of the
state's interest in the regulation and the lack of an equally
effective and workable alternative.
Id. The opinion’s qualifications (limited scope of deprivations and compelling state
interest) are caveats that give the Court pause.
MISD’s later cases do not eliminate these concerns. In fact, most address the
inapposite scenario of due process or equal protection challenges to UIL eligibility rules
or decisions. They find no property interest to support the due process claims and they
find no issue of fundamental rights or suspect class, leading to the application of only a
rational basis standard. See Kite v. Marshall, 661 F.2d 1027, 1029 (5th Cir. 1981)
(finding it sufficient that UIL athletic eligibility rules promote fairness and competition
when prohibiting students who participate in summer camps).1 As noted above, the
TRFRA reinstated the strict scrutiny standard. And fundamental religious freedom is
involved here.

1

See also Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 850 (2002)
(applying rational relation test with respect to Fourth Amendment and privacy rights challenges to suspicionless
drug testing as a condition for participation in athletics); Nevares v. San Marcos Consol. Indep. Sch. Dist., 111 F.3d
25, 27 (5th Cir. 1997) (disciplinary transfer to alternative school that did not offer athletics was appropriate response
to compelling safety concerns and student had no property interest in athletics as opposed to education); Hardy v.
Univ. Interscholastic League, 759 F.2d 1233, 1234–35 (5th Cir. 1985) (UIL transfer rules); Niles v. Univ.
Interscholastic League, 715 F.2d 1027, 1031 (5th Cir. 1983) (UIL transfer rules); Eanes Indep. Sch. Dist. v. Logue,
712 S.W.2d 741, 742 (Tex. 1986) (UIL playoff decision based on rule related to weather or other impediment to
playing game).

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The scope of the deprivations in this case is unclear. MISD has briefed the case as
if its only restriction is on UIL competitive events. However, Plaintiffs have produced
uncontroverted evidence that, in the past, MISD has applied its grooming policy to
exclude the Children from non-UIL events, such as a field trip and a class concert—thus
expanding the burden beyond the Walsh scope.

And the UIL deprivation here is

permanent, rather than for only one year. The Court cannot resolve, on this record,
whether the scope of the deprivations is, in practice, limited to UIL activities as MISD
states.
Compelling State Interest. When the religious burden is substantial and there is
some basis for treating the state deprivation as relatively light, the remaining factors take
on greater significance: whether the policy addresses a compelling state interest and
whether it is the least restrictive means for doing so. While the burden of proof is on
MISD, its briefing is silent on these issues. See Barr, 295 S.W.3d at 307-08. Assuming
that it had defeated Plaintiffs’ TRFRA claim on the “substantial burden” factor, it did not
address its own alleged interests in imposing its grooming rule.
While the elements of a TRFRA claim are set out in a list of four items, courts are
to balance them together any time the burden to religious practices is real and significant.
See generally, Barr, 295 S.W.3d at 306; Merced, 577 F.3d at 592. Just as MISD attempts
to diminish Plaintiffs’ interest by arguing that it is only UIL participation of negligible
value that is at issue here, it defeats its own claim to a compelling state interest. In other
words, if UIL participation is so inconsequential, one can ask why MISD persists in

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enforcing its highest level of grooming (at the expense of Plaintiffs’ fundamental
religious rights) as a condition for participation.
The only argument that seeps through from MISD’s briefing of the other claims is
that the grooming policy represents the district’s community values that boys and girls
should sport gender-appropriate appearances.

As the Fifth Circuit wrote in A.A.,

“Superintendent Rhodes’s concern for aesthetic homogeneity . . . is insufficiently
compelling to overtake the sincere exercise of religious belief.” A.A., 611 F.3d at 271.
And while the grooming policy has been in place for decades, one might conclude just as
easily that it is antiquated as that it is time-honored.
Least Restrictive Means. Without more, the Court is hard-pressed to evaluate
MISD’s goals and means as appropriately justifying the burden (as it ultimately may be
defined). MISD did not challenge the claim on the basis that the policy reflects the least
restrictive means for advancing community values. Plaintiffs have thus been prevented
from arguing that MISD’s policy either ignored alternatives or banned them (prohibiting
pinning, curling, or gelling). It is not enough that MISD has accommodated Plaintiffs’
promesa by extending an exemption to other activities. The question before the Court is
whether there are alternative means that can effectively accommodate MISD’s goals.
Conclusion. MISD has not satisfied its burden of demonstrating, as a matter of
law, that Plaintiffs cannot prevail on one or more elements of their TRFRA claim. The
Court DENIES the motion for summary judgment (D.E. 20) to the extent that it
challenges this claim.

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C. Freedom of Expression
The general right to freedom of expression applies to conduct revealing an intent
to convey a particularized message, and the likelihood that the message would be
understood by those exposed to it. Texas v. Johnson, 491 U.S. 397, 404 (1989); Canady
v. Bossier Par. Sch. Bd., 240 F.3d 437, 440 (5th Cir. 2001). Visibly wearing one’s hair in
a particular manner is capable of communicating one’s religion or heritage. See, A.A. ex
rel. Betenbaugh, 701 F. Supp. 2d at 882 (S.D. Tex. 2009), aff’d, 611 F.3d 248, 264 (5th
Cir. 2010) (addressing Native American braids and basing the decision on statutory
protections for religious freedom rather than on constitutional grounds).

MISD

challenges Plaintiffs’ claim on both ends of the claim of expression: (1) that the uncut
hair communicates Plaintiffs’ religious faith or Hispanic heritage; and (2) that others who
see the uncut hair understand it as an expression of such.
Sending.

As is apparent from the foregoing discussion, there is certainly a

disputed issue of material fact that Plaintiffs intend the braids to communicate their faith
and heritage. Thus the Court rejects MISD’s first challenge to the claim of a violation of
the freedom of expression.
Receiving. It is much less clear, however, that either message (faith or heritage) is
received by the general public or any part thereof. Plaintiffs’ argument that people
understand their message is effectively unsupported. Some statements in the briefing that
assert receipt of the message are not followed by any factual or legal citation. Those that
carry a legal citation do not direct the Court to any case that applies to this message,

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which is distinguishable from that of Native Americans, for example.2 The fact that a
hairstyle can convey a message is not enough to show that this particular hairstyle
conveys the particular religious or ethnic message Plaintiffs seek to send.
Plaintiffs’ few citations to record evidence point to discussions that do not involve
anyone understanding Plaintiffs’ promesa. Instead, they address the reason for their
practice and obliquely support what message they might want to send. But they do not
address whether their particularized message is actually received.
Conclusion. MISD has challenged Plaintiffs’ freedom of expression claim on the
basis that others do not perceive the Children’s uncut hair as sending a particular
message. Because this is a fact question and Plaintiffs have produced no evidence to
raise a disputed issue of material fact in that regard, the Court GRANTS the motion to
dismiss (D.E. 20) to the extent that it challenges the claim based on Plaintiffs’ right to
freedom of expression.
D. Due Process Liberty Interest in Parenting Children
Under the Due Process Clause of the Fourteenth Amendment, parents have a
fundamental right to make decisions concerning the care, custody, and control of their
children. Troxel v. Granville, 530 U.S. 57, 66 (2000) (collecting cases). This includes
teaching moral standards, religious beliefs, and good citizenship. Bellotti v. Baird, 443
U.S. 622, 637-38 (1979). “[T]he values of parental direction of the religious upbringing

2

Johnson, 491 U.S. at 399 (expression was flag-burning); Canady, 240 F.3d at 438 (mandatory school uniforms
and non-specific challenge to communicative and symbolic use of clothing); A.A. ex rel. Betenbaugh, 701 F. Supp.
2d at 883 (use of hair to express particularized Native American religious and ethnic meaning).

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and education of their children in their early and formative years have a high place in our
society.” Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972).
MISD challenges Plaintiffs’ substantive due process claims solely by analogizing
this case to Kite, 661 F.2d at 1027. In Kite, the Fifth Circuit held that the right at issue—
to attend a summer athletic camp—was not a fundamental right.

If there is no

fundamental constitutional right at stake, then the state action need only satisfy the
rational relationship test. Id. Consequently, fairness and competition—rational bases for
visiting adverse consequences on those who attended expensive camps to get an unfair
advantage—could justify the UIL rule.
The analogy to this case does not hold. Here, the parental childrearing right is a
fundamental right. See, Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510, 535 (1925). And the specific childrearing issue here pertains to the
exercise of religion, which itself is a fundamental right. Cantwell v. State of Conn., 310
U.S. 296, 303 (1940). MISD did not brief the test to be applied, much less demonstrate
that MISD satisfied the test or, if the burden lies on Plaintiffs, that Plaintiffs are unable to
satisfy it.
Conclusion. MISD has not satisfied its summary judgment burden of proof to
demonstrate that it is entitled to judgment as a matter of law on Plaintiffs’ claims for
violation of their substantive due process right to guide the religious and moral training of
their children. The Court DENIES the motion for summary judgment (D.E. 20) to the
extent that it challenges this theory.

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DECISION
For the reasons set out above, MISD’s motion for summary judgment (D.E. 20) is
GRANTED IN PART and DENIED IN PART. Plaintiffs’ claims for violation of their
First Amendment right to the free exercise of religion and freedom of expression are
DISMISSED. This case may proceed on Plaintiffs’ claims for violation of the TRFRA
and their childrearing rights under the Fourteenth Amendment substantive due process
provision.
ORDERED this 27th day of December, 2018.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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