What would Vince Lombardi think?

I expect you have noticed how much hair is hanging out from football helmets these days.  I’m not sure what brave gridiron great first crossed this line, but I’m sure that the late great Vince Lombardi would not approve.  Dreads, ponytails and mullets are visible all over the place. What ever happened to Johnny Unitas?  Where are the crew cuts????

Coach Lombardi would be very pleased with Mathis ISD, where the extracurricular dress code requires that boys’ hair must not touch the collar. And you can’t pin, curl or gel it to get around this rule. 

This presented a problem to Mr. and Mrs. Gonzales, whose sons wanted to play football.  The boys were out of compliance with the dress code, but the parents thought they should be exempted from the code.  Here’s how the court explains the situation:

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 [two of them] have adopted that promise as their own affirmation of faith and heritage and continue to maintain the single long braid down their backs.

Many of you readers have heard me tell tales of my 13 years in Catholic school. I’m quite familiar with the teachings, practices and customs of that group, and I had never bumped into this. I can’t recall ever seeing a priest with such a braid. The Catechism says nothing about this.

These parents acknowledged that. They made no claim that this was something their religion required. Nor did they argue that it was representative of Hispanic heritage. They freely stated that this was simply a personal commitment they had made. They could change it at any time. They could choose some other means of symbolizing their commitment to God. But this was the promise they made to God and they took it very seriously.

So did the boys.  One of them testified that “if he cut the hair, he would disappoint Jesus or get punished.” 

Hmmm.  Everybody is in favor of equal application of the dress code, but nobody wants to disappoint Jesus. So this makes for an interesting case! 

The court ruled against the parents on their First Amendment claim, but in favor of them on a claim under state law. Let me explain.

The first claim was that the school’s rule infringed on the free exercise of religion in violation of the First Amendment.  To prove this, the parents would have to show that their SINCERELY held RELIGIOUS belief was UNDULY burdened by the dress code.    The court addressed each of those three requirements: sincerity, religion, and undue burden. 

As to religion, the court noted that it would be improper for the school to question whether or not the parents’ belief was “religious.” Key Quotes:

As a matter of law, MISD is not permitted to challenge whether Plaintiffs’ practice is an approved feature of an established religion.

It is enough that Plantiffs treat the promesa as a promise to God that if broken would be a sin, would disappoint Jesus, and would result in divine punishment.

On the other hand, the court said that it would be acceptable to challenge the sincerity of the belief.  At this stage of the litigation, however, the court held that there was plenty of evidence of parental sincerity, including the fact that the school had granted a religious exemption from its general dress code for several years.

Nevertheless, the First Amendment claim was denied because the court held that the burden on the parents was only “incidental.”  The dress code was a neutral rule—it targeted no individual or group, but applied to everyone—and it imposed only an “incidental” burden on religion. 

The parents had more success under state law—The Texas Religious Freedom Restoration Act (TRFRA).  In a nutshell, the TRFRA imposes a higher standard on governmental entities than does the First Amendment.  Neutral rules that “incidentally” burden religious practices may pass muster under the First Amendment, but they just might fail the TRFRA test. That’s exactly what happened here. 

TRFRA allows for a “substantial” burden on religion only when necessary to further a compelling governmental interest and when it does so in the least restrictive way.  Was this a “substantial” burden? The court said yes:

That measurement is taken from the person’s perspective, not the government’s. And it is a fact-specific inquiry.

Here’s how the courts viewed these facts:

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….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. 

The school district cited all of the cases that deal with extracurricular activities and establish that a student has no protected legal right to participate.  Those were the cases our Daily Dawg mentioned in yesterday’s post.  But here, the court distinguished all those cases—none of them addressed a substantial burden on religion like this case does.

This one’s not over but the parents have succeeded in defeating—for now—the Motion to Dismiss. The court did not say that the district violated TRFRA.  It said that the district did not show that the parents can’t win on that theory.  So the case goes on.  The hair grows, the promesa remains intact and the case goes on.

We found the case of Gonzales v. Mathis ISD at 2018 WL 6804595.  It was decided by the federal court for the Southern District of Texas on December 27, 2018. 


Tomorrow: taking a grievance to T.E.A. is more complicated than you might think.