You have to tell the school you intend to file suit….


When court cases involve long hair, football, and promises to God, how can the court avoid all of those juicy issues and go off on some boring procedural tangent?  Sigh.  Disappointing, but that’s what we have in Gonzales v. Mathis ISD. 

The parents made a promise to God that they would leave a lock of hair on each of their two sons uncut.  This promise was in exchange for God’s protection and care when one of the boys had a potentially life-threatening illness. God came through on this one, and so the parents and their sons took the “promesa” very seriously. It was a sincere religious commitment.  However, the long hair violated the school dress code for extracurricular participation, and so the school barred the boys from participating.

The parents filed suit alleging that the district had violated the Texas Religious Freedom Restoration Act (TRFRA).  The district court held that the parents were likely to prevail on this case and so it issued an injunction allowing the boys to play football and participate in other UIL sanctioned activities while the suit was pending.  The district appealed to the 5th Circuit and that’s where the procedural issues came to the fore. 

It turns out that you can’t just waltz on down to the courthouse and file suit under TRFRA.  You have to give the school a “heads up”--notice 60 days in advance.  That provision is designed to give the governmental agency some time to address the concern and avoid litigation.  There is an exception: if the government is about to take “imminent” action that “threatens to substantially burden the person’s free exercise of religion” and the person was not informed of this, or otherwise knew about it, in time to provide the notice.

In December of 2017 the district informed the family that both boys were barred from all extracurricular activities, effective immediately.  The parents promptly filed suit without giving the 60-day notice.  However, the suit was originally filed on behalf of only one of the boys.  Let’s call him Brother Number One.  Brother Number Two was added to the suit in March—more than 60 days later.  Thus the court held that Brother Number Two could have given 60-days notice prior to filing suit.  Therefore, he should have.  The court lacked jurisdiction to consider his case.  Brother Number One, however, was facing an imminent threat to his religious freedom and was justified in suing without giving the notice. 

The court hints that this kerfuffle will make little difference in the end:

[Brother Number Two’s] noncompliance with TRFRA’s pre-suit notice requirement requires that we vacate the district court’s preliminary injunction as to him.  This disposition may prove to be of little practical consequence; both brothers are constrained by MISD’s hair policy and should the district court ultimately conclude that the policy is invalid under TRFRA, [Brother Number Two] may enjoy the benefits from that ruling and the strong protections afforded students by TRFRA….

So the next move may be a ruling on the merits.  Does this policy substantially burden religious exercise?  Stay tuned.  This one is Gonzales v. Mathis ISD, decided by the 5th Circuit on October 22, 2020. 


Tomorrow: The Three C’s of Documentation