611 F.3d 248 (5th Cir. 2010), 09-20091, A.A. ex rel. Betenbaugh v. Needville Independent School Dist.
| Citation | 611 F.3d 248 |
| Opinion Judge | PATRICK E. HIGGINBOTHAM, Circuit Judge: |
| Party Name | A.A., by and through his parents and legal guardians, Michelle BETENBAUGH and Kenney Arocha; Michelle Betenbaugh, individually; Kenney Arocha, individually, Plaintiffs-Appellees, v. NEEDVILLE INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant. |
| Attorney | Lisa S. Graybill, Amer. Civil Liberties Union, Austin, TX, Daniel Mach, Amer. Civil Liberties Union, Program on Freedom of Religion & Belief, Washington, DC, Sinead Mary O'Carroll, Paul W. Schlaud, Reeves & Brightwell, L.L.P., Austin, TX, for Plaintiffs-Appellees. Roger D. Hepworth (argued), Kris... |
| Judge Panel | Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges. E. GRADY JOLLY, Circuit Judge, dissenting: |
| Case Date | July 09, 2010 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fifth Circuit |
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Appeal from the United States District Court for the Southern District of Texas.
A Native American boy and his parents challenge a school district's requirement that he wear his long hair in a bun on top of his head or in a braid tucked into his shirt. We agree with the district court that the requirement offends a sincere religious belief and hold it invalid under Texas law.
I
When this dispute began, A.A. was a five-year-old prospective kindergartner whose parents were planning to move to Needville, Texas, a small town located forty-five miles southwest of downtown Houston. The school district in Needville1 has long had a grooming policy, which, among other things, provides that " [b]oys' hair shall not cover any part of the ear or touch the top of the standard collar in back." The policy's stated design is " to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority." In keeping with his Native American religious beliefs, A.A. has never cut his hair, which he has at times kept unbraided, and in one and two braids.
Like most young children, A.A.'s beliefs hitch to those of his parents, Kenney Arocha and Michelle Betenbaugh. Arocha identifies as Native American and both he and his son are members of the state-recognized Lipan Apache Tribe of Texas. 2 While Arocha and Betenbaugh have raised their son according to Native American tenets, Arocha's own religious beliefs have evolved over the years. As a child, Arocha's maternal grandfather and uncle told him that he was Native American, instructed him in certain beliefs, and " gave him tools" to guide him through the day and to help him " better understand his purpose." Arocha believes that members of his Native American tribe fled the United States to avoid being placed on reservations, explaining, he suggests, why some in the family, like his mother, identify as Hispanic and practice Catholicism.
Though he too practiced Catholicism and Mormonism at times as he grew older, Arocha began to " reconnect" to his Native American religion and the teachings of his grandfather and uncle more than a decade ago. He believes that his religious values reflect Native American beliefs and are thus connected to his ancestry:
What I like to do, I like to have reverence every day to understand that at every turn, no matter what it was, no matter what it is that we're doing, something somewhere had to give itself up for us and to understand that and pay
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close attention to that, in order to respect whatever it was that gave itself up for me.
Arocha explains that his understanding of his religion is a journey and that he continues to research Native American religion and culture on a daily basis and engages in a ritual form of prayer called smudging.
Long hair is part of Arocha's religious beliefs. He wears his hair long, as he did as a young child before he was forced to cut it for school-an experience he describes as " unsettling." His grandfather wore his hair short, but his uncle wore his hair long and in one or two braids. As an adult and over time Arocha came to find religious meaning in wearing his hair long as he gained greater understanding of his grandfather and uncle's teachings. The result is that, as with other aspects of Arocha's religious experience, " something he has been doing for a long time winds up being something that's more significant," and for more than a decade he has seen his long hair as " a symbol, an outward extension of who we are and where we come from, our ancestry and where we're going in life" and " a constant reminder to us of who we are." Arocha last cut his hair's length about ten or eleven years ago, though he does trim the sides on occasion because of the summer heat. He will not cut his hair's length unless he is mourning for a loved one. An employer once threatened to terminate him if he did not cut his hair, but Arocha refused. And, when he underwent brain surgery a few years ago, he worked with his doctors to keep his long braids.
Arocha and Betenbaugh have passed these familial religious traditions on to their son and so, as we have noted, A.A.'s hair has never been cut. A.A.'s parents have explained to him that his hair is a connection to his ancestors, as well as a reminder of " how long he has been here and an extension of who he is." When others ask about his long hair, A.A. responds that he is Native American. He once refused to wear a wig as part of a Halloween costume because he did not want it to cover his braids. While A.A. " customarily keeps" his hair " in two 13-inch-long braids," he does not always do so.
II
Not yet in Needville, A.A.'s family began planning a move to the town in 2007. In November of that year, Betenbaugh contacted the Needville Independent School District in anticipation of A.A.'s enrollment the following fall.
Betenbaugh first e-mailed Linda Sweeny, the secretary of school superintendent Curtis Rhodes, and asked whether her son's " long hair" would pose a problem in light of the dress code, and what documentation would be necessary to prove his Native American heritage.3 Superintendent Rhodes never received the e-mail and Betenbaugh received no response.
Betenbaugh sent a second e-mail in May 2008 to the elementary school's principal, Jeanna Sniffin, asking if A.A.'s " long hair" worn " in accordance with their [Native American] heritage" would pose a problem.4 Sniffin responded, " [o]ur dress code
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in Needville does not allow boy's [sic] hair to touch their ears or go below their collar. Long hair is not allowed." Betenbaugh then e-mailed Superintendent Rhodes informing him that A.A. " is Native American and has long hair in accordance with his father's beliefs" and that " [w]e keep his hair clean and neatly braided."
About two weeks later, Rhodes met with A.A.'s parents to discuss the hair length issue. He requested proof of the family's religious beliefs. Arocha and Betenbaugh explained that their beliefs were passed down orally, and thus they could not direct him to written documentation. They did, however, present Rhodes with related legal precedent, a copy of the American Indian Religious Freedom Act,5 and the results of a 2005 DNA test indicating that Arocha is of Native American descent. Arocha and Betenbaugh also explained that, according to their beliefs, hair was not to be cut except after life-changing events, characterizing it as " a yardstick of wisdom." They related that A.A.'s decision to wear long hair to school was a " personal choice." Superintendent Rhodes denied the exemption request in a written denial letter that gave no explanation for his decision though it provided information on how to appeal his decision to the school board.
The parents did appeal, urging that, " [w]e as parents disagree with Mr. Rhodes' [sic] decision because our son's hair and its length are a sacred part of the belief system we practice. Cutting hair in order to comply with the dress code is not an option."
Local media began to cover the dispute. The Houston Press quoted Superintendent Rhodes as saying:
I've got a lot of friends that are Native Americans ... and they all cut their hair. We're not going to succumb to everything and just wash away our policies and procedures.... If you want to think we're backwards ... no one is asking you to move to Needville and have these opinions invoked on you.
The school board met to consider the request. Before a " standing room only" crowd, Arocha and Betenbaugh both spoke, as did many members of the Needville community. Superintendent Rhodes then recommended to the board that the family's exemption request be denied as premature since they did not yet live in the district. He had come to this conclusion following his initial meeting with the family, but had not mentioned it to the family until then. The school board agreed with Rhodes's recommendation, even though there was no official policy requiring a child to live in Needville before...
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