A.A. By v. Needville Indep. Sch. Dist.

• Citation: 701 F.Supp.2d 863
• Decision Date: 20 January 2009
• Docket Number: Civil Action No. H-08-2934.
• Parties: A.A., by and through his parents and legal guardians, Michelle BETENBAUGH and Kenney Arocha; Michelle Betenbaugh, individually; and Kenney Arocha, individually, Plaintiffs,v.NEEDVILLE INDEPENDENT SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of Texas

701 F.Supp.2d 863

A.A., by and through his parents and legal guardians, Michelle BETENBAUGH and Kenney Arocha; Michelle Betenbaugh, individually; and Kenney Arocha, individually, Plaintiffs,v.NEEDVILLE INDEPENDENT SCHOOL DISTRICT, Defendant.

Civil Action No. H-08-2934.

United States District Court,

S.D. Texas,

Houston Division.

Jan. 20, 2009.

COPYRIGHT MATERIAL OMITTED

Daniel Mach, American Civil Liberties Union, Washington, DC, Lisa Graybill ACLU Foundation of Texas, Fleming Terrell, American Civil Liberties Union Foundation of Texas, Austin, TX, for Plaintiffs.

Jeffrey Lee Hoffman, Kristen Zingaro Foster, Henslee Fowler et al., Houston, TX, for Defendant.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Doc. No. 3) pursuant to Federal Rules of Civil Procedure 65(a). Three evidentiary hearings were held at which both sides presented documentary and testimonial evidence. Having considered the evidence, arguments, and relevant law, the Court finds that Plaintiffs' Motion should be granted in part and denied in part for the reasons stated herein.

I. FINDINGS OF FACTA. Plaintiffs' Religious Beliefs

Plaintiffs seek relief from an elementary school's hair style regulation that allegedly burdens their constitutional rights. Plaintiffs Michelle Betenbaugh and Kenney Arocha are married, and they have one son, Plaintiff A.A., who is five years old. (Prelim. Inj. Hr'g Tr., vol. II, 173:1-2, October 22, 2008.) Plaintiff Betenbaugh's relatives purchased land in Needville, Texas, and Plaintiffs decided to move there. They planned to enroll A.A. in Needville Elementary School when he began kindergarten in the fall of 2008. ( Id. at 186:21-187:6.)

Plaintiff Arocha identifies as Native American. ( Id. at 173:5-6.) When he was a child, his maternal grandfather and uncle told him he was Native American. ( Id. at 173:7-10.) The same grandfather and uncle taught him certain beliefs and “gave him tools” to guide him through the day and to help him “better understand his purpose.” ( Id. at 173:5-10.) He bases his religious practices on these teachings. ( Id. at 177:24-25.) His grandfather wore his hair short, but his uncle wore his hair long and in one or two braids. ( Id. at 213:1-11.) Plaintiff Arocha wore his hair long as a young child and was forced to cut it when he began school, an experience he describes as “unsettling.” ( Id. at 181: 18-23.) His other family members, including his mother, claim to be Hispanic and practice Catholicism. ( Id. at 174:3-5; 179:11-16.) Plaintiff Arocha believes that members of his tribe escaped the United States to avoid being placed on reservations and later returned, identifying themselves as Mexican nationals. ( Id. at 174:13-17.)

As Plaintiff Arocha grew older, he practiced Catholicism, and then Mormonism; neither suited him. ( Id. at 179:11-18.) Ten to eleven years ago, at Plaintiff Betenbaugh's urging, he began to “reconnect” to his Native American religion and the teachings of his grandfather and uncle. ( Id. at 179:17-21.) At hearing, he articulated his religious beliefs:

“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 the pay close attention to that, in order to respect whatever it was that gave itself up for me.”

( Id. at 175:18-23.) He believes that these values reflect Native American beliefs and are thus connected to his ancestry. ( Id. at 176:1-4.)

Plaintiff Arocha concedes that his understanding of his religion is incomplete, but he continues to research Native American religion and culture on a daily basis. ( Id. at 180:14-20.) He has petitioned to join the Lipan Apache tribe ( Id. at 178:6-8), but he has been unable to collect the required genealogical records. ( Id. at 174:22-175:13.) He practices smudging, a traditional ritual that is a form of prayer. ( Id. at 176:23-177:1). As part of the process of reconnecting with his family's teachings, Plaintiff Arocha also wears his hair long. ( Id. at 182: 2-5.) He admits that, when he began to grow his hair long, he was not doing so for religious reasons. ( Id. at 182:8-17.) A common theme of his religious experience, however, has been to discover that “something he has been doing for a long time winds up being something that's more significant.” ( Id. at 184:23-25.) He believes this is because he comes to a better understanding of his grandfather and uncle's teachings on a daily basis. ( Id. at 185:2-3.) It has been ten to eleven years since he last cut his hair. ( Id. at 182:1-5.)

Plaintiff Arocha now feels that his hair is “a symbol, an outward extension of who we are and where we come from, our ancestry and where we're going in life. It's a constant reminder to us of who we are.” ( Id. at 181:10-15.) Plaintiff Arocha will not cut his long hair unless he is in mourning for a loved one. ( Id. at 182:25-183:2.) An employer once threatened to terminate him if he did not cut his hair, but Plaintiff Arocha refused. ( Id. at 253:8-15.) When he underwent brain surgery, he worked with his doctors to avoid having his hair cut for the procedure. ( Id. 262:25-263:25.) He does, however, occasionally shave the sides of his head because of the summer heat. ( Id. at 250: 14-20.) Plaintiff Arocha has not suffered any teasing because of his long hair; instead, people ask him whether he is Native American, and he tells them that he is. ( Id. at 207:10-14.)

Plaintiff Arocha also finds religious significance in braiding his long hair. ( Id. at 183:18-19.) He believes that each braid and each plait has a deep meaning, and that the very act of braiding helps him feel connected to who he is. ( Id. at 183:11-15.) He formed these beliefs regarding his braids after the Needville Board of Trustees (“the School Board”) granted AA. an exemption from its school's grooming policy requiring him to keep his hair covered under his shirt, in one braid. ( Id. at 217:6-16.)

Plaintiffs Arocha and Betenbaugh have chosen, as parents, to teach A.A. Native American religious principles. ( Id. at 181:8-15.) As an example of their teachings, Plaintiff Arocha testified that when A.A.'s horse became ill, they had A.A. lead the horse to the vet to be euthanized so that he could understand that “all things come to an end.” ( Id. at 176:7-22.) Additionally, A.A.'s hair has never been cut, and he typically wears it in two long braids. ( Id. at 185:14-18; Pls.' Ex. 4-5.) His parents have explained to him that his hair connects him to his ancestors and is a constant reminder of “how long he has been here and an extension of who he is.” ( Id. at 185:12-14.) When people ask A.A. why he has long hair, he tells them it is because he is Native American. ( Id. at 181:5-7.) Plaintiffs Arocha and Betenbaum have begun to explain to A.A. what the two braids mean. ( Id. at 185:14-18.) When Plaintiff Betenbaum bought A.A. a wig as part of a Halloween costume, he refused to wear it because he did not want to cover his braids. ( Id. at 186:1-4.)

B. Plaintiff A.A.'s Enrollment in Needville Independent School District

Needville Independent School District (“NISD”) has 2500 students enrolled in elementary, intermediate, middle, and high school. (Prelim. Inj. Hr'g Tr., vol. I, 10:12-14, Oct. 17, 2008.) The district has a dress code in place that contains the following provision: “Boys' hair shall not cover any part of the ear or touch the top of the standard collar in the back.” (Ver Compl., Ex. 1.) The dress code also outlines the punishment for violations: “For persistent offenses, students will be subject to assignment in ISS, suspension, or assignment to the Needville ISD DAEP” (Ver. Compl., Ex. 1.) The dress code's self-proclaimed purpose is “to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority.” (Ver. Compl., Ex. 1.) Prior to A.A., no student had requested a religious exemption from the dress code in at least 22 years. (Prelim. Inj. Hr'g Tr., vol. II, 295:17-25.) ¹

Prior to the family's move to Needville, Plaintiff Betenbaugh first contacted NISD about A.A.'s Native American heritage, and his hair length, via email on November 6, 2007. (Ver. Compl., Ex. 2 at 16.) In that email, she inquired whether, in light of the dress code, A.A.'s hair would be a problem when he began kindergarten, and what documentation would be necessary to prove his heritage. Id. The email was directed to Linda Sweeney, the secretary of NISD Superintendent Curtis Rhodes. Id. Superintendent Rhodes never received the email (Prelim. Inj. Hr'g Tr., vol. I, 8:7-11), and Plaintiffs did not receive a response. ( Id. at 187:20-22.)

Plaintiff Betenbaugh next contacted NISD about A.A.'s hair length in an email to Needville Elementary School Principal Jeanna Sniffin dated May 27, 2008. (Ver. Compl., Ex. 2 at 15.) Principal Sniffin responded to Plaintiff Betenbaugh's inquiry by telling her that long hair was not permitted for boys. ( Id.) Plaintiff Betenbaugh then emailed Superintendent Rhodes directly about the issue, notifying him that AA. wore his hair long in accordance with Plaintiffs' religious beliefs. (Ver. Compl., Ex. 4.)

Rhodes agreed to meet with Plaintiffs on June 9, 2008, to discuss A.A.'s hair. (Ver. Compl., Ex. 2 at 27.) He requested proof of Plaintiffs' belief that hair should not be cut. Plaintiffs explained that their religious beliefs were passed down orally, and that they could not direct him to a book that said they needed to wear their hair long. (Prelim. Inj. Hr'g Tr., vol. II, 189:18-21; 190:1-5.) Plaintiffs gave Superintendent Rhodes copies of court opinions that they believe supported their position, including Alabama and Coushatta Tribes of Texas v. Big Sandy School Dist., 817 F.Supp. 1319 (E.D.Tex.1993), a copy of the Native American Freedom of Religion Act, and the results of a DNA test,...