No. 02-2793

________________________________

In the

SUPREME COURT OF THE UNITED STATES OF AMERICA __________________________

SAINT TAMMANY PARISH SCHOOL CORPORATION, et al.

Petitioners,

v.

Patrick and Melissa AMENDOLA, on behalf of their minor child, Danny

Respondents.

__________________________

ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT

_____________________

ORIGINAL BRIEF ON BEHALF OF

SAINT TAMMANY PARISH SCHOOL CORPORATION, et al.

Petitioners

Team #1

 

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QUESTIONS PRESENTED

I. Whether the Court of Appeals erred in finding that the haircut policy violated the

Plaintiff’s due process and equal protection rights.

II. Whether the Court of Appeals erred in refusing to adopt the popular exception to the

ordinary torts doctrine, the baseball rule for Tulania.

 

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TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iv

STATEMENT OF THE CASE vii

STANDARD OF REVIEW x

SUMMARY OF THE ARGUMENT xi

ARGUMENT 1

I. THE APPELLATE COURT ERRED IN FINDING THAT THE HAIRCUT POLICY VIOLATED THE PLAINTIFF’S CONSTITUTIONAL RIGHTS 1

A. The Haircut Policy does not violate the Plaintiff’s substantive due process rights 1 1. The right to a hairstyle of one’s choice is not a fundamental right

protected by the United States Constitution 1

2. The Haircut Policy is only subject to the rational basis test and does not require substantial justification by the Defendants 4

B. The Haircut Policy is not discriminatory and does not violate the

Plaintiff’s equal protection rights 5

II. THE COURT SHOULD REVERSE THE APPELLATE COURT’S DECISION BECAUSE THE LIMITED DUTY DOCTRINE STRONGLY FAVORS SOUND PUBLIC POLICY FOR BOTH FANS AND STADIUM OPERATORS 8 A. The Southern District of Tulania should adopt the baseball rule because

it is not only a fair standard of care to hold stadium owners accountable but it also represents good public policy 10

 

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B. Requiring stadium owners to screen the high-risk areas of a stadium provides greater specificity that the ordinary standard of care requirement does not address 13

C. The baseball rule should be adopted in the present case because the

bathroom and the concession area are not highly dangerous sections of the stadium 16

CONCLUSION 19

 

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TABLE OF AUTHORITIES Cases

Akins v. Glen Falls City Sch. Dist., 424 N.E.2d 531 (N.Y. 1981) 16

Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo. 1950) 14, 15

Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1980) 9

Ball v. City of Blackfoot, 273 P.3d 1266 (Idaho 2012) 13

Barker v. Taft Broad. Co., 549 F.2d 400 (6th Cir. 1977) 6

Bd. of Trustees of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365 (Tex. 1997) 7

Bellezo v. Arizona, 851 P.2d 847 (Ariz. Ct. App. 1992) 9, 15

Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219 (Mich. Ct. App. 2001) 14

Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) 2

Bohen v. City of E. Chicago, Ind., 799 F.2d 1180 (7th Cir. 1986) 5

Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) 2, 4

Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001) 5

Davenport by Davenport v. Randolph Cty. Bd. of Educ., 730 F.2d 1395 (11th Cir. 1984) 3

Eisenstadt v. Baird, 405 U.S. 438 (1972) 1

Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697 (5th Cir. 1968) 2, 3, 4

Friedman v. Houston Sports Ass’n, 731 S.W.2d 572 (Tex. App. 1987) 9

Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) 2

Griswold v. Connecticut, 381 U.S. 479 (1965) 1, 4

Harper v. Blockbuster Entm't Corp., 139 F.3d 1385 (11th Cir. 1998) 6

 

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Harper v. Edgewood Bd. of Educ., 655 F. Supp. 1353 (S.D. Ohio 1987) 8

Hayden ex rel. A.H. v. Greensburg Cmty. Sch. Corp., 743 F.3d 569 (7th Cir. 2014) 2, 7

Humphries v. Lincoln Par. Sch. Bd., 467 So. 2d 870 (La. Ct. App. 1985) 3

Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (Utah 1995) 9

Loving v. Virginia, 388 U.S. 1 (1967) 1

Maisonave v. Newark Bears Professional Baseball Club, Inc., 881 A.2d 700 (N.J. 2005) 11, 13

Markowitz v. Arizona Parks Bd., 706 P.2d 364 (Ariz. 1985) 15

Martinez v. Houston McLane Co., LLC, 414 S.W.3d 219 (Tex. App. Ct. 2013) 8,9,10

Meyer v. Nebraska, 262 U.S. 390 (1923) 1

Moore v. East Cleveland, 431 U.S. 494 (1977) 2

Nabozny v. Podlesny, 92 F.3d 446 (7th Cir.1996) 5, 6

Neinstein v. Los Angeles Dodgers, Inc., 229 Cal. Rptr. 612 (Cal. Ct. App. 1986) 10, 11, 16

Palko v. Connecticut, 302 U.S. 319 (1937) 2

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 1

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) 1

Pugsley v. Sellmeyer, 250 S.W. 538 (1923) 3

Rochin v. California, 342 U.S. 165 (1952) 1

Rudnick v. Golden West Broadcasters, 202 Cal. Rptr. 900 (Cal. Ct. App. 1984) 9

Schaill by Kross v. Tippecanoe Cty. Sch. Corp., 864 F.2d 1309 (7th Cir. 1988) 3

Schroeder v. Hamilton Sch. Dist., 282 F.3d 946 (7th Cir. 2002) 5

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) 1

 

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Snyder v. Massachusetts, 291 U.S. 97 (1934) 2

Swagger v. City of Crystal, 379 N.W.2d 183 (Minn. Ct. App. 1985) 9, 10

Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir. 1996) 6

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) 3

Turner v. Glickman, 207 F.3d 419 (7th Cir. 2000) 4

Turner v. Mandalay Sports Entm’t., LLC, 180 P.3d 1172 (Nev. 2008) 9, 11

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) 3

Viscecchia v. Alrose Allegria LLC, 2015 WL 4602729 (E.D.N.Y. July 30, 2015) 6, 7

Washington v. Glucksberg, 521 U.S. 702 (1997) 1, 2, 4

Constitution

U.S. Const. amend. XIV, § 1 1

 

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STATEMENT OF CASE

Plaintiffs-Respondents Patrick and Melissa Amendola on behalf of their minor son

Danny filed this suit against the Saint Tammany Parish School Corporation (“School

Corporation”) and its School Board Members. R. at 32. Danny, who was 14 years old when this

case commenced, attended St. Paul’s High School (“St. Paul’s”), which receives federal funding.

R. at 32-34. The School Board oversees Superintendent Goodell, who operates the School

Corporation. R. at 33. Principal Kraft runs St. Paul’s, and Coach William Belichick is the head

varsity boys’ baseball coach. R. at 33. All defendants acted under color of state law. R. at 33.

The School Corporation’s mandatory “Dress and Grooming” Policy 5511, provides that

“the Superintendent shall establish such grooming guidelines as are necessary to promote

discipline, maintain order, secure the safety of students, and provide a healthy environment

conducive to academic purposes.” R. at 33. “Such guidelines shall establish the dress

requirements for members of athletic teams, bands, and other groups representing the [School]

Corporation at a public event.” R. at 33. “Each principal, in consultation with his/her staff, shall

develop a dress code which complies” and “should delineate what types of clothing or manner of

clothing does not comply with the School Board Policy and why such clothing or manner of

wear is not permitted.” R. at 33.

The School Board approved St. Paul’s Athletic Code of Conduct (“Code”) for student

athletes. R. at 34.

Hair [s]tyles which create problems of health and sanitation, obstruct vision, or call undue attention to the athlete are not acceptable. Athletes may not wear haircuts that include insignias, numbers, initials, or extremes in differing lengths. Mohawks are not acceptable, and hair coloring is not permitted. Each varsity head coach will be

 

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responsible for determining acceptable length of hair for a particular sport. Ask a coach before trying out for a team if you have a question regarding hairstyles.

R. at 34. Coach Belichick established the Haircut Policy for the boys’ baseball team requiring

players to have their hair cut above their ears, eyebrows, and collar. R. at 34.

On October 25, 2010, Danny tried out for and eventually made the boys’ baseball team

despite his noncompliance with the Haircut Policy. R. at 34. The coaches informed Danny that

he could be a team member even if he did not comply with the Haircut Policy, but that he would

not be able to participate in practices or games. R. at 34. In the following days, Ms. Amendola

met with Coach Belichick, Principal Kraft, and Superintendent Goodell to discuss the Haircut

Policy. R. at 34-35. Coach Belichick explained that the purpose of the Haircut Policy was to

promote an image of “clean cut” boys and institute “uniformity” for the sake of team unity. R. at

34.

After initially practicing with the team, the coaches informed the boys’ baseball team that

any student not in compliance with the Haircut Policy by November 4 would be removed from

the team. R. at 34-35. On November 4, 2010, Danny came to practice with his hair longer than

the Haircut Policy permitted and was dismissed from the team along with another noncompliant

player, Julian. R. at 35. Danny moved to another school corporation for the remainder of the

school year. R. at 35.

During the 2011-2012 school year Danny played on the St. Paul’s boys’ baseball team

with his hair cut in compliance with the Haircut Policy. R. at 36. In November 2012, Danny

went to try out for the St. Paul’s boys’ baseball team as a senior, but his hair was not in

compliance with the Haircut Policy, and he was told he would not be allowed to practice until he

 

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complied. R. at 37. Danny again transferred to another school corporation, but Danny may

return to St. Paul’s and will continue to wear his hair longer than the Haircut Policy allows. R. at

37.

Additionally, on December 7, 2011, Jesuit High School hosted a varsity baseball

tournament at Jesuit Stadium. R. at 36. The St. Tammany Parish School Corporation is the

owner of the stadium. Ms. Amendola attended the tournament between her son’s team, St. Paul,

and Jesuit. R. at 36. The School Corporation provides it visitors with various safety precautions,

which include but are not limited to seats behind home plate that are shielded by a protective net.

R. at 37. Furthermore, there are also numerous, large warning signs posted throughout the

stadium alerting spectators that they could possibly be injured during the baseball game and pre-

game warm-up by a thrown or batted ball leaving the field of play. R. at 37. The School

Corporation also requires that a loudspeaker announcement be made before the game begins that

warns spectators. R. at 37.

Ms. Amendola attended the tournament between her son’s team, St. Paul’s, and Jesuit. R.

at 36. Ms. Amendola purchased a general admission ticket. Each admission ticket warns patrons

that they assume the risks and dangers incidental to baseball, including being hit by a bat or

batted ball. R. at 36-37. However, Ms. Amendola did not read the warning displayed on the

ticket. R. at 37. Ms. Amendola’s seat was located on the sixteenth row in the open-seating,

bleacher section of the stands down the third-base side of the field. R. at 36. During the seventh

or eighth inning, Ms. Amendola left her seat to go to the women’s restroom located at the back

of the grandstand on the third-base side of the field, which required her to walk down the steps of

 

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the bleacher section, across an area on the ground level near the concession stand, and up the

stairway leading to the back of the grandstand. R. at 36. When she was returning from the

restroom and near the concession area, she was hit in the mouth by a foul fly ball. R. at 36. Ms.

Amendola lost a tooth, which required extensive dental procedures. R. at 36. She was not paying

attention to the game and could not see the batter or the foul ball coming at her. R. at 36.

The Plaintiff’s brought this suit against the School Corporation, which challenges the

constitutionality of the Haircut Policy on both due process and equal protection grounds.

Furthermore, the plaintiff alleges a tort claim for the foul ball injury to Ms. Amendola. R. at 39.

The United States District Court for the Southern District of Tulania denied all of the Plaintiff’s

claims on the merits. The United States Court of Appeals for the Fourteenth Circuit reversed

finding choice of hairstyle to be a protected right which the Haircut Policy violated on due

process and equal protection grounds and declining to adopt the baseball rule.

STANDARD OF REVIEW

The Supreme Court will review the case at hand de novo.

 

xi

SUMMARY OF THE ARGUMENT

The United States Court of Appeals for the Fourteenth Circuit’s ruling that the Haircut

Policy violated the Plaintiff’s due process and equal protection rights should be reversed. There

is not a fundamental liberty interest protected by the Constitution in the right to a hairstyle or

hair length of one’s choosing. The Due Process Clause protects fundamental rights and liberties

rooted in history and tradition, but hairstyle does not qualify as such. Schools have authority to

control student conduct and enforce regulations which may impinge on some individual

preferences and to further regulate interscholastic athletes. The baseball teams’ interest in its

image and team uniformity are sufficient rationales for the regulations.

The Haircut Policy is also not facially discriminatory in violation of the Plaintiff’s equal

protection rights due to its application to the boys’ baseball team and not to girls’ sports teams.

The Haircut Policy is part of a larger dress and grooming policy applicable to all students and an

athletic code of conduct applicable to all student athletes which imposes a comprehensive and

evenly-enforced grooming code with comparable burdens on both male and female students and

which also lawfully imposes sex-differentiated standards consistent with community norms.

The United States Court of Appeals for the Fourteenth Circuit’s decision not to adopt the

baseball rule for the Southern District of Tulania should be reversed. The baseball rule has been

a longstanding doctrine that gives stadium owners clarity in their duty owed to spectators.

Providing screened seating behind home plate, which is the area of highest risk, is a fundamental

requirement for stadium owners to follow. It would be poor public policy to require stadium

owners to screen large portions of the field because it would take away from the fan experience.

 

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Furthermore, other areas of the field such as a concession/bathroom area, do not amount to high-

risk areas. Therefore, the duty to screen those portions of the stadium should not be extended.

The School Corporation not only provided its spectators with the opportunity to sit

behind the screened portion of the stadium, home plate, but it also gave its spectators more than

adequate warning of the risk of injury involved with the game of baseball. Ms. Amendola did

not request to be seated behind such protective screening. Moreover, she has attended baseball

games for many years and clearly knew of the dangers the game presented. Therefore, the

baseball rule should apply to the present facts and be extended throughout the United States so

that each state will no longer be forced to grapple with the question of what duty stadium owners

owe to their fans. Uniformity is key not only for stadium owners, but also spectators.

 

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ARGUMENT

I. THE APPELLATE COURT ERRED IN FINDING THAT THE HAIRCUT POLICY VIOLATED THE PLAINTIFF’S CONSTITUTIONAL RIGHTS

The court of appeal’s ruling should be reversed because there is not a fundamental liberty

interest in hairstyle or hair length, and the Defendant’s Haircut Policy requirement for the boys’

baseball team does not violate the Fourteenth Amendment rights to substantive due process nor

equal protection of the laws. The Fourteenth Amendment provides that “[n]o State shall …

deprive any person of life, liberty, or property without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

A. The Haircut Policy does not violate the Plaintiff’s substantive due process rights 1. The right to a hairstyle of one’s choice is not a fundamental right protected by the

United States Constitution

The Due Process Clause provides heightened protection against government interference

with certain fundamental rights and liberty interests, including the freedoms protected by the Bill

of Rights; the right to marry, Loving v. Virginia, 388 U.S. 1 (1967); the right to have children,

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); the right to direct the education

and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of

Sisters, 268 U.S. 510 (1925); the right to marital privacy, Griswold v. Connecticut, 381 U.S. 479

(1965); the right to use contraception, id.; Eisenstadt v. Baird, 405 U.S. 438 (1972); the right to

bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and the right to an abortion, Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Washington v. Glucksberg, 521

 

2

U.S. 702, 720 (1997) (declining to find the right to commit assisted suicide to be a fundamental

right). The right to a hairstyle of one’s choice is not one of these fundamental rights.

“[T]he Due Process Clause specially protects those fundamental rights and liberties which

are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ Moore v. East Cleveland,

431 U.S. 494, 503 (1977); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), and ‘implicit in the

concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were

sacrificed,’ Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).” Washington, 521 U.S. at 720-

21.

While the Seventh Circuit has found that “[t]he right to wear one’s hair at any length or

in any desired manner is an ingredient of personal freedom protected by the Constitution,” the

court did not go so far as to locate it within the realm of free speech or as a fundamental right.

Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969); see Hayden ex rel. A.H. v. Greensburg

Cmty. Sch. Corp., 743 F.3d 569 (7th Cir. 2014). The appellate court heavily relied on the

Seventh Circuit’s jurisprudence in ruling for the Plaintiff’s, but many other circuits and courts

have recognized the public schools’ authority to enact and enforce dress and grooming policies.

Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) (upholding school dress

code); Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) (upholding school restrictions on hair

length); Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697 (5th Cir. 1968) (upholding restrictions

on hair length).

 

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This Court in Tinker v. Des Moines Independent Community School District recognized

the First Amendment right of students to wear black armbands to school in protest of the

Vietnam War but distinguished this type of action from school regulations of the length of skirts

or the type of clothing, to hair style, or deportment. Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 507-08 (1969) (citing Ferrell, 392 F.2d at 703; Pugsley v. Sellmeyer, 250

S.W. 538, 539-40 (1923) (upholding restrictions on cosmetics)). State and school authorities

have comprehensive authority, consistent with fundamental constitutional safeguards, to

prescribe and control conduct in the schools. Tinker, 393 U.S. at 507.

Additionally, many of those cases, which overturned school dress and grooming policies,

can be distinguished by the fact that they applied to students generally, barring enrollment and

attendance at a public school. The Haircut Policy only applies to members of the baseball team.

Schools may condition participation in interscholastic sports upon a greater degree of regulation

than that imposed on students generally. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)

(enforcing drug testing policy for athletes). Athletes have reason to expect intrusions on normal

rights and privileges, including their privacy, conduct, and dress and grooming. Id.; Schaill by

Kross v. Tippecanoe Cty. Sch. Corp., 864 F.2d 1309, 1310 (7th Cir. 1988) (urinalysis program

for student athletes); Davenport by Davenport v. Randolph Cty. Bd. of Educ., 730 F.2d 1395,

1396 (11th Cir. 1984) (suspended and barred from participation in school sports teams for

violations of grooming policy); Humphries v. Lincoln Par. Sch. Bd., 467 So. 2d 870, 871 (La. Ct.

App. 1985). Danny is subject to reasonable regulations of dress and grooming as both a public

school student and as a student athlete, including the Haircut Policy regulation.

 

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2. The Haircut Policy is only subject to the rational basis test and does not require substantial justification by the Defendants

The appellate court erred not only in finding choice of hairstyle to be a fundamental right but

in requiring a substantial burden of justification for the regulation by the defendants when only a

rational relationship was necessary. There is a threshold requirement that the challenged state

action must implicate a fundamental right before any more than a reasonable relation to a

legitimate state interest is required as justification for the action. Washington, 521 U.S. at 721-

22. Only where there is a significant encroachment upon personal liberty, upon those

fundamental constitutional rights, the State must show a subordinating interest in the regulation,

which is compelling, and the statute bears a substantial burden of justification. Griswold, 381

U.S. at 497, 503. Choice of hairstyle is a not a fundamental liberty interest, and the right to

participate in extracurricular sports is not a protected property interest. Therefore, the burden of

justification is not substantial but simply the rational basis test.

The Plaintiff must show the government’s policy is completely arbitrary and lacking any

rational connection to legitimate government interest. Turner v. Glickman, 207 F.3d 419, 426-27

(7th Cir. 2000). The Haircut Policy is not arbitrary if a sound reason may be hypothesized. The

Haircut Policy is rationally related to the legitimate school interest of advancing the image of

“clean cut” boys and instituting “uniformity” for team unity. R. at 34. The appellate court

rejected the regulation for the lack of substantial justification in the record. But where Danny

makes no claim that his “hair symbolizes any specific viewpoint except possibly the defiance of

school regulations” or possibly ‘individuality,’ the defiance itself should be enough of a

 

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justification, proof of disruption and contempt for authority and regulations. Breen, 419 F.2d at

1039 (Duffy, J., dissenting). Where school rules and regulations are put in place to prevent

commotion, trouble, distractions, and disturbances in the school, they do not violate the due

process clause. Ferrell, 392 F.2d at 702. “The interest of the state in maintaining an effective

and efficient school system is of paramount importance. That which so interferes or hinders the

state in providing the best education possible for its people, must be eliminated or circumscribed

as needed.” Id. at 703.

B. The Haircut Policy is not discriminatory and does not violate the Plaintiff’s equal protection rights

The appellate court erred in holding that the Haircut Policy was facially discriminatory since

it only applied to the boys’ baseball team and not the girls’ softball or other sports teams.

Discrimination against the individual plaintiff because of his membership in the class, rather than

a policy against an entire class, all boys or even all boys playing sports, is sufficient, but the

plaintiff must show that the defendants’ actions had a discriminatory effect and were motivated

by a discriminatory purpose. Bohen v. City of E. Chicago, Ind., 799 F.2d 1180, 1187 (7th Cir.

1986); Chavez v. Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). For discriminatory

effect, the plaintiffs must show they are part of a protected class, otherwise similarly situated to

members of the unprotected class, and that plaintiffs were treated differently from members of

the unprotected class. Chavez, 251 F.3d at 636. Meaning Danny was intentionally treated

differently as a male athlete, which was not rationally related to a legitimate government interest.

Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002). Discriminatory purpose

 

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implies a “decisionmaker singled out a particular group for disparate treatment and selected his

course of action at least in part for the purpose of causing its adverse effects on the identifiable

group.” Nabozny v. Podlesny, 92 F.3d 446, 453–54 (7th Cir.1996).

The Haircut Policy did not intentionally discriminate against Danny because he was a

male or even a male athlete but only because he was on the baseball team. It does not apply to

other male athletes. The Haircut Policy was not based on unlawful gender classifications, but is

merely an additional requirement to play on the boys’ baseball team. The Haircut Policy does

not discriminate because of gender, and the equal protection claim should be dismissed.

The application of cases from the employment context is inapposite since the majority of

courts have held that requiring short hair on men and not on women or discriminating based

upon a male employee’s hair length does not violate Title VII of the Civil Rights Act. Viscecchia

v. Alrose Allegria LLC, 2015 WL 4602729, at *5 (E.D.N.Y. July 30, 2015). “[E]very federal

court of appeals that has addressed the issue has similarly found that prescribing gender-

differentiated hair length standards does not create an actionable claim under Title VII.” Id. (see

Tavora v. New York Mercantile Exch., 101 F.3d 907, 908 (2d Cir. 1996); Harper v. Blockbuster

Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (“differing hair length standards for men and

women do not violate Title VII”); Barker v. Taft Broad. Co., 549 F.2d 400, 401 (6th Cir. 1977)

(“The prohibition of sex discrimination must be interpreted in light of the purpose and intent of

Congress in enacting the Civil Rights Act of 1964. Employer grooming codes requiring different

hair lengths for men and women bear such a negligible relation to the purpose of Title VII that

 

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we cannot conclude they were a target of the Act.”)); Bd. of Trustees of Bastrop Indep. Sch. Dist.

v. Toungate, 958 S.W.2d 365, 370 (Tex. 1997) (rounding up additional cases).

In a case with similar facts to the instant ones, Hayden v. Greensburg Community School

Corporation, involved a school district's grooming policy requiring all boys playing basketball to

maintain short hair, but imposing no similar requirement for girl basketball players. 743 F.3d

569.

The Seventh Circuit held that the policy violated the equal protection clause and Title IX and drew upon principles from Title VII that “sex-differentiated standards consistent with community norms may be permissible to the extent they are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both male and females alike.” Id. at 581. Indeed, the Seventh Circuit acknowledged that a number of Title VII cases “sustained workplace hair-length restrictions on male but not female employees,” but noted that “each of those cases relied on the fact that female employees, although not subject to hair-length restrictions, were subject to comparable grooming requirements.” Id. The crucial factor that led the Seventh Circuit to deem the policy discriminatory was that the school district only had a hair-length policy in place for the boys and the district failed to show that it was “just one component of a comprehensive grooming code that imposes comparable although not identical demands on both male and female athletes.” Id. at 580. The Seventh Circuit concluded that “the hair-length policy, being applicable only to boys teams, dr[ew] an explicit gender line” and as a result “[t]he intent to treat boys differently from girls [was] ... evident from the one-sided nature of the policy.” Id. at 579.

Viscecchia, 2015 WL 4602729, at *12 n.5.

The School Corporation’s Haircut Policy should be considered part of the larger Dress

and Grooming Policy applied to all students and the Athletic Code of Conduct applied to all

student athletes, which presents a comprehensive and evenly-enforced grooming code with

comparable burdens on both males and females but which also imposes sex-differentiated

 

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standards consistent with community norms. R. at 33-34; see Harper v. Edgewood Bd. of Educ.,

655 F. Supp. 1353, 1355 (S.D. Ohio 1987). “The school dress code does not differentiate based

on sex. The dress code requires all students to dress in conformity with the accepted standards of

the community.” Harper, 655 F. Supp. at 1356.

II. THE COURT SHOULD REVERSE THE APPELLATE COURT’S DECISION BECAUSE THE LIMITED DUTY DOCTRINE STRONGLY FAVORS SOUND PUBLIC POLICY FOR BOTH FANS AND STADIUM OPERATORS

The limited duty doctrine, also referred to by courts as the baseball rule, is a

longstanding legal doctrine that restricts the vulnerability of stadium operators to liability based

on events that are out of its control. The case at hand presents this Court with the unique

opportunity to carve out an exception to the ordinary tort doctrines for America’s pastime,

baseball.

Claims filed by spectators against stadium owners are primarily either negligence or

premise liability actions. Martinez v. Houston McLane Co., LLC, 414 S.W. 3d 219, 227 (Tex

App. Ct. 2013). The elements of a negligence cause of action are the existence of a duty, a

breach of that duty, and damages proximately caused by that breach. Id. at 227. Premise liability

is a special form of negligence where the duty owed to a plaintiff depends upon the plaintiff’s

status. Id. For example, whether the plaintiff was an invitee at the time the incident occurred. Id.

Therefore, in a usual case, the duty analysis for both premise liability and negligence are similar

but distinct. Id. However, in a case where the baseball rule applies, the limited duty of the

 

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stadium owner is the same regardless of whether the plaintiff’s cause of action is negligence or

premise liability. Id.

Although the First Circuit Court of Appeals for the Fourteenth Circuit has held that it will

not adopt the baseball rule merely based on widespread acceptance, this Court has the power to

examine those jurisdictions and adopt the majority view. Upon examining precedents from other

jurisdictions, the baseball rule has gained tremendous, if not “universal” support. See, e.g.,

Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013, 1015 (Utah 1995); Bellezo v. Arizona, 851

P.2d 847, 853 (Ariz. Ct. App. 1992); Arnold v. City of Cedar Rapids, 443 N.W.2d 332, 333

(Iowa 1989); Friedman v. Houston Sports Ass’n, 731 S.W.2d 572, 574-75 (Tex. App. 1987);

Swagger v. City of Crystal, 379 N.W.2d 183, 185 (Minn. Ct. App. 1985); Rudnick v. Golden

West Broadcasters, 202 Cal. Rptr. 900, 905 (Cal. Ct. App. 1984).

While there are various trivial differences in how states approach the baseball rule, the

majority of states hold that the baseball rule places two important requirements on stadium

owners and operators. Turner v. Mandalay Sports Entm't, LLC, 180 P.3d 1172, 1175 (Nev.

2008). First, the rule requires stadium owners and operators to provide an adequate amount of

protective seating for all those fans who may be reasonably anticipated to desire such seating on

an ordinary occasion. Id. at 1175. Secondly, the baseball rule requires stadium owners and

operators to provide protection for all fans located in the most dangerous portions of the stadium.

Id. For example, in baseball, the area behind home plate is considered the most dangerous

section of a stadium. Id.

 

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Therefore, in states that follow the baseball rule, when the evidence is not contested and

shows that the stadium owner satisfied its limited duty to provide adequately screened seats for

all those desiring them and there is no issue of material fact as to whether the stadium owner

fulfilled its limited duty, then the trial court may grant summary judgment on both negligence

and premise liability claims. Martinez, 414 S.W.3d at 227.

First, this section of the brief will address the sound policy implications behind the

baseball rule and prove why the United States District Court for the Southern District of Tulania

was correct in adopting this popular exception. Next, this brief will show that the rule provides

greater specificity to stadium owners and prove that St. Tammany School Corporation exercised

ordinary care and caution to its spectators. Lastly, this section of the brief will demonstrate that

the district court properly ruled that home plate is the only area of the stadium that poses a high

risk of injury.

A. The Southern District of Tulania should adopt the baseball rule because it is not only a fair standard of care to hold stadium owners accountable, but it also represents good public policy

For decades America’s pastime has subjected its spectators to the inherent risks of being

injured by errant balls. In response to such risks, the majority of jurisdictions have adopted an

exception to the ordinary tort doctrines, which is illustrated above. The reasoning behind such

precedent is that no one of ordinary intelligence could see many innings of a baseball game

without realizing that batters cannot and do not control the direction of the ball. Swagger v. City

of Crystal, 379 N.W.2d 183, 185 (Minn. Ct. App. 1985). In other words, the probability of foul

balls entering stadium stands in unscreened areas is “common knowledge.” Neinstein v. Los

 

11

Angeles Dodgers, Inc., 229 Cal. Rptr. 612, 616 (Cal. Ct. App. 1986). Furthermore, there is a

value in having most seating unprotected by a screen because baseball fans generally want an

unobstructed view of the field. One reason for the unobstructed view is the opportunity to come

in contact with a foul ball. Fans often greet foul balls and home runs with roars as they dive over

walls and rows of seats, risking life and limb, for the thrill of triumphantly claiming the errant

ball. Maisonave v. Newark Bears Professional Baseball Club, Inc., 881 A.2d 700, 706 (N.J.

2005).

The Supreme Court of Nevada illustrates the risk that stadium owners are exposed to in

states that follow the baseball rule. The court addressed the question of whether a concession

area posed an unduly high risk of injury from foul balls. Turner v. Mandalay Sports Entm't, LLC,

180 P.3d 1172, 1176 (Nev. 2008). In Turner, the plaintiff and her husband left their assigned

seats and walked to the concession area. Id. While sitting down and eating her sandwich, she

was struck by a foul ball. Id.

After examining the record, the court noted that foul balls occasionally flew into the

concession area and that some parts in fact do have an obstructed view of the field. Id. at 1176.

However, the court reasoned that the risk of an occasional foul ball did not amount to an unduly

high risk of injury. Id at 1176. Therefore, the court held that the baseball rule encompassed the

entire duty owed by stadium owners-operators to protect spectators from foul balls. Id. at 1175.

However, in a case of first impression, the New Jersey Supreme Court examined the

baseball rule. The plaintiff in Maisonave was injured when a foul ball struck him as he was

 

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purchasing a beverage in the concession area. 881 A.2d at 702. The district court granted

summary judgment, but the appellate division reversed and remanded holding that strictly

providing netting behind home plate did not immunize stadium owners from liability. Id. at 704.

Therefore, the New Jersey Supreme Court was faced with the question of what is the

scope of the duty that the owners and operators of baseball stadiums owe to their patrons. Id. at

705. Ultimately, the court decided to follow the limited duty doctrine, which protected stadium

owners when they were in the stands (included the stairs that fans ascend and descend to access

their seats). However, the court failed to extend the rule to apply when spectators were near the

restroom or concession area. Id. 707. Therefore, the court held that the business invitee rule

should apply to all other areas of the stadium, which provided that a landowner “owes a duty of

reasonable care to guard against any dangerous conditions on his or her property that the owner

either knows about or should have discovered. Id. at 709.

Nonetheless, this Court’s approval of the longstanding baseball rule is pivotal to the

future of the game that was once and still is America’s pastime. Rejecting the baseball rule

would force baseball stadium owners to do one of two things. One option would be to place all

spectator areas behind a protective screen. However, taking this action would reduce the quality

of everyone's view. Furthermore, this option would change the very nature of the game of

baseball because players are often able to reach into the spectator area to catch foul balls. The

second option would be to continue the status quo and increase the price of tickets to cover the

cost of compensating injured persons. However, this could result in fans of paltry means to be

 

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priced out of enjoying the great game of baseball. Consequently, the future of the game will be

significantly eroded if stadium owners are not afforded some special protection. Accordingly,

this court should adopt the baseball rule because it favors a fair and sound public policy to not

only stadium owners, but also its spectators.

B. Requiring stadium owners to screen the high-risk areas of a stadium provides greater specificity that the ordinary standard of care requirement does not address

The baseball rule gives stadium owners a blueprint to follow in order to adequately

protect its fans as well as to protect themselves from liability arising from unreasonable risks.

Therefore, the School Corporation exercised ordinary care and prudence in continuing to keep

Jesuit Stadium reasonably safe for spectators because it offered protective seating and warned

spectators of the risks of errant balls leaving the park.

The requirement that stadium owners exercise ordinary care by providing screened

seating behind home plate is an evenhanded condition because it holds stadium owners

accountable. Typically, the duty owed by owners and possessors of land depends on whether the

person injured is classified as an invitee, licensee, or trespasser. Ball v. City of Blackfoot, 273

P.3d 1266, 1270 (Idaho 2012). An invitee “is one who enters upon the premises of another for a

purpose connected with the business conducted on the land.” Id. at 1270. A landowner “owes an

invitee the duty to keep the premises in a reasonably safe condition, or to warn of hidden or

concealed dangers.” Id.

The baseball rule does not ignore or abrogate usual premise liability principles. Benejam

v. Detroit Tigers, Inc., 635 N.W.2d 219, 223 (Mich. Ct. App. 2001). In Benejam, the plaintiff

 

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was injured when a player’s bat broke and a fragment of the bat curved around the protective

netting. Id. at 220. The plaintiff brought this action under the tort doctrine of premise liability

alleging that the defendant failed to exercise ordinary care and prudence in maintaining the

premises reasonably safe for invitees like the plaintiff. Id. at 221.

However, in ruling in favor of the defendant, stadium owner, the court held that the

baseball rule identifies the duty of baseball stadium owners with greater specificity than the

usual “ordinary care/reasonably safe” standard. Id. at 223. Nonetheless, the court was clear to

note that the limited duty precedents did not eliminate the stadium owner’s duty to exercise

reasonable care under the circumstances to protect patrons against injury. Id. Furthermore, the

court determined that the limited duty doctrine established the “outer limits” of liability and

“thereby prevents a jury from requiring a stadium owner to take precautions that are clearly

unreasonable. Id. Ultimately, the court reasoned that the baseball rule prevented “burgeoning

litigation” that could have resulted in the downfall or substantial alteration of America’s past

time as a spectator sport. Id.

Furthermore, warning spectators of the possible dangers inherent to the game of baseball

has not been ruled to be necessary in order for stadiums to provide ordinary care to its customers.

The Missouri Supreme Court and the Arizona Court of Appeals have indicated that warning

spectators of the inherent dangers that encompass the sport of baseball is not a necessity to avoid

liability because people should be aware of such dangers. Bellezzo v. State, 851 P.2d 847, 852

(Ariz. App. 1992); Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 173 (Mo. 1950).

 

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The Arizona Court of Appeals cites to a great illustration by its Supreme Court that refers to the

open and obvious nature of being struck by a foul ball. Id. at 852. The Arizona Supreme Court

stated:

One may say as a matter of law that the government would not be negligent in failing to post a sign warning visitors to the Grand Canyon that it is a long way to the bottom and those who stand too close to the edge may lose their balance, fall and get hurt.

Markowitz v. Arizona Parks Bd., 706 P.2d 364, 369 (Ariz. 1985). In Bellezo, the Arizona Court

of Appeals reasoned that a similar observation applies to the failure of an owner of a baseball

park to post a sign warning fans that no screen protects them from the obvious risks of foul balls

if they are in an unscreened area. 851 P.2d at 852. The court of appeals notes, “the lack of a

screen is as obvious as the fact that the Grand Canyon is a chasm, and the danger that a spectator

hit by a foul ball is as evident as the likelihood that one who falls into the Grand Canyon may be

hurt.” Id. at 852. Moreover, the Missouri Supreme Court, in Anderson, presented with a similar

set of facts reasoned that it would have been absurd, and undoubtedly resented by patrons, if the

ticket seller, or other employees, had warned each person entering the ballpark that he or she

would be at risk of being struck by a baseball in unscreened areas. 231 S.W.2d at 173.

In the present case, the facts indicate that the School Corporation exercised ordinary care

in providing screened seating behind home plate to all those that desired to be protected.

Furthermore, the fact that the School Corporation provided an abundance of warnings about the

inherent dangers of errant foul balls further strengthens its position that they exercised more than

ordinary care in trying to protect spectators from possible injuries. The facts are undisputed that

 

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Ms. Amendola was a baseball fan that had been to many games in her lifetime. Therefore, she

understood the risk of being hit by a foul ball. There was no evidence presented that Ms.

Amendola desired protected seating. Consequently, the court should conclude that the screening

provided by the School Corporation was sufficient. The court reaching such a conclusion would

affirm the belief that the baseball rule is a sound exception to the conventional tort doctrines.

C. The baseball rule should be adopted in the present case because the bathroom and the concession area are not highly dangerous sections of the stadium

The probability of foul balls entering stadium stands in unscreened areas is “common

knowledge.” Neinstein, 229 Cal. Rptr. at 616. The New York Court of Appeals has addressed

the issue of areas that pose a high risk of injury in baseball stadiums. Akins v. Glens Falls City

Sch. Dist., 424 N.E.2d 531, 531 (N.Y. 1981). In Akins, while attending a high school baseball

game, the appellee was injured when a foul ball struck her, while seated down the third baseline.

Id. at 532. At the outset of the opinion, the court reasoned that a stadium operator was not an

insurer of the safety of its spectators. Id. at 533. The court held that in order to exercise

reasonable care, the stadium owner needed only to screen the area behind home plate, which was

the area of greatest risk to spectators. Id. However, the court noted that all risk is not simply

eliminated by screening behind home plate. Id. at 534. Rather, even after exercising reasonable

care, some risk of being struck by a foul ball remained. Id. The court’s rationale behind this

ruling was that the risks of the game of baseball were not so imminent that due care required an

owner to screen the entire playing field. Id. Therefore, the stadium owner was not negligent in

failing to provide screening along the baselines.

 

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In present and future cases, the bathroom/concession area should not be found to pose an

unduly high risk of injury because such incidents of spectators being injured by foul balls in that

area have not repeatedly occurred in the past. The plaintiff contends that the bathroom and

concession area should be screened. However, like mentioned above, an owner of a baseball

field does not provide protection against all injuries that may take place at any given ballpark.

The perils of the game of baseball are not so imminent that due care requires the owner to screen

the entire field. Even screening the area of the field where the incidence of foul balls is the

greatest will not completely eliminate all risks involved in viewing the game.

In the present case, the School Corporation adequately provided protection to spectators

who chose to sit behind home plate. The School Corporation should not be held liable for failing

to screen other areas of Jesuit Stadium because some risk of being struck by foul balls will

continue to exist. Therefore, the baseball rule is the constructive rule that should apply to this

case because it leaves the baseball stadium owner free, without fear of liability, to accommodate

the majority of fans who prefer unobstructed and insulated contact with the game.

 

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CONCLUSION

For the foregoing reasons, the Defendants respectfully request that this Court reverse the

appellate court’s finding that the Haircut Policy violates the Plaintiff’s due process and equal

protection rights under the Fourteenth Amendment. The Defendants further respectfully request

that this Court reverse the appellate court’s failure to adopt the “universal” baseball rule.