A.A. Ex Rel. Betenbaugh v. Needville Independent School District

Case: 09-20091 Document: 00511168336 Page: 1 Date Filed: 07/09/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 9, 2010

No. 09-20091 Lyle W. Cayce
Clerk

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

Appeal from the United States District Court
for the Southern District of Texas

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
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.
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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

1
Needville Independent School District.
2
When appellees filed this suit, Arocha’s application for membership in the tribe was
still pending. Both the appellees’ brief and the amicus curiae brief of the Lipan Apache Tribe
indicate that application has now been accepted. Though the record on appeal has not been
updated to reflect this development, we take the tribe at its word as to administrative
matters—such as tribal membership—that are within its unilateral discretion. And, in any
event, tribe membership or lack thereof does not materially affect our analysis. See Frazee v.
Illinois Dept. of Employment Sec., 489 U.S. 829, 833 (1989) (explaining that “[u]ndoubtedly,
membership in an organized religious denomination . . . would simplify the problem of
identifying sincerely held religious beliefs,” but that a belief is no less sincere just because the
individual is not “responding to the commands of a particular religious organization”).

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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 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

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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

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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 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

3
Betenbaugh stated in her e-mail: “My four year old son will start school next year at
Needville Elementary. He is of native american [sic] descent and has long hair. Will this be
a problem and what kind of documentation will be needed to prove his heritage?”
4
The e-mail reads in relevant part: “[M]y husband and therefore my son are of native
american [sic] descent. Both of them have long hair in accordance with their heritage. Will
this be a problem and how will it be addressed?”
5
42 U.S.C. § 1996.

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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 a dress code exemption
could be decided and Rhodes had denied the family’s initial request
notwithstanding this apparent residency requirement.

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III
The family accelerated its efforts to move to Needville. The District
informed them that mere residency was not enough and that they could only
apply for an exemption once A.A. actually enrolled in school. This time the
District required the family to complete a newly created “exemption form,” which
purported to require documentary evidence of the family’s membership in “a
recognized church or religious organization whose tenets and practices conflict.” 6
Using the form, the family responded to the District’s objection to long hair,
requesting that A.A. be exempted from any policy that “would require him to cut
his hair”:
[A.A.] has a sincerely held religious belief—as do many Native
Americans—that his long hair is not only an expression of his ancestry
and heritage, but also a sacred symbol of his life and experience in this
world, and that it should be cut only to mark major life events such as the
death of a loved one. [A.A.] has learned these religious beliefs from his
father, who shares the same ancestry, heritage, and beliefs.

The exemption form also stated that A.A.’s hair had never been cut. His
exemption request pending, A.A. enrolled in Needville Elementary in August
2008, with school set to start in two weeks’ time.
Superintendent Rhodes denied the family’s second exemption request less
than a week later and Arocha and Betenbaugh again submitted an appeal to the

6
This “exemption form,” though not specifically at issue here, suffers from its own
constitutional difficulties, as the District seems to have acknowledged in a letter to the
family’s counsel on August 18, 2008. See, e.g., Frazee v. Ill. Dept. of Employment Sec., 489 U.S.
829, 834 (1989) (rejecting “the notion that to claim the protection of the Free Exercise Clause,
one must be responding to the commands of a particular religious organization”); id. at 831
(rejecting a lower court’s requirement that the asserted religious belief “be found in a tenet or
dogma of an established religious sect”) (internal quotation marks omitted). The District had
never before used this exemption form.

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school board. Their appeal notice indicated that (1) although Arocha had not yet
gained membership in a particular Native American tribe, his DNA indicates he
is biologically descended from Native Americans; (2) Arocha learned of his
heritage through his grandfather and uncle, he believes he is descended from the
Lipan Apaches, and he was collecting the required genealogical records to apply
for tribal membership; (3) Arocha had not cut his hair for ten years, even risking
termination from a job and maintaining his braids during a month-long stay in
the hospital; and (4) A.A.’s hair had never been cut.
The school board convened a hearing on the exemption request a few days
later. Before the meeting began, Rhodes met privately with the family. It was
at this point that Rhodes first learned that Arocha had kept his braids even
during brain surgery. Finding this compelling evidence of Arocha’s sincerity,
Rhodes offered to allow A.A. to wear his hair in a bun on top of his head as a
compromise, moving the discussion away from hair length. A.A. and his family
rejected the offer.
The school board meeting began in plenary session. The family, who was
now represented by counsel, spoke about the facts and the law in support of an
exemption. After the family’s presentation, the board met in an executive
session closed to the public and to the family. In that session, the board
consulted with Superintendent Rhodes who urged the adoption of a new
exemption that would permit A.A. to wear his hair long “in a tightly woven
single braid down his back with the hair behind his ears, out of his eyes and the
braid tucked into the collar of his shirt.” He had formulated some version of this
exemption before his earlier meeting with the family but had not mentioned it
to them. The board adopted Rhodes’s suggestion.

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The board then returned to the meeting’s plenary session, where board
member Kim Janke announced the decision to the public. She expressed
hesitation: “[a]lthough I disagree with the law presented in this case and
understand and support why Mr. Rhodes made the decision that he made, I
move that the Board grant the [tucked braid exemption].”
There is no school district policy that prohibits a female student from
wearing two braids instead of one, or that requires her to tuck in her long hair.
The District has granted the only other religious exemption request it has
received to date, allowing a Muslim girl to wear a headscarf.

IV
Prior to the school board meeting, Arocha and Betenbaugh had alerted the
school district that they would seek an injunction in federal court and the
District had agreed “not to discipline [A.A.] until the soonest of the following
occurs, the student receives an injunction to prevent his compliance from the
dress code or September 22, 2008.” A few days later, the District stated that its
understanding of the agreement was that any grace period would only be
triggered if the District “did not grant A.A. an exemption by August 20, 2008.”
Because the District had granted an exemption in some form, in its view no
disciplinary grace period was in effect.
When A.A. began kindergarten on August 25 he wore his hair in two long
braids. That day, the District informed Arocha and Betenbaugh that A.A. would
need to comply with one of the exemptions by September 2 or discipline would
be imposed. He did not comply, so on September 3, A.A. was placed in in-school
suspension where he received one-on-one instruction and thirty minutes of

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recess a day. During in-school suspension he was not allowed to socialize with
other children.
This continued until the family filed suit and the district court entered a
temporary restraining order one month later on October 3, allowing A.A. to
return to class and wear his hair as he wanted. Before the district court, the
family alleged that the District’s policy violates (1) A.A’s rights to free exercise
of religion under the First and Fourteenth Amendments; (2) similar rights under
the Texas Religious Freedom Restoration Act; (3) A.A.’s rights to free expression
under the First and Fourteenth Amendments; and (4) Arocha and Betenbaugh’s
Fourteenth Amendment due process right to raise A.A. according to their Native
American religion and heritage. During the litigation and responsive to the bun
or tucked braid requirement, Arocha expressed religious significance in braiding
his long hair. As the district court found, Arocha “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.’” The court explained that “[h]e 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.” Arocha says that braids should be worn
“in plain sight” and that “each braid has its own significance and . . . that’s the
way it should be presented.”
The family sought declaratory and injunctive relief pursuant to § 1983 and
Texas law.7 The District conceded that A.A. has a right to some form of
exemption from its grooming policy, but argued that either of the two proffered
options—a single “tightly woven” braid tucked behind A.A.’s shirt or a bun on top
of his head—would be legally sufficient. The district court found for the family

7
TEX . CIV . PRAC . & REM . CODE § 110.005.

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on all four grounds and issued a permanent injunction against the District
preventing the grooming policy’s application to A.A.8 The District timely
appealed to this court.

V
Because we do not decide constitutional claims when a case can be footed
on alternative grounds,9 our analysis begins with state law—specifically, the
Texas Religious Freedom Restoration Act.
That act—often abbreviated as TRFRA—prevents any government agency
in Texas from “substantially burden[ing] a person’s free exercise of religion”
unless it “demonstrates that the application of the burden to the person . . . is in
furtherance of a compelling governmental interest; and . . . is the least
restrictive means of furthering that interest.”10 While this court under TRFRA
“must accept the trial court’s fact findings supported by the evidence, the
ultimate answers determine the legal rights protected by the Act and are thus
matters of law.”11 “A district court’s legal conclusions at a bench trial are
reviewed de novo and its findings of facts are reviewed for clear error.” 12

8
A.A. ex rel. Bettenbaugh v. Needville Indep. Sch. Dist., ___ F. Supp. 2d ____, 2009 WL
6318214 (S.D. Tex. 2009). The parties agreed, pursuant to FED . R. CIV . P. 65(a)(2), to
consolidate the trial on the merits with the preliminary injunction hearing.
9
Nw. Austin Mun. Util. Dist. No. One v. Holder, ___ U.S. ____, ____, 129 S. Ct. 2504,
2513 (2009) (“[T]he Court will not decide a constitutional question if there is some other
ground upon which to dispose of the case.”) (internal marks and citations omitted).
10
TEX . CIV . PRAC . & REM . CODE § 110.003(a), (b).
11
Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009).
12
Adkins v. Kaspar, 393 F.3d 559, 563 (5th Cir. 2004).

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Texas did not enact TRFRA on a clean slate. The act is a response to a
twenty-year federal kerfuffle over the level of scrutiny to apply to free exercise
claims under the First Amendment of the United States Constitution. Nine
years before TRFRA’s enactment, the Supreme Court held, in Employment
Division, Department of Human Resources of Oregon v. Smith, that the First
Amendment’s Free Exercise Clause does not inhibit enforcement of otherwise
valid laws of general application that incidentally burden religious conduct.13
Responding to Smith, Congress enacted the Religious Freedom Restoration Act
of 1993 (RFRA).14 RFRA expressly adopted the compelling interest test as set
forth in a pair of Supreme Court cases,15 Sherbert v. Verner 16 and Wisconsin v.
Yoder.17 That test “prohibits ‘[g]overnment’ from ‘substantially burden[ing]’ a
person’s exercise of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden ‘(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.’” 18
As originally enacted, RFRA applied to both federal and state
governments, “but notably lacked a Commerce Clause underpinning or a

13
494 U.S. 872, 874, 890 (1990).
14
107 Stat. 1488, 42 U.S.C. § 2000bb et seq.
15
42 U.S.C. § 2000bb(b)(1).
16
374 U.S. 398, 399–402 (1963).
17
406 U.S. 205, 221–29 (1972).
18
City of Boerne v. Flores, 521 U.S. 507, 515–16 (1997) (quoting 42 U.S.C. § 2000bb-1;
brackets in original).

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Spending Clause limitation to recipients of federal funds.”19 In City of Boerne v.
Flores, the Supreme Court invalidated RFRA as applied to the states and their
subdivisions, finding that Congress had exceeded its remedial power under the
Fourteenth Amendment to delineate the scope of constitutional violations.20
Congress again responded. This time it enacted the Religious Exercise in
Land Use and Institutionalized Persons Act of 2000 (RLUIPA),21 which “is
largely a reprisal of the provisions of . . . RFRA,” though “its scope is limited to
laws and regulations that govern (1) land use and (2) institutions such as prisons
that receive federal funds.” 22
Unhappy with the federal government’s solution, thirteen states took
matters into their own hands, including Texas, which enacted TRFRA to
“provide[] the same protections to religious free exercise envisioned by the
framers of its federal counterpart, RFRA.”23 In other words, TRFRA provides
protections to religious freedom “in addition to the protections provided under
federal law” and the Texas and United States constitutions.24 Because TRFRA
and its federal cousins—RFRA and RLUIPA—“were all enacted in response to
Smith and were animated in their common history, language and purpose by the

19
Cutter v. Wilkinson, 544 U.S. 709, 715 (2005).
20
521 U.S. at 532–36.
21
Pub. L. No. 106-274, § 7, 114 Stat. 803, 806 (2000) (codified at 42 U.S.C. § 2000bb-
2(1)–(2) (2006)).
22
See Adkins, 393 F.3d at 657.
23
Merced v. Kasson, 577 F.3d 578, 587 (5th Cir. 2009) (citing Barr, 295 S.W.3d at 296).
24
TEX . CIV . PRAC . & REM . CODE § 110.009(b).

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same spirit of religious freedom,” Texas courts “consider decisions applying the
federal statutes germane in applying the Texas statute.” 25
Last year, in Barr v. City of Sinton, the Texas Supreme Court applied
TRFRA for the first time.26 Barr centered on a local pastor who ran a religious
halfway house to help non-violent offenders reenter society. The halfway house
was “religious” in part because applicants were required to sign a statement of
Christian faith and agree to a list of “biblical guidelines for Christian living.” 27
The pastor sued in state court after the city in which he lived passed zoning
ordinances effectively banning halfway houses altogether.28 Justice Hecht,
writing for the Texas Supreme Court, concluded that the city’s ordinance
violated TRFRA.
Justice Hecht also set out the statutory text in four familiar elements. To
succeed on a claim under TRFRA, a plaintiff must demonstrate (1) that the
government’s regulations burden the plaintiff’s free exercise of religion and (2)
that the burden is substantial. If the plaintiff manages that showing, the
government can still prevail if it establishes that (3) its regulations further a
compelling governmental interest and (4) that the regulations are the least
restrictive means of furthering that interest.29

25
Barr, 295 S.W.3d at 296.
26
Id.
27
Id. at 290.
28
Id. at 291–92.
29
Merced, 577 F.3d at 588 (citing id. at 300). See also TEX . CIV . PRAC . & REM . CODE §
110.003(a), (b); Barr, 295 S.W.3d at 307 (“Although TRFRA places the burden of proving a
substantial burden on the claimant, it places the burden of proving a compelling state interest
on the government.”).

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VI
To succeed in their TRFRA claim, then, A.A. and his parents must first
outline the scope of A.A.’s “free exercise of religion.” TRFRA defines “free
exercise of religion” as “an act or refusal to act that is substantially motivated
by sincere religious belief.”30 In examining a putative religious belief under
TRFRA, “it is not necessary to determine that the act or refusal to act is
motivated by a central part or central requirement of the person’s sincere
religious belief.”31 “Not only is such a determination unnecessary, it is
impossible for the judiciary.”32
The district court found that A.A. and Arocha “have a sincerely held belief
that their hair should be worn long.”33 The family contends that this finding
recognized a belief in wearing hair visibly long. The District agrees that A.A.
has a sincere religious belief in leaving hair uncut, but argues that the evidence
demonstrates that there is no sincere belief in wearing hair visibly long,
essentially that the District can require him to wear his uncut hair in ways that

30
TEX . CIV . PRAC . & REM . CODE § 110.001(a)(1).
31
Id.
32
Barr, 295 S.W.3d at 300.
33
The family’s expert, Dr. James Riding In, testified that Native Americans were
historically forced to conceal their beliefs in order to protect themselves from persecution. In
the late nineteenth and early twentieth centuries, the United States imposed assimilationist
policies, which “sought to stamp out the traditional spirituality of the Indian people” and
subjected Native American children to “forced haircuts.” At the same time, federal regulations
“criminalized Indian spirituality.” Dr. Riding In testified that Arocha’s experience is not
uncommon; because of the attempts at forced assimilation, Native Americans are not always
aware that they are even Native American, and many are only now attempting to reclaim their
lost religion and culture. Like Arocha and A.A., other Native Americans attach religious
significance to both wearing hair long and only cutting hair for certain reasons because “[t]hey
feel long hair is an expression of their spirituality.”

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best conform his appearance to that of male students who cut their hair to meet
dress code requirements.34 We focus on A.A.’s putative religious belief in
wearing his hair in a manner that does not conceal its expressive length.
As a starting point, the District concedes that some Native Americans
keep their hair long and in braids as a tenet of their sincere religious beliefs.35
It instead emphasizes the fact that other Native Americans fasten their long
hair in buns or otherwise obscure their hair so that it is not visibly long. If those
Native Americans can comply with their religious beliefs in that way, the
District asserts that A.A. can, too.
“The Fifth Circuit has had few occasions to conduct this part of the
inquiry, as the sincerity of a religious belief is not often challenged.” 36 When
sincerity is challenged, though, courts are reticent to draw the sort of line the

34
This has not always been the District’s position. As Superintendent Rhodes
explained at the second board meeting, he did “not believe” at the time “that the mere
statement that ‘many Native Americans’ subscribe to this belief is sufficient to merit an
exemption for [A.A.]. Nowhere in the exemption does A.A. claim a certain tribal heritage, nor
is it clear whether a particular or heritage subscribes to a religious belief centered around the
cutting of one’s hair.”
35
See Diaz v. Collins, 114 F.3d 69, 72 (5th Cir. 1997) (recognizing the “strong
significance of long hair in Native American belief”); id. at 73 n.18 (“The record reveals that
the Native America custom regarding long hair, while in some part cultural, has strong
religious implications. Hair is only supposed to be cut as a sign of grieving for the recently
dead, and shorn locks are often placed with the deceased so that they may be carried into the
afterlife.”); Teterud v. Burns, 522 F.2d 357, 360–61 (8th Cir. 1975) (Native American inmate’s
belief that hair should be kept long was sincerely held religious belief under First
Amendment); Alabama & Coushatta Tribes v. Trustees of Big Sandy Indep. Sch. Dist., 817 F.
Supp. 1319, 1326 (E.D. Tex. 1993) (Native American students’ belief that hair should be kept
long was sincerely held religious belief under First Amendment); Gallahan v. Hollyfield, 516
F. Supp. 1004, 1006 (E.D. Va. 1981), aff’d, 670 F.2d 1345 (4th Cir. 1982) (Native American
inmate’s belief that hair should be kept long was sincerely held religious belief under First
Amendment).
36
McAlister v. Livingston, 348 F. App’x 923, 935 (5th Cir. Oct. 6, 2009) (unpublished).

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District now requests. In Thomas v. Review Board of Indiana Employment
Security Division,37 Thomas, a Jehovah’s Witness, had requested a layoff from
his manufacturing job and unemployment benefits after being transferred to a
foundry that supplied military armaments because the work violated his
religious principles.38 The Indiana Supreme Court called the choice a “personal
philosophical” one, citing inconsistencies in the plaintiff’s explanation of his
beliefs, his practice of them, and the fact that other Jehovah’s Witnesses testified
that working on armaments was “scripturally acceptable.”39 The Supreme Court
reversed, explaining that when a plaintiff draws a line, “it is not for the Court
to say it is an unreasonable one.”40
Thomas made plain that “the guarantee of free exercise is not limited to
beliefs which are shared by all of the members of a religious sect.”41 This insight
recognizes that “[i]ntrafaith differences . . . are not uncommon among followers
of a particular creed,” and that “the judicial process is singularly ill equipped to
resolve such differences.”42 The District’s proffered anecdote—that other Native
Americans do not do as A.A. does—is thus unpersuasive in our analysis, no
matter how true. Sincere religious belief cannot be subjected to a judicial
sorting of the heretical from the mainstream—certainly not in discharge of duty

37
450 U.S. 707 (1981).
38
Id. at 710–11.
39
Id. at 715.
40
Id.
41
Id. at 715–16.
42
Id.

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to faithfully apply protections demanded by law.43 Efforts to that end would put
at risk the protection that the First Amendment and TRFRA are meant to
provide.
Thomas does not, however, “relieve a complaining adherent of the burden
of demonstrating the honesty and accuracy of his contention that the religious
practice at issue is important to the free exercise of his religion.”44 On this score,
the District argues that A.A. and his parents have put forth shifting
explanations of A.A.’s religious belief, first focusing on the cutting of hair and
then later on not concealing its expressive length.
We disagree. Despite the family’s articulation of religious belief using
different words at different times, we must refuse to dissect religious tenets just
“because the believer admits that he is ‘struggling’ with his position or because
his beliefs are not articulated with the clarity and precision that a more
sophisticated person might employ.”45 In this case, focusing on evidence of a
“struggle” and limiting A.A.’s religious belief to the cutting of hair would
disregard the salient thrust of the family’s statements of belief from the very
beginning and ignore the sequence of the District’s suggestions to which they
were responding. The family’s first three contacts with the District explained
that A.A. has “long hair” because of his Native American heritage, and one of
these e-mails noted that his hair is kept “clean and neatly braided.” The family
has not limited themselves to that belief, but consistently maintained—as they
explained in their second appeal notice to the school board—that it is the belief

43
See id. at 716 (“Courts are not arbiters of scriptural interpretation.”).
44
Adkins, 393 F.3d at 570.
45
Thomas, 450 U.S. at 715.

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in “long hair” as “an expression of [A.A.’s] ancestry and heritage” that matters.46
A.A. once refused to wear a Halloween costume because it would cover his
braids, and he and his father have both worn their hair in two braids outside
their shirts at every meeting with school officials.
While both the family’s request for exemption and the District’s
requirements can be seen as shifting over time, we see no calculated
gamesmanship by either of them because “[n]ot surprisingly, the record . . . was
not made with an eye to the microscopic examination often exercised in appellate
judicial review.”47 An adherent’s religious beliefs are not rendered insincere
merely because he articulates them differently in response to shifting objections.
An applicant seeking religious exemption is not obliged to provide an accounting
of his beliefs, warrant it as final, and then when subject to public disbelief,
refrain from speaking up to clarify to others who do not share his faith. In sum,
we do not look to efforts to better explain religious beliefs with exacting
incredulity, unless there is reason to do so. Nor do we see the District’s shifts
over the course of the controversy to be evidence of bad faith. A lawsuit of this
ilk is a struggle for all concerned. The exchanges of the parties ultimately
sharpened the intersection of regulation and belief.
Even assuming that the difference between protected wearing of hair
uncut and wearing it visibly long transcends the semantic, A.A. and his parents

46
The District urges that the family’s counsel conceded at trial that any Free Exercise
claim was limited to the cutting of hair. Whatever the meaning of the stray comment, it is
plain from our reading of the record that counsel made no such concession. In fact, counsel
for the family directly stated at trial that because the policy and exemptions would “hide the
length of A.A.’s hair, which is a symbol of his religious beliefs . . . it is also violative of his free-
exercise rights.”
47
Thomas, 450 U.S. at 716.

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have met their burden. On the facts of this case and in light of the longstanding
judicial shyness with line drawing, we decline to confine A.A.’s religious belief
to the cutting of hair but instead agree with the district court that he has
demonstrated a sincere religious belief in wearing his hair uncovered—visibly
long.
The district court found that A.A. believes that his “hair should be worn
long,” and our use of the word “visibly” to describe A.A.’s belief is consistent with
the fairest reading of that finding.48 The word “worn” is, after all, the past
participle of “wear,” which means “to bear or have on the person,” to “exhibit,”
or to “present.”49 And concealing the long hair frustrates its expression.50

48
Contrary to the dissent’s characterization, the district court repeatedly referred to
a religious belief in wearing hair long. See, e.g., A.A., 2009 WL 6318214, at *8 (“The Court
must therefore consider whether Plaintiffs have a sincerely held religious belief that hair
should be worn long.”); id. at *9 (“Plaintiff Arocha claims to follow the Native American
religious practice of wearing his hair long except when mourning a loved one.”); id. at *11
(“The Court therefore finds that Plaintiffs Arocha and A.A. have a sincerely held belief that
their hair should be worn long.”); id. at *12 (“The School Board’s exemption policy burdens
A.A.’s significantly held religious belief that his hair should be worn long.”); id. at *13 (“Even
though the School Board found it necessary to grant A.A. a religious exemption, it did not
extend him this same freedom to wear his long hair in a comfortable, practical manner.”).
49
MERRIAM WEBSTER ’S COLLEGIATE DICTIONARY 1338 (10th ed. 1996).
50
The district court recognized this expressive component when it stated that “[t]he
policy”—referring specifically to the “tucked braid” exemption—“will deny A.A. the opportunity
to express a religious practice that is very dear to him and his father.” A.A., 2009 WL
6318214, at *12. In support of this statement, the district court cited a case rejecting a dress
code exemption that required students to wear rosaries under their shirts because it burdened
“a sincere expression of their religious beliefs.” Id. (citing Chalifoux, 976 F. Supp. at 667)
(internal quotation marks omitted); see Chalifoux, 976 F. Supp. at 670 (finding the students
held a sincere religious belief in “wearing a rosary as a necklace”). The district court also
noted, in considering whether A.A.’s religious belief was substantially burdened, that “[f]emale
children attending [the school district] are allowed to wear their long hair exposed and in two
braids, for purely secular reasons. Even though the School Board found it necessary to grant
A.A. a religious exemption, it did not extend him this same freedom to wear his long hair in
a comfortable, practical manner.” A.A., 2009 WL 6318214, at *12 (emphasis added). Later the

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The district court had “no difficulty finding that some Native American
communities assign religious significance in hair length,” and that Arocha had
shown “that he himself has these ‘deeply held religious beliefs.’” Arocha had
made this showing, the court concluded, not only because he “has not cut his hair
in ten to eleven years” and “[h]is long hair addresses ‘fundamental’ and
‘ultimate’ concerns,” but because “[h]e describes his hair as ‘an outward
extension of who we are and where we come from, our ancestry and where we’re
going in life.’”51 This echoes the district court’s undisputed findings of fact,
which we repeat once again: “[w]hen people ask A.A. why he has long hair, he
tells them it is because he is Native American”; “people ask [Arocha] whether he
is Native American, and he tells them that he is”; “[w]hen Plaintiff Betenbaugh
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”;52 the family’s written exemption request
“stated that ‘A.A. has a sincerely held religious belief—as do many Native
Americans—that his long hair is not only an expression of his ancestry and
heritage, but also a sacred symbol of his life and experience in this world.’” 53

court explained again that—in contrast to A.A.—“female students are allowed to wear their
long hair exposed and in two braids.” Id. at *14.
51
Id. at *11.
52
The district court made each of these findings under the heading “I. Findings of Fact,”
“A. Plaintiffs’ Religious Beliefs.” Id. at *1–2.
53
The district court made this finding under the heading “I. Findings of Fact,” “B.
Plaintiff A.A.’s Enrollment in Needville Independent School District.” Id. at *4.

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Although Thomas may support the conclusion that the scope of A.A.’s
sincere religious belief includes its braiding, we need not decide that question as
the District does not prohibit the braiding of his hair.54

VII
Having demonstrated a sincere belief in wearing visibly long hair, the
family must also show that the District’s policy and proffered exemptions will
substantially burden A.A.’s free exercise of that belief.55 Under TRFRA, a
burden is substantial if it is “real vs. merely perceived, and significant vs.
trivial”—two limitations that “leave a broad range of things covered.” 56 The
focus of the inquiry is on “the degree to which a person’s religious conduct is
curtailed and the resulting impact on his religious expression,” as “measured .

54
As we explain further below, the school has not seriously attempted to instruct
whether A.A.’s long and visible hair must be braided, rather it instructs that it be in a bun or
tucked inside his shirt if braided.
55
To that end, the family urges we adopt for TRFRA the approach we follow in RLUIPA
cases. We crafted our RLUIPA standard in Adkins v. Kaspar, a prisoner case in which we held
that regulation creates a “substantial burden” if it “truly pressures the adherent to
significantly modify his religious behavior and significantly violates his religious beliefs.” 393
F.3d at 570 (defining the term in the analog context of RLUIPA); see also Merced, 577 F.3d 578
(quoting the Adkins rule in the TRFRA context); Barr, 295 S.W.3d at 296 (endorsing the use
of federal case law interpreting RLUIPA in TRFRA cases). Under Adkins, a regulation’s effect
is “substantial” when it either (1) influences the adherent to act in a way that violates his
religious beliefs or (2) forces the adherent to choose between, on the one hand, enjoying some
generally available, non-trivial benefit, and on the other hand, following his religious beliefs.
Adkins, 393 F.3d at 570. Applying Adkins, the district court held that the District’s policy
burdens A.A.’s religious belief in wearing his hair long. Since the district court entered its
order, however, the Texas Supreme Court in Barr declined to explicitly adopt the Adkins test
in favor of its own, more skeletal framework, though it cited Adkins favorably. Barr, 295
S.W.3d at 301.
56
Barr, 295 S.W.3d at 301.

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. . from the person’s perspective, not from the government’s.”57 This inquiry is
“case-by-case” and “fact-specific”58 and must take into account “individual
circumstances.” 59

A
From federal precedent, we know that “at a minimum, the government’s
ban of conduct sincerely motivated by religious belief substantially burdens an
adherent’s free exercise of that religion.”60 When conduct is subject to an
outright ban, “alternative accommodations do not alter ‘the fact that the rituals
which [the adherent] claims are important to him—without apparent
contradiction—are now completely forbidden.’”61 This federal view matches
Barr’s instruction that “a burden on a person’s religious exercise is not
insubstantial simply because he could always choose to do something else.” 62 In
that case, the Texas Supreme Court had “no hesitation” in holding that
prohibiting a pastor from operating his halfway house within city limits was a
“substantial burden” on the pastor’s free exercise of religion.63

57
Id.
58
Merced, 577 F.3d at 588 (citing Barr, 295 S.W.3d 296, 301–02) (internal citations
omitted).
59
Barr, 296 S.W.3d at 308.
60
Merced, 577 F.3d at 590 (examining Supreme Court cases).
61
Newby v. Quarterman, 325 F. App’x 345, 351 (5th Cir. Apr. 30, 2009) (unpublished)
(quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 333 (5th Cir.2009)) (emphasis in
Sossamon).
62
Barr, 295 S.W.3d at 302.
63
Id.

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Requiring A.A. to cut his hair—a total ban of conduct—would also likely
constitute a substantial burden.64 But that is not what the District’s proposed
exemptions require so the bar is incomplete. Whereas forceably cutting his hair
would limit his free exercise at all times, the exemptions permit the District to
control A.A.’s hair only while he is at school. At home he may wear his hair
however he likes.
When a restriction is not completely prohibitive, Texas law still considers
it substantial if “alternatives for the religious exercise are severely restricted.” 65
Together with Barr’s other prescriptions, that means a burden imposing a less-
than-complete ban is nonetheless substantial if it curtails religious conduct and
impacts religious expression to a “significant” and “real” degree.66 Here, that
standard is met.

B
First, the burden on A.A. is significant. The exemptions place a direct
burden on A.A.’s religious conduct and expression by, as the district court put it,

64
Under RFRA, we explained that a prison’s grooming regulations “legitimately may
be deemed to work” a substantial burden on a Native American’s religious practice by
preventing him from wearing long hair as required by his religion. Diaz, 114 F.3d at 72–73.
We nonetheless upheld the regulations because they furthered a compelling state interest. Id.
at 73. See also Longoria v. Dretke, 507 F.3d 898, 903 (5th Cir. 2007) (finding a genuine issue
of material fact as to the same “substantial burden” question under RLUIPA). The District
distinguishes Diaz by noting that the policy on its face does not require that A.A. cut his hair,
nor does the policy as modified by the exemption; instead, the policy as applied to A.A.
requires that long hair be tied in a bun or placed in one braid and worn under a shirt. It is not
clear from Diaz whether the prisoner was in jeopardy of a haircut or would have been allowed
to keep his long hair but with other restrictions on how he could wear it.
65
Barr, 295 S.W.3d at 305; see also Merced, 577 F.3d at 590 (quoting id.).
66
Barr, 295 S.W.3d at 301.

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“deny[ing] A.A. the opportunity to express a religious practice that is very dear
to him and his father.” While the District’s policy and exemptions do not
completely bar A.A.’s free exercise, the bar is complete in the sense that he
cannot wear his hair visibly long at all during the school day, a critical period of
time in a young child’s development.67 The stricture will define his days as a
student. As other courts have recognized in analogous contexts, depriving
children of religious exercise during the school day is a significant burden. In
Cheema v. Thompson, a RFRA case, the Ninth Circuit found a substantial
burden because a school regulation prevented Sikh children from bringing
ceremonial knives to school, despite the school’s agreement to allow shorter
knives riveted to their sheaths.68 Likewise, the Southern District of Texas, in
Chalifoux v. New Caney Independent School District, found a sufficient burden
to support a free exercise claim when Catholic students were required to wear

67
In Diaz, we held that a Native American prisoner had failed to demonstrate that
prison regulations preventing him from wearing a medicine pouch and headband for up to two
hours a day worked a substantial burden because “[n]othing in the record” suggested that the
prisoner’s beliefs, “however fervently held, compel him to wear a medicine pouch or headband
at all times[.]” 114 F.3d at 72. As this statement suggests, our focus in that RFRA case was
twofold: first, we asked whether the beliefs “compel[led]” the prisoner’s religious conduct and
then we questioned whether the belief was a “central tenet.” Id. The Texas Supreme Court
has disavowed the former inquiry, Barr, 295 S.W.3d at 301, while TRFRA itself expressly
forbids the latter. TEX . CIV . PRAC . & REM . CODE § 110.001(a)(1). And, while that is enough to
distinguish that case from this one, there are of course factual differences, too: A.A. is a school
child not an adult prisoner, the length of his deprivation is longer and at a more critical part
of the day, and his religious belief is attached to his person, not an object.
68
67 F.3d 883, 885 (9th Cir. 1995) (unpublished) (holding that a school’s ban on
ceremonial knives worn by some Sikhs violated RFRA). Though agreeing on the issue of
substantial burden, one judge dissented from the majority’s holding that the school had failed
to demonstrate a compelling interest. Id. at 889 (Wiggins, J., dissenting) (agreeing with the
majority on the issue of substantial burden stating “[i]t is clear that the District’s no-knives
policy, even with the District’s suggested compromises, substantially burdens free exercise of
their religion”).

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their rosaries under their shirts.69 In the present case, because the District’s
exemptions directly regulate a part of A.A.’s body and not just a personal
effect—like a knife or a rosary—the burden on A.A.’s religious expression is
arguably even more intrusive.
The exemptions would also indirectly burden A.A.’s religious conduct and
expression. If A.A. complies with either of them, he will stand out as someone
subject to official stigma. If he does not, he will be exposed to punishment. The
district court believed these “terms of existence” would force A.A. to choose
between attending Needville public schools and following his religious beliefs.

C
Not only is the burden on A.A. significant, it is real. As the district court
found, A.A. has already recognized that he has been treated differently because
of his hair. And, given that A.A. understands that his hair is part of the practice
and expression of his Native American beliefs, the obvious lesson is that he is
being treated differently because of his religion. This recognition risks feelings
of shame and resentment, a risk that, while real now, will continue to grow.
A.A. will also be subject to constant threat of punishment should his hair fall out
of a bun, or escape his shirt. This threat is real.

69
976 F. Supp. 659, 671 (S.D. Tex. 1997) (relying on Yoder’s “undue burden”
formulation).

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VIII
“To say that a person’s right to free exercise has been burdened, of course,
does not mean that he has an absolute right to engage in the conduct.”70 TRFRA
permits the regulation of free exercise if the government can establish a
compelling interest that justifies the burden,71 and that it has adopted the least
restrictive means of achieving that interest.72 “Because religious exercise is a
fundamental right . . . justification can be found only in ‘interests of the highest
order.’” 73
On these counts, the District’s amicus, the Texas Association of School
Boards Legal Assistance Fund takes the lead. The Fund argues that the
District’s grooming policy is supported by five goals: to teach hygiene, instill
discipline, prevent disruption, avoid safety hazards, and assert authority. The
Fund relies on a handful of Texas cases that find these interests sufficient to
overcome challenges to student and teacher dress codes. From this precedent,
the Fund would extract a principle that “maintaining order in a school [is] a

70
Barr, 295 S.W.3d at 305 (quoting Smith, 494 U.S. at 894 (O’Connor, J., concurring
in the judgment)) (internal quotation marks omitted).
71
Id. at 306.
72
TEX . CIV . PRAC . & REM . CODE § 110.003(a), (b); see also Boerne, 521 U.S. at 534
(RFRA). TRFRA does include an exception to its least restrictive means requirement, allowing
a government agency to remedy a substantial burden on free exercise using “narrowly tailored”
means to remove that burden. TEX . CIV . PRAC & REM . CO D E § 110.003 (d)(2). The District
contends that its proposed exemptions are two such “remedies” and thus the District need only
demonstrate they are “narrowly tailored” to their interest. This argument is misplaced.
Narrowly tailored means must in any event “cure[]” the substantial burden. Id. at § 110.003
(d)(3). As we have seen, the proposed exemptions are not remedies at all because they do not
remove the substantial burden on A.A.’s free exercise. TRFRA’s remedial exception does not
apply to the District’s half measures.
73
Barr, 295 S.W.3d at 306 (quoting Yoder, 406 U.S. at 215).

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compelling state interest” that always justifies hair and clothing regulation no
matter the constitutional interest. This principle is not the law.
While the advanced scholastic concerns are no doubt legitimate,74 the
Fund’s argument suffers from two critical defects. Most important, none of the
decisions on which the Fund relies considered a challenge to a school regulation
that merits strict scrutiny—as A.A.’s challenge under TRFRA plainly does. The
Fund identifies lawsuits asserting a student’s interest in liberty under the due
process clause of the Fourteenth Amendment;75 the right to be free from
discrimination based on gender under federal law’s Title VII,76 under the equal
protection clause of the Fourteenth Amendment,77 and under state-law equal
protection provisions;78 and the right to free expression under the First
Amendment.79 These challenges did not require the government to demonstrate
a compelling interest as the District must do here. Rather, we upheld each of

74
We have held, for example, that “interests in the health, safety, and order of public
schools are sufficient government interests” to justify inroads into a student’s free expression
right to choose his own clothing, Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 286 (5th
Cir. 2001), and his own hairstyle, Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972).
75
See Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982); Karr, 460
F.2d at 616; Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697, 703 (5th Cir. 1968); Barber v.
Colo. Indep. Sch. Dist., 901 S.W.2d 447, 449–51 (Tex. 1995).
76
See Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975).
77
See Karr, 460 F.2d at 616.
78
See Board of Trustees of Bastrop Indep. Sch. Dist., 958 S.W.2d 365, 368 (Tex. 1998)
(construing “a statute that relates to, but stands independent of, the Equal Rights Amendment
to the Texas Constitution”); Barber, 901 S.W.2d at 449–51 (rejecting a challenge under the
Texas Constitution’s Equal Rights Amendment).
79
See Karr, 460 F.2d at 614; Ferrell, 392 F.2d at 702; Barber, 901 S.W.2d at 449–51.

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the challenged regulations if they reflected a “rational determination,” 80 or if
they were not “arbitrary” or “unreasonable.”81 Such determinations answer
questions far different than the one we examine today. The District cannot
parlay what may qualify as sufficient to meet rational basis scrutiny into an
interest compelling enough to justify a substantial burden upon sincere religious
exercise. After all, Texas applied the compelling interest standard to free
exercise claims—the “most demanding test known to constitutional law” 82 —for
a reason. Critically, TRFRA reaches behind Smith to a jurisprudence that did
not allow a rule of general applicability to demand conformity of conduct
enjoying constitutional protection.
Nor, as the Fund suggests, are we obliged to take a school’s asserted
interests at face value without further examination. It is true that, because
“[e]ducators have an essential role in regulating school affairs and establishing
appropriate standards of conduct,”83 it is “[s]chool boards, not federal courts” who
have the “authority to decide what constitutes appropriate behavior and dress
in public schools.”84 But under TRFRA, when it is a student’s free exercise of
religion at stake, a school’s invocation of general interests, standing alone, is not
enough—a showing must be made with respect to the “particular practice” at

80
See, e.g., Domico, 675 F.2d at 102–03.
81
See, e.g., Ferrell, 392 F.2d at 702.
82
Boerne, 521 U.S. at 534 (RFRA).
83
Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 441 (5th Cir. 2001) (citing Bethel
Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986)).
84
Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988)).

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issue.85 A court “must searchingly examine the interests that the State seeks to
promote . . . and the impediment to those objectives that would flow from
recognizing the claimed . . . exemption.”86 For government to prevail, then, it
cannot rely on “general platitudes,” but “must show by specific evidence that [the
adherent’s] religious practices jeopardize its stated interests.” 87 In Barr, this
method of review meant a municipality’s purported interest in “safety,
preventing nuisance, and protecting children” could not justify its exclusion of
the religious halfway house in the absence of evidence related to the religious
ministry and the house itself.88
Here, the District makes only cursory attempts to translate the abstract
goals of its grooming policy into an interest sufficiently compelling to justify
requiring a Native American kindergartner to confine his hair to a bun or to a
braid tucked behind his shirt. In the words of Yoder, one of the two Supreme
Court decisions on which TRFRA’s compelling interest test is based, the District
has failed “to show with more particularity how its admittedly strong interest
. . . would be adversely affected by granting an exemption” to A.A.89

85
Barr, 295 S.W.3d at 306 (quoting Gonzales v. O Centro Espírita Beneficente União
Do Vegetal, 546 U.S. 418, 439 (2006)).
86
Yoder, 406 U.S. at 213, 221.
87
Merced, 577 F.3d at 592 (citing Barr, 295 S.W.3d at 306–07).
88
Barr, 295 S.W.3d at 307.
89
Yoder, 406 U.S. at 236. See also O Centro, 546 U.S. at 431 (quoting id.).

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A
We can quickly discard hygienic concern: the District does not dispute that
A.A.’s hair is kept clean, nor does it explain why its “one braid down the back”
exemption would foster hygiene as compared to two braids.
Safety concerns are insufficient, too. The hazard of long hair in an
elementary school setting does not rise to the level of, say, the danger posed by
the wearing of insecurely fastened yarmulkes by Orthodox Jews during high
school basketball games, a situation examined by the Seventh Circuit nearly
thirty years ago.90 And, as Judge Posner found, even that danger was “not great”
(though “not wholly trivial either”).91 Moreover, to say the District’s safety
concerns are not compelling, we need not go so far as a divided Ninth Circuit
panel did in Cheema v. Thompson. There, the panel majority held under RFRA
that a school did not have a compelling interest in a wholesale ban on ceremonial
knives worn by some Sikhs.92 The court remedied the violation by crafting an
exemption that allowed the knives in slightly modified form.93 To the extent
A.A.’s long hair poses a cognizable safety concern, it is of course far from those
associated with a knife of any size or shape.
Any risk of disruption and its potential degree are less readily predicted.
While there is evidence that A.A. has twice been mistaken for a girl while at
school, there is no indication that these occasional cases of mistaken gender
identity were disruptive and certainly not such to constitute a compelling

90
Menora v. Ill. High Sch. Assoc., 683 F.2d 1030, 1035 (7th Cir. 1982).
91
Id.
92
Cheema, 67 F.3d at 885.
93
Id.

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interest; the confusion was easily resolved and the District did not even bother
informing his parents when a misunderstanding did arise.
The district court did find that A.A.’s hair “sometimes falls in his eyes and
his teacher has to tell him to tuck it behind his ear,” but explained that the
teacher occasionally has to make the same suggestion to girls and A.A.’s
presence has not interfered with the teacher’s ability to teach. The District
provides no argument or evidence to the contrary.
In fact, the District concedes that the lone religious exemption it has
granted in the past—to a Muslim girl who wished to wear a
headscarf—permitted the exempted student to look different than the other
students, posed no threat of disruption to the school, and did not give rise to any
concern that the student would be bullied or teased. The most the District can
muster in this space, then, is that a bun or a tuck will present about the same
potential for disruption as allowing A.A. to wear long hair in other ways.

B
We are left then with the District’s stated interests in instilling discipline
and asserting authority. To this list, Superintendent Rhodes would add one last
concern, explaining that in crafting the “tucked braid” exemption, he did not
necessarily seek to effect the goals of the grooming policy at all, but to “try to
have [A.A.’s] hair resemble the rest of the student body in Needville.”
Under the compelling interest test, the District’s support for these
concerns quickly dissolves. For one, the District has failed to put forth a single
case in which a school’s interests in discipline, authority, and uniformity have
proved enough when subject to strict scrutiny. Yes, courts, including the
Supreme Court, have found similar interests sufficient—under varying levels of

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scrutiny—to override an adherent’s right to a religiously informed appearance
in different circumstances. But, when applying a compelling interest standard,
“[c]ontext matters.” 94
Context matters, for example, when members of the military ask the
federal government to accommodate their religious practices. In Goldman v.
Weinberger, a divided Supreme Court rejected an Orthodox Jew’s Free Exercise
challenge to an Air Force regulation prohibiting the wearing of
headgear—including Judaism’s yarmulkes—while indoors.95 Emphasizing the
deference owed to military judgments when the need to “foster instinctive
obedience, unity, commitment, and esprit de corps” is at stake, the court relied
on a low threshold of constitutional protection: “The desirability of dress
regulations in the military is decided by the appropriate military officials, and
they are under no constitutional mandate to abandon their considered
professional judgment.”96 At the same time, in a military community, “there is
simply not the same [individual] autonomy as there is in the larger civilian
community.”97 Under this standard, the Court found the headgear regulation to
“reasonably and evenhandedly regulate dress in the interest of the military’s

94
Cutter, 544 U.S. at 723 (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003))
(brackets in original).
95
475 U.S. 503, 508–10 (1986).
96
Id. at 507–08.
97
Id. at 507.

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perceived need for uniformity,” even if that meant burdening the free exercise
of religion.98
Context matters, too, when police officers request religious exemptions
from their department’s uniform policies. Under Smith’s generally applicable
test, we have held that a police department’s interest in “a disciplined,
identifiable, and impartial police force,”99 is “legitimate” enough “in the context
of uniformed law enforcement personnel” to ban unauthorized religious symbols
or items on an officer’s uniform.100 And, when it is a liberty and not a religious
interest at stake, perhaps less is required; a department’s “desire to make police
readily recognizable to the members of the public, or a desire for the esprit de
corps which such similarity is felt to inculcate within the police force itself” is a
“sufficiently rational justification” to defeat an officer’s liberty interest in
wearing long hair.101
Context has been particularly important to our weighing of constitutional
values when prisoners seek religious exemptions from jail restrictions under
RLUIPA. Although the act gives courts the power to mete out religious
exemptions to federal prisoners under strict scrutiny, Congress was “mindful of

98
Id. at 510. Notably, Congress responded to Goldman by directing that “a member of
the armed forces may wear an item of religious apparel while wearing the uniform,” unless
“the wearing of the item would interfere with the performance [of] military duties [or] the item
of apparel is not neat and conservative.” 10 U.S.C. § 774(a)-(b).
99
Daniels v. City of Arlington, Texas, 246 F.3d 500, 504 (5th Cir. 2001).
100
Id. at 505. Cf. Webb v. City of Philadelphia, 562 F.3d 256, 262 (3d Cir. 2009) (finding
a city would suffer “undue hardship” under Title VII if forced to permit police officers to wear
religious clothing or ornamentation with their uniforms).
101
Kelley v. Johnson, 425 U.S. 238, 248 (1976).

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the urgency of discipline, order, safety, and security in penal institutions.” 102
Recognizing this limitation on RLUIPA, we have held a prison’s interest in
“security” compelling enough to uphold regulations burdening free exercise,103
in one case explaining that long hair “facilitates the transfer of contraband and
weapons into and around” prisons and makes it easier for “escaped prisoners to
alter their appearance from the photographs taken periodically of all . . .
inmates.”104 At the same time, however, we have left open the related—and
closer—question of whether RLUIPA protects an inmate’s interest in growing a
religiously-prescribed beard.105
Here, the context is quite different, and so is A.A.’s request for exemption.
What we have in the present case is an elementary school, which, even in its
most authoritarian form, is neither a military operation nor an incarceration
facility. A.A.’s religious expression does not jeopardize a school’s interest in
authority and discipline in the same way that it might impinge on the military’s
need for instinctive obedience, a police department’s desire to present an
impartial public face, or the penological goal of keeping prisoners in prison.
Regulation of hair and dress in public schools is meant in part to instill

102
Cutter, 544 U.S. at 723 (citing 139 Cong. Rec. 26190 (1993) (remarks of Sen. Hatch)).
103
See generally Sossamon, 560 F.3d at 334 (“Texas obviously has compelling
governmental interests in the security and reasonably economical operations of its prisons.”).
104
Diaz, 114 F.3d at 73. See also Longoria, 507 F.3d at 904 (relying on Diaz to uphold
a prison’s ban on long hair).
105
See Garner v. Morales, 2009 WL 5777755, at *5 (5th Cir. March 6, 2009)
(unpublished) (explaining that our precedent under Smith upholding clean-shaven policies in
the face of free exercise challenges is not dispositive under RLUIPA and remanding for a
determination under the latter’s heightened statutory standard). But see Green v. Polunsky,
229 F.3d 486, 490–91 (5th Cir. 2000) (holding, under the Smith test, that a prison “has a
legitimate interest generally in preventing inmates from wearing even short beards”).

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discipline and to teach respect for authority—not because a kindergartner is a
flight risk or because he will need to take direction from superiors in a war
zone—but because a grooming policy preserves order in the classroom and
prepares students to become society’s next generation of citizens. These goals
are legitimate, but they are not served by applying the District’s hair regulation
to A.A. That legitimacy accepts that the wearing of long hair and
unconventional dress by most boys may be seen as an act of defiance—and a
rejection of authority. Well and good, but A.A.’s long hair is conceded to be an
exercise, not of rebellion, but of adherence to religious belief. That adherence
does not thwart the school’s pedagogical mission, a teacher’s dominion over her
classroom, or a principal’s ability to maintain an environment conducive to
learning. As the District has conceded, it is an acknowledgment of piety to
religion and fealty to an authority superior to individual whim. The District’s
regulation aimed at this acknowledgment—in the name of authority and
discipline—is not a compelling interest.
With no evidence specific to A.A.’s request for exemption, the District
makes no suggestion that A.A.’s visibly long hair will erode obedience and
discipline among the general student population. It also puts forth no claim that
a grant of an exemption here will lead to future claims destructive of the
District’s general policy.106 The evidence is all to the contrary: A.A.’s religious
exemption request is just the second ever received by the District (as we have
noted, the first request was granted). Treating A.A.’s exemption request as an

106
See United States v. Lee, 455 U.S. 252, 259–60 (1982) (finding that the
accommodation of religious conflicts with the tax system is not constitutionally-mandated
because of the likelihood that a “myriad” of individual exemptions, when aggregated together,
would unduly interfere with the system as a whole).

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outlier, it is, in the district court’s words, “difficult to imagine that allowing one
male child to wear long hair, as part of his religious beliefs, would disturb the
school’s sense of order.”
So seen, Superintendent Rhodes’s concern for aesthetic homogeneity, like
the others, is insufficiently compelling to overtake the sincere exercise of
religious belief. Regardless, the District’s exemptions do not serve it: A.A. would
still be non-conforming in appearance—either as the only child wearing a
thirteen-inch braid tucked inside his shirt or the only male child wearing a bun.

C
Had the District succeeded in presenting specific evidence connecting its
concerns to A.A.’s request for exemption, any connection would be weakened by
the District’s decision to permit girls to wear their hair visibly long.107 The
District has not shown that girls with long hair are less prone to accidents or
that they are better able to conform with the District’s hygienic standards. Nor
does the District explain why any gender confusion issues associated with A.A.’s
long hair would not also be true for a girl who chose to wear her hair short, as
the grooming policy allows. At the same time, the District’s decision to allow
some girls to wear short hair is a judgment call that “undoubtedly undermines”

107
See, e.g., Merced, 577 F.3d at 593 (noting “several exceptions that undermine” the
asserted government interest in regulating religious conduct). The District and its amicus
urge that any comparison between male and female grooming standards has long been rejected
by the Fifth Circuit and the Texas Supreme Court. Ferrell, 392 F.2d at 704; Toungate, 948
S.W.2d at 371; Barber, 901 S.W.2d at 450. This argument misunderstands the relevance of
comparisons between males and females. These comparisons are not meant to establish a
constitutional or statutory grievance but are instead evidence that the District’s grooming
policy is not without secular exception, and a significant one at that: all girls.

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any “interest in fostering a uniform appearance” through its policy.108 That the
District itself contemplates secular, gender-based exceptions indicates that none
of the generalized interests purportedly advanced through the grooming policy
should carry “determinative weight” for TRFRA purposes.109 More to the point,
it makes plain that it is non-conforming appearance evincing resistance to school
authority that justifies the District’s grooming policy; that it misses the mark to
turn that code to dress and hair conceded to be born of sincere religious belief.

D
To review, while a school may set grooming standards for its students,
when those standards substantially burden the free exercise of religion, they
must accomplish something. Under TRFRA, that “something” is a compelling
interest. The District only invokes the same five generalized interests without
explaining the play of those interests here. TRFRA demands more. The
questions of detail and degree that the District would answer for its student do
not rise to the level of compelling interest, and are therefore left to the adherent
alone.

108
See Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359,
366 (3d Cir. 1999) (Alito, J.) (finding that the fire department’s decision to allow medical
exemptions to a fire department’s “no-beard” policy undermined the department’s asserted
interest in promoting uniformity among firefighters).
109
O Centro, 546 U.S. at 433 (explaining that because the Controlled Substances Act
contemplates exempting certain people from its requirements the underlying congressional
findings should not carry “determinative weight” for RFRA examination of a claimed religious
exemption). See also Sossamon, 560 F.3d at 334 (finding a genuine issue of material fact as
to whether a prison had furthered its interests through the least restrictive means possible
by barring all religious use of the prison chapel when other evidence indicated that the chapel
was safely used for other kinds of prisoner gatherings).

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IX
A.A. has succeeded in his free exercise claim under TRFRA. He has a
sincere religious belief in wearing his hair uncut and in plain view; that belief
is substantially burdened by the District’s grooming policy—even with the
District’s proffered exemptions; and the District has put forth insufficient
justification for its persistence in this matter. The Texas Supreme Court,
speaking through Justice Hecht, has made plain that it reads TRFRA to have
bite in the protection of religious freedom in Texas public schools, that religious
freedom does not invariably fall before generic rules. Rather, the regulation
must respond to specific circumstances. And it is Texas law that we apply today.
Because we do not decide questions of a constitutional nature “unless
absolutely necessary to decide the case,110 and because our holding under Texas
law provides a non-constitutional basis sufficient to support the judgment below,
we decline to address the remaining claims on appeal.
AFFIRMED.

110
United States v. Lipscomb, 299 F.3d 303, 359 (5th Cir. 2002).

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E. GRADY JOLLY, Circuit Judge, dissenting:
I respectfully dissent. I fully respect A.A.’s sincere religious belief that his
hair not be cut, but that is not the belief on which the majority opinion rests.
With respect for the scholarship of the majority opinion, its lengthy reasoning
results in substantial mistakes.
I
The district court found that Native American communities “assign
religious significance to hair length” and that the plaintiffs in particular “find
significance in the fact that [their] hair is long.” It then concluded that the
plaintiffs have “a sincerely held belief that their hair should be worn long.” A.A.
ex rel. Bettenbaugh v. Needville Indep. Sch. Dist., No. H-08-2934, 2009 WL
6318214, at *11 (S.D. Tex. Jan. 20, 2009). The court ultimately reasoned that
the accommodation policy, which “will require [A.A.] to wear [his hair] ‘in a
tightly woven braid,’ stuffed down the back of his shirt,” substantially burdens
this belief “[b]y imposing a physically burdensome [i.e., uncomfortable]
restriction” that “will influence [A.A.] to cut his hair in violation of his religious
beliefs.” Id. at *12–13 (emphasis added).1 In short, the district court concluded
that the school district gave A.A. a Hobson’s choice that effectively forced A.A.
to forgo maintaining uncut, long hair and thus constituted a substantial burden
on his religious belief. On appeal, the majority leaves this specific rationale of
the district court in the dust bin and starts us on a meandering search for some
cohesive support for the plaintiffs’ claim.
The school district, on appeal, argues the district court erred in finding
that A.A. was required to wear his hair tucked down his collar, or in any one

1
Cut, not hide, even though the policy would obviously require A.A. to hide his hair.

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way, and that it was further error for the district court not to consider more
comfortable alternative hair styles that were also compliant (off his collar) with
its grooming policy, e.g., in a braided bun. The majority concedes that the
district court erred in treating “in a plait and down his collar” as mandatory.
Maj. op. at 1. Thus, the question on appeal should be whether the other options
proposed by the school district would unconstitutionally burden A.A.’s religious
beliefs.
Clearly, none of the other “off the collar” options proposed by the school
district impose a substantial burden on A.A’s belief that he should not cut his
hair. Indeed, braided hair is an option chosen often by A.A. himself. It is true,
of course, that accommodations proposed by the school district would not disclose
the exact length of A.A.’s hair.2 And so the majority has now, on appeal, framed
the plaintiffs’ purported religious belief not merely to be uncut long hair, but to
be the visibility of hair length. The majority concludes that the district court’s
finding—that A.A. has a sincere belief that his hair be “worn long”—is a finding
not just about length, but also about hair style—that the length must be
religiously visible.
The majority has confected this interpretation entirely on its own. First,
the relevant portions of the district court’s opinion never use the words
“visibility” or “in plain sight,” contrary to what the majority opinion suggests.
Maj. op. at 10.3 Second, the court mentions hair length—not visibly displayed

2
Or so I assume for the purposes of this dissent. In reality, it is difficult to understand
how a number of these alternatives would not expose the length of A.A.’s hair.
3
Neither did the district court find that the plaintiffs believe that their braids “should
be presented” in any particular way.

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hair length—as the protected religious belief nearly a dozen times.4 Third, the
substantial burden analysis of the district court was concerned only that the “in
a plait and down his collar” accommodation encouraged A.A. to cut his hair, i.e.,
was a “substantial burden” on his religious belief of not cutting his hair. The
district court expressed no concern that “in a plait down his collar” would hide
his hair.5 Fourth, interpreting the district court as addressing visibility as a
religious belief rests uncomfortably with other portions of the district court’s
opinion; that is, the district court gave full discussion to visibility of hair length
in the section of its opinion concerning free speech. In short, nothing in the
district court’s opinion indicates an acceptance of A.A.’s argument that visibility
was a protected belief; only by seizing a single line out of the district court’s
opinion—“A.A. [has] a sincerely held belief that [his] hair be worn long,” A.A.,
2009 WL 6318217, at *11—and then reading it out of context could the majority
extend the district court’s findings on uncut long hair to visibility of the length
of hair.
The majority nevertheless reasons that the district court’s
statement—that “their hair should be worn long”—contains an implicit finding
on the sincerity of the plaintiffs’ alleged belief in visibility because the district
court used the word “worn.” According to the majority, “worn” means to

4
See A.A., 2009 WL 6318217, at *17 (“assign religious significance to hair length”; “long
hair addresses ‘fundamental’ and ‘ultimate’ concerns”); *18 (“Arocha has not cut his hair”; “he
refused to cut his hair”; “[his] decision to shave his hair on the sides does not weaken the
sincerity of his [beliefs]”; “[he] has ‘kept the length’”; “hair is long, not full”); *20 (“otherwise,
he will be forced to cut his hair”; “policy will influence him to cut his hair in violation of his
religious beliefs”).
5
If the district court were concerned about visibility, it would certainly have mentioned
that the “down his collar” policy covered up A.A.’s braid as a ground for its decision. The
“down his collar” policy burdened visibility, not length.

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“exhibit” or “present.” But common sense strongly cuts against interpreting
“worn” to denote visibility. If “worn” means visible, t-shirts, socks, and
petticoats, not to mention ordinary garments worn under sweaters and jackets,
are not being worn because they are not seen. Defining the word “worn” to
require “visibility” leaves one virtually gobsmacked.6
II
The non-faux issue on appeal, as reflected in the opinion and analysis of
the district court, is whether restrictions on A.A.’s choice of hair style constitute
a substantial burden on the religious belief that his hair must not be cut.
The majority—somehow melding or confusing the religious belief it
asserts, i.e., visibility, with whether that belief is substantially burdened—says
that any hair style that conceals the exact length of A.A.’s hair is a substantial
burden on his religious belief. The district court, however, never extended its
holding this far. The district court only said that “in a plait and down his collar”
was an uncomfortable manner of wearing his hair; this discomfort was a
substantial burden upon wearing uncut long hair because the discomfort would
encourage A.A. to cut his hair. All parties agree that the district court erred in
assuming that “in a plait and down his collar” was the only choice available to
A.A. Thus the school district argues, and I agree, that the religious belief of
uncut long hair reasonably can be accommodated by wearing hair in a ponytail
as a bun (or down the collar if he chooses; a t-shirt would seem to minimize the
discomfort that concerned the district court).

6
Of course, even if the district court made some finding as to visibility, there is little
reason to believe that it was so specific as to prohibit a hairstyle that is fully visible but hides
some length, such as a bun atop his head.

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As I have said, in addressing the substantial burden issue, the majority
rests on its erroneous conclusion that A.A. has a belief in visibly long hair. It
argues that any hair style that conceals the exact length of A.A.’s uncut long hair
is a substantial burden on the religious belief of visible long hair. This argument
is belied because hair plaited in a bun or on top of his head is visible long hair.
But the majority—though not the district court—further argues that any
restriction on A.A.’s hair style is a substantial burden because compliance will
portray A.A. as a cipher who cedes his religious belief to the authority of the
school district and thus he will be officially stigmatized. Maj. op. at 27. If he can
wear his hair in any style he wishes, the majority reasons, his religious belief
would then bear no official imprimatur of school district policy. With due
respect, this is not sensible. By this reasoning, any regulation of religious
expression constitutes a substantial burden because regulation presumptively
restricts the right at issue and thus stigmatizes the assertive student who is in
compliance. This is not, nor has it ever been, the law. As the majority agrees,
Maj. op. at 24, a regulation constitutes a substantial burden only if “alternatives
for the religious exercise are severely restricted.” Barr v. City of Sinton, 295
S.W.3d 287, 305 (Tex. 2009). This leaves ample room for minimally invasive
regulations, such as the one at issue here.
III
For the reasons asserted herein, I essentially dissent from the majority’s
conclusions in toto.

44