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 WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR PETITIONERS
TEAM 15
Counsel for the Petitioners
QUESTIONS PRESENTED
I.
WHETHER THE CIRCUIT COURT PROPERLY DECIDED THAT THE
HAIRCUT POLICY, WHICH PROMOTES TEAM UNITY AND PROVIDES A
REASONABLE INTEREST, VIOLATES RESPONDENT’S DUE PROCESS AND
EQUAL PROTECTION RIGHTS.
II.
WHETHER THE BASEBALL RULE, WHICH CAREFULLY BALANCES
SPECTATOR INTEREST AND SAFETY TO MAINTAIN BASEBALL’S STATUS
AS A SPECTATOR SPORT, SHOULD DEFINE A STADIUM OPERATOR’S
DUTY TO SPECTATORS IN TULANIA.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................................................................................ i
TABLES OF CONTENTS ............................................................................................................. ii
TABLE OF AUTHORITIES ......................................................................................................... iii
OPINIONS BELOW ....................................................................................................................... 1
STANDARD OF REVIEW ............................................................................................................ 1
STATEMENT OF THE CASE....................................................................................................... 2
Statement of Facts .................................................................................................................. 2
Course of Proceedings and Disposition in the Courts Below ................................................ 4
SUMMARY OF THE ARGUMENT ............................................................................................. 5
ARGUMENT .................................................................................................................................. 7
I. THE CIRCUIT COURT ERRED IN HOLDING THAT THE HAIRCUT POLICY
VIOLATES RESPONDENT’S DUE PROCESS AND EQUAL PROTECTION
RIGHTS. ........................................................................................................................... 7
A. The Circuit Court Incorrectly Decided that the Enforcement of the Haircut
Policy Infringed on Respondent’s Substantive Due Process Rights. ........................... 7
i.
The circuit court should have applied a rational basis standard to the haircut policy
……………………………………………………………………………………...9
ii. The School Corporation’s interest in promoting team unity outweighs the liberty
interest in hairstyles. ............................................................................................... 11
B.
II.
The Circuit Court Improperly Relied on the Equal Protection Clause to Negate the
Haircut Policy. .......................................................................................................... 13
THE WIDELY ACCEPTED AND UTILIZED BASEBALL RULE PROPERLY
DEFINES SCHOOL CORPORATION’S DUTY TO ITS SPECTATORS BY
BALANCING SPECTATOR DESIRE AND SAFETY .............................................. 14
A. The Baseball Rule Guides School Corporation’s Duty to Spectators Under General
Negligence Standards Due to Circumstances Surrounding the Game of Baseball .... 15
B. Preserving Baseball as a Spectator Sport Compels Adoption of the Baseball Rule .. 18
C. The Baseball Rule Sets Stadium Operator’s Duty to Spectators in an Overwhelming
Majority of Jurisdictions Without Need of Legislative Action .................................. 21
CONCLUSION ............................................................................................................................. 23
ii
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) …………………………………11
Griswold v. Connecticut, 381 U.S. 479 (1965) ……………………………………………...7, 8, 9
Hazelwood School Dist. V. Kuhlmeier, 484 U.S. 260, 266 (1988) …………………………..….11
Morse v. Frederick, 551 U.S. 393, 396-97 (2007) …………………………………….…….11, 12
Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503 (1969) …………………...........7, 8, 9
United States v. O’Brien, 391 U.S. 367, 376 (1968) ………………………………………….….7
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) ……………………………………..5
Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 491 (1955) ……………………………...9
STATE SUPREME COURT CASES
Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 300 (N.Y. 1981) ………………….…passim
Arnold v. City of Cedar Rapids, 443 N.W.2d 332 (Iowa 1989) ………………………………...21
Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507 (Minn. 1932) ………...……21
Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175 (Ohio 1925) …………………………..21
Erickson v. Lexington Baseball Club, 233 N.C. 627 (N.C. 1951) ………………………………21
Haymon v. Pettit, 9 N.Y.3d 324, 328 (N.Y. 2007) ……………………………………………...19
Hunt v. Portland Baseball Club, 207 Or. 337 (Or. 1956) …………………………………….…21
Kavafian v. Seattle Baseball Club Ass’n, 105 Wash. 215 (Wash. 1919) ……………………..…21
Lawson v. Salt Lake Trappers, Inc., 901 P.2d 1013 (Utah 1995) ………………………….……21
Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 81 (N.J. 2005) …...…15, 21
Powless v. Milwaukee County, 6 Wis.2d 78 (Wis. 1959) …………………………………….…21
Rountree v. Boise Baseball, LLC, 154 Idaho 167, 172 (Idaho 2013) …………………………...22
iii
Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59 (Va. 2003) ………..…21, 22
Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175-76 (Nev. 2008) ………...…16, 18
UNITED STATES COURTS OF APPEALS CASES
Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 394 (6th Cir. 2005) ………….………9, 10
Karr v. Schmidt, 480 F.2d 609, 615-16 (5th Cir.1972) …………………………….………passim
King v. Saddleback Jr. Coll. Dist., 445 F.2d 932, 939 (9th Cir. 1971) ………………...……13, 14
Swank v. Smart, 898 F.2d 1247, 1252 (7th Cir. 1990) ………………………………..……5, 9, 10
Wroblewski v. City of Washburn, 965 F.2d 452 (7th Cir. 1992) ……………………………...9, 10
STATE APPELLATE COURT CASES
Alwin v. St. Paul Saints Baseball Club, Inc., 672 N.W.2d 570, 573 (Minn. Ct. App. 2003) ……...
………………………………..………………………………………………………..…17, 18, 20
Bellezzo v. Arizona, 174 Ariz. 548, 554 (Ariz. Ct. App. 1992) …………………..…………16, 21
Benejam v. Detroit Tigers, Inc., 246 Mich. App. 645, 649 (Mich. Ct. App. 2001) ………...passim
Costa v. Boston Red Sox Baseball Club, 81 Mass. App. Ct. 299 (Mass. App. Ct. 2004) ………21
Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. App. 301 (Mo. Ct. App. 1913) ……21
Crespin v. Albuquerque Baseball Club, LLC, 216 P.3d 827, 838 (N.M. Ct. App. 2009) ………18
Friedman v. Houston Sports Ass’n, 731 S.W.2d 572 (Tex. Ct. App. 1987) …………………….21
Hunt v. Thomasville Baseball Co., 80 Ga. App. 572 (Ga. Ct. App. 1949) ……………………...21
Lorino v. New Orleans Baseball & Amusement Co., 16 La. App. 85 (La. Ct. App. 1931) …..…21
Reed-Jennings v. Baseball Club of Seattle, L.P., 188 Wash. App. 320, 331 (Wash. Ct. App.
2015) ……………………………………………………………………………………….……16
Rudnick v. Golden W. Broadcasters, 156 Cal. App. 3d 793, 802 (Cal. Ct. App. 1984) …….15, 21
Wade-Keszey v. Town of Niskayuna, 4 A.D.3d 732 (N.Y. App. Div. 2004) ………………..17, 18
iv
OTHER AUTHORITIES
Gil Fried & Robin Ammon, Baseball Spectators' Assumption of Risk: Is It “Fair” or “Foul”?,
13 MARQ. SPORTS L. REV. 39, 60 (2002) ………………………………………………………..19
Wex S. Malone, Contributory Negligence and the Landowner Cases, 29 MINN. L. REV. 61, 77
(1945) ……………………………………………………………………………………………19
Robert J. Thorpe, Way Out in Left Field: Crespin v. Albuquerque Baseball Club Rejects Nearly
One Hundred Years of American Jurisprudence By Declining to Adopt the Baseball Rule in New
Mexico, 17 SPORTS LAW. J. 267, 279 (2010) ……………………………………………………19
Restatement (Third) of Torts: Liability for Physical and Emotional Harm §6 cmt. b (2010) …..16
v
OPINIONS BELOW
The opinion of the United States Court of appeals for the Fourteenth Circuit is unreported
and set forth in the Record on Appeal. (R. at 3-31.) The opinion of the District Court for the
Southern District of Tulania is also unreported and set forth in the Record on Appeal. (R. at 3254.)
STANDARD OF REVIEW
For the purposes of this hypothetical, the Supreme Court of the United States will review
the case at hand de novo.
1
STATEMENT OF THE CASE
The Petitioners, Saint Tammany Parish School Corporation and St. Tammany Parish
School Board Members, were the appellees in the circuit court and the defendants in the district
court and will be referred to as “School Corporation”. The Respondents, Patrick and Melissa
Amendola, on behalf of their minor child, Danny, will be referred to as “Respondent”. The record
will be noted by reference to then page number of the Record on Appeal.
Statement of Facts
Respondent sought to play baseball on School Corporation’s St. Paul High School baseball
teams during the 2010-2011, 2011-2012, and 2012-2013 school years. (R. at 34-37.) During
tryouts in October 2010 for the 2010-2011 school year, School Corporation informed Respondent
of a pre-existing Haircut Policy (“Policy”), which Respondent was violating at that time. (R. at 3334.) The Policy calls for an acceptable length of hair, which is above the ears, eyebrows, and collar.
(R. at 34.) The Policy stems from hair and dress policies for all members of extracurricular school
activities in accordance with St. Paul’s High School Athletic Code of Conduct. (R. at 33-34.) The
St. Paul’s High School Athletic Code of Conduct governs student athletes and grants Coach
Belichick the authority to establish the Policy. (R. at 21, 34.) Before Respondent was accepted on
the team, Coach Belichick explained to Respondent that the purpose of the Policy was to promote
an image of clean-cut boys and establish uniformity. (R. at 34.)
After Respondent was accepted on the team, in November 2010, the coaches informed the
baseball team that any student that did not comply with the Policy would be removed from the
team. (R. at 35.) After failing to comply with the Policy, Respondent and another player were
removed from the team. (R. at 35.) Respondent transferred schools from School Corporation to
2
Caddo Magnet School Corporation and did not play baseball for the remainder of the 2010-2011
school year. (R. at 35.)
Respondent transferred back to School Corporation for the 2011-2012 school year. (R. at
36.) Throughout the entire baseball season, Respondent complied with the Policy and played on
the team. (R. at 37.) During a baseball game at School Corporation’s stadium, Respondent Melissa
Amendola, was injured by a foul ball towards the end of a game. (R. at 36.) She was injured by a
foul ball while returning to her seat. (R. at 36.) At the time of the injury, she was located close to
a concession stand area on the third-base side of the field and was not paying attention to the game.
(R. at 36.) She also could not see the batter and did not see the foul ball as it was coming at her.
(R. at 36.) Yet, she had a general admission ticket that warned her that she assumed the risks and
dangers incident to the game. (R. at 36-37.) The admission ticket explicitly alerted against the risk
of being struck by a foul ball. (R. at 36-37.) She concedes she did not read the warning on the
ticket. (R. at 37.)
The School Corporation provides other various safety precautions for its spectators in its
stadium, which had precluded any previous serious foul ball injury in numerous baseball games
over a span of least seven seasons. (R. at 28, 36.) For example, School Corporation provides seats
behind home plate that are shielded by a protective net and displays several, large posted warning
signs that caution spectators they could be injured by a foul ball. (R. at 36-37.) There were no
spectators that wanted seating behind the net and could not be accommodated (R. at 53.)
Furthermore, before the baseball game begins, a loudspeaker announcement warns spectators to
be alert for foul balls during the game. (R. at 37.)
After Respondent played in the 2011-2012 baseball season, Respondent wore his hair
longer than the Policy allowed, including in November 2012 during tryouts for the 2012-2013
3
school year. (R. at 37.) At that time, School Corporation informed Respondent that he could not
participate on the team until he complied with the Policy. (R. at 37.) Instead of observing the
Policy, Respondent transferred schools. (R. at 37.)
Course of Proceedings and Disposition in the Courts Below
Following Respondent’s refusal to cut his hair and subsequent exclusion from participating
on the baseball team and Respondent Melissa Amendola’s injury from an inherent spectator risk
at School Corporation’s stadium, Respondent filed suit in the United States District Court for the
Southern District of Tulania. (R. at 32, 38, 47.) Respondent alleged Due Process and Equal
Protection violations in addition to negligence against protection from foul balls. (R. at 32, 38, 47.)
The United States District Court for the Southern District of Tulania ruled in favor of School
Corporation on all alleged counts. (R. at 54.) More specifically, the district court found that when
a grooming policy has a reasonable basis beyond the subjective preference of the decision maker,
no constitutional violation could be found. The district court also agreed with School Corporation
and an overwhelming majority of jurisdictions that the Baseball Rule should define the limited
duty stadium operators owe to spectators with respect to the inherent risk of injury of a foul ball.
Respondent appealed to the United States Court of Appeals for the Fourteenth Circuit,
challenging the ruling by the district court. (R. at 3-4.) The circuit court reversed the district court’s
ruling on all claims, finding in favor of the Respondent. (R. at 31.) The circuit court adopted the
view that choosing a hairstyle is a fundamental right and found the Policy violates the Due Process
rights of Respondent. Furthermore, the Policy deprived Respondent of equal protection because it
discriminates on the basis of sex. Regarding the Baseball Rule, the circuit court declined to observe
the Baseball Rule, a long-standing guidance for a stadium operator’s duty to spectators.
This Court granted certiorari to address the important claims at issue.
4
SUMMARY OF THE ARGUMENT
This Court should reverse the circuit court’s decision. The circuit court erred in reversing
the district court’s decision and in finding that Respondent had a liberty interest in his hair length.
School Corporation’s interest in ensuring team unity and uniformity is a reasonable interest that
outweighs the Respondent’s harmless liberty interest. This Court has previously noted that the
personal hair styling and grooming is considered a harmless liberty. In fact, such “harmless
liberties” are only protected against arbitrary infringements, which is not the case here. Swank v.
Smart, 898 F.2d 1247, 1252 (7th Cir. 1990). School Corporation’s dress and grooming policy
expressed a reasonable basis for the Policy and the circuit court decision should be reversed.
Additionally, the Equal Protection clause protects individuals against intentional, arbitrary
discrimination by state officials. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Although the right is used in the school setting, the right is rarely used to invalidate hair length
regulations. Karr v. Schmidt, 480 F.2d 609, 615-16 (5th Cir. 1972). When a school regulation
implicates a fundamental right, courts are quick to intervene, yet, as is the case here, when the
rights are merely harmless liberties, courts generally practice restraint. Id. at 15. Respondent
contends that the Policy unequally applies to boys yet have no standing in the issue since it is
stipulated that female athletic teams are in fact subject to their own grooming policies.
Moreover, the circuit court also struck out when it declined to recognize the Baseball Rule
in Tulania. Under the Baseball Rule, a stadium operator must adopt reasonable safety measures to
fulfill its duty of care to spectators in order to address the inherent risk of errant balls leaving the
field of play. Once a stadium operator complies with these requirements, the stadium operator has
satisfied its legal duty owed to spectators from the known and obvious risk of foul balls.
5
Notably, the Baseball Rule serves the interests and safety of spectators while limiting
expensive and excessive safety guesswork and litigation that could greatly alter American’s
greatest pastime as a spectator sport. The circuit court rejected over one hundred years of American
jurisprudence that is adopted and utilized in an overwhelming majority of jurisdictions when it
failed to recognize the district court’s adoption of the Baseball Rule. The safety rules required by
the Baseball Rule were necessarily in play in School Corporation’s Stadium at the time of
Respondent’s injury. This Court should reverse the circuit court because the Baseball Rule should
apply in Tulania.
6
ARGUMENT
I.
THE CIRCUIT COURT ERRED IN HOLDING THAT THE HAIRCUT POLICY
VIOLATES RESPONDENT’S DUE PROCESS AND EQUAL PROTECTION
RIGHTS
A.
The Circuit Court Incorrectly Decided That the Enforcement of the Haircut
Policy Infringed on Respondent’s Substantive Due Process Rights
The circuit court broadened constitutional protections by determining that the application
of the Policy violated Respondent substantive Due Process rights. It has been determined,
however, that the First and Fourteenth Amendment do not provide constitutional protection for
hair length. Karr, 480 F.2d at 613-14. Additionally, this Court has refused to accept that a limitless
variety of conduct can be labeled as speech. United States v. O’Brien, 391 U.S. 367, 376 (1968).
In Karr, a student brought suit against the school, seeking remove a dress code regulation
relating to length of hair for boys. Karr, 480 F.2d at 610. The court in Karr held, inter alia, that it
was clear error for the district court to determine that the Policy failed to meet the minimum test
of rationality that was properly applicable. Id. at 617. The court refused to accept that hair length
was a sufficient communication that entitled it First Amendment protections. Id. at 613. Karr
further discussed substantive Due Process in the area of individual liberties and that they should
be ranked in a spectrum of importance. Id. at 615.
Karr pointed to two cases, Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503
(1969) and Griswold v. Connecticut, 381 U.S. 479 (1965), to provide a basis for this spectrum.
Karr, 480 F.2d at 614. Through Tinker, the court in Karr establishes the difference between
grooming regulations and other First Amendment rights. Id. “The problem posed by the present
case does not relate to regulation of the length of skirts or the type of clothing, to hairstyle, or
deportment. * * * Our problem involves direct, primary First Amendment rights akin to ‘pure
speech.’” Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972)(quoting Tinker, 393 U.S. at 507-08).
7
The court in Karr determines that the court in Tinker intended to indicate that the right to groom
one’s hair in public schools does not merit the protection of the First Amendment. Id. The court
follows with Griswold and a substantive Due Process analysis. Id. Griswold involved protection
of marital privacy rights, which was deemed a fundamental right protected by the Fourteenth
Amendment. Id. Karr refused to rely narrowly Griswold because marital privacy affords a greater
protection than hair length. Id.
The spectrum of importance ranking individual liberties would place the most obvious,
great liberties such as speech and religion at one end, along with marital privacies. Id. at 615. At
the other end would be lesser liberties such as the right to wear one’s hair a certain length in a
public school. Id. Karr further stands for the proposition that multiple, “lesser” liberties are
restricted in the school setting for reasonable interests and courts should practice restraint. Id. at
616.
In the instant case, the circuit court incorrectly groups the liberty interest in hairstyle with
greater liberties. In doing so, the circuit court established that subjective intent is enough to decide
that hair length has sufficient communicative content to inherit First Amendment protection. This
is not only incorrect, but it opens the door for the management of public schools to be subject to
Federal intervention, a fear the court in Karr warned of. Id. Multiple jurisdictions, including the
Fifth Circuit in Karr, have held that the First Amendment does not protect hair length and as such
the protections should not be extended in this case.
Subjective intent of hairstyles is not the turning point in deciding whether or not a
regulation is valid or not. Id. at 614. Respondent and the district court contend that the Policy
violates a fundamental liberty interest by deciding the grooming choices of Danny. As previously
mentioned, however, the subjective intent of one’s hairstyle does not decide whether there is
8
constitutional protection or not. These liberties differ greatly from those at issue in Tinker and
Griswold. An armband, like the one worn in Tinker, can be used to support a religion or political
stance, while freedom to make marital choices expresses stances on social issues. Such is not the
case with the length of one’s hair. Long hair can simply show that one chooses to get haircuts less
frequently, or not at all. It expresses no religion, no pure speech, and it does not involve private
aspects of one’s life. It is merely a matter of taste rather than expression.
It can be determined that hair length is a lesser liberty—if one at all—and is therefore
regulations relating to hair length are not subject to a high level of scrutiny. The circuit court failed
to make this determination and this Court should find as such and subsequently apply a rational
basis standard of review.
i.
The circuit court should have applied a rational basis standard to the
haircut policy
The burden is on the challenger to the regulation in proving whether a regulation is
arbitrary. State regulations that do not affect fundamental liberties are subject to a less rigorous
standard. Karr, 480 F.2d at 616. The appropriate standard of review is whether the regulation is
reasonably related to the furtherance of a constitutionally permissible state goal. Williamson v. Lee
Optical of Okla. Inc., 348 U.S. 483, 491 (1955). A case that is neither pertaining to the freedom of
association nor the freedom of expression, the legal test is pure unreasonableness. Swank v. Smart,
898 F.2d 1247, 1253 (7th Cir. 1990). Harmless liberties are protected only against unreasonable
infractions. Wroblewski v. City of Washburn, 965 F.2d 452 (7th Cir. 1992). School regulations
restricting one’s hair length do not affect a fundamental right. Blau v. Fort Thomas Public Sch.
Dist., 401 F.3d 381, 394 (6th Cir. 2005).
The court in Swank provided that when a case involves a “lesser liberty” the appropriate
standard that should be applied is the rational basis test. Swank, 898 F.2d at 1253. Swank involved
9
First Amendment claims requiring the court to determine whether or not the speech was a protected
speech. Id. at 1250. The court subsequently decided the applicable legal test for expressions not
protected under the First Amendment is absolute arbitrariness. Id. at 1253.
Additionally, in Wroblewski, the Court examined how substantive Due Process had been
expanded to protect these “harmless liberties” and how they required a lower standard of review.
Wroblewski, 965 F.2d at 457. These liberties deserve to fall within the broad scope of protections
but since they are considered harmless, should be subject to a less strict legal test. Id. at 457.
In Blau, the Sixth Circuit refused to accept that the desire to wear one’s hair in a certain
way was a fundamental right. Blau, 401 F.3d at 394. Further, the court found that only when state
action infringes upon a fundamental right should strict scrutiny be applied. Id. at 394. When such
actions do not, however, they must receive a rational basis review and only be rationally related to
a legitimate state interest. Id.
The same principles apply in our case. The Policy affects the choice of hair length, which
may intrude upon a harmless liberty. As settled in Swank and Wroblewski, harmless liberties
should be subject to a reasonable basis standard. The same should apply here because, as in Swank,
the liberties at stake are not protected under the First Amendment. Similarly, in Wroblewski, a
hairstyle is comparable to idle chitchat or wearing a mustache, and is not treated to the same rigid
standard as pure speech. Further, as held in Blau and applied here, the desire to wear one’s hair in
a certain length does not constitute a fundamental right and is therefore subject to a rational review.
The Policy would survive such a review.
Respondent failed to show that the Policy was not reasonably related to a legitimate state
interest. As the Policy and Coach Belichick provide, the Policy is meant to promote team unity.
This is a reasonable goal for any athletic team that requires individuals to play together in order to
10
achieve athletic goals. Additionally, team unity may not be the only goal of the Policy, albeit the
most important to the coach. Such policies have underlying reasoning potentially relating to
hygiene. It seems reasonable to require hair lengths when students are sharing helmets. Players
with longer hair might lose strands of hair in the helmet, making other players not want to share
the helmet.
Therefore, the Respondent effectively waived their Due Process claims by failing to show
that the Policy did not pass the rational basis standard—the applicable legal standard here. In not
showing sheer unreasonableness in the application of the Policy, the challenger’s argument
disappoints.
ii.
The School’s interest in promoting team unity outweighs the liberty
interest in hairstyles
The Policy furthers a reasonable compelling interest, which outweighs the interest of the
students. Constitutional rights are not stripped when a student enters a school, however, the right
must be applied in light of the special circumstances of the school environment. Morse v.
Frederick, 551 U.S. 393, 396-97 (2007) (citing Hazelwood School Dist. v. Kuhlmeier, 484 U.S.
260, 266 (1988)). The rights of students in public schools are not equivalent to the rights of others
outside of the school. Morse 551 U.S. at 396-97 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 682 (1986). Unless a school violates a fundamental liberty, it is the preference of the
court to refrain from interfering with public school policies. Karr, 480 F.2d at 616.
In Morse, a student was suspended for waving a banner at a school activity. Morse, 551
U.S. at 393. This Court previously held that the principal did not violate the student’s rights by
directing them to take down the banner. Id. The banner waving was viewed as speech, but because
the school sponsored the activity, the students were subject to the school’s policies. Id. Since the
principal was attempting to curb speech promoting drug use, a direct conflict with the interest of
11
the school, the principal was allowed to prohibit the speech. Id. at 394. The principal reasonably
concluded that the actions would substantially disrupt the operations within the school. Id. This
Court reasoned that the “special characteristics of the school environment” and the school’s
interest in stopping drug use allowed the school to restrict the expression of the student in a
reasonable manner. Id. at 395.
It is clear that the school’s hair length regulation is reasonable and is not the only liberty
students must give up. For example, students that drive must park in designated lots and usually
cannot go to their cars until school is over. Additionally, lunch breaks are at scheduled times and
eating outside of the cafeteria is generally prohibited. Students also may not leave school early
without parent permission. Since the primary goal of a school is to provide education, the Policy
does not affect the right of the students to obtain an education. Here, as in Morse, students choosing
to participate in extracurricular activities must abide by school policies when those policies further
a reasonable, compelling interest. The validity of these policies should not be based on the
subjective view of the Policy, but on whether or not the Policy is a reasonable regulation furthering
a school’s interests and outweighing the interests of the students.
Similar to the haircut policy in Karr, the Policy here allows for grooming guidelines that
are necessary to “promote discipline, maintain order, secure the safety of students, and provide a
health environment” and is applicable to athletic teams. (R. at 33.) The Policy here, as in Karr,
was implemented for a reasonable basis—to promote team unity and provide a clean-cut image.
(R. at 34.) Such reasons are not only easy to agree with, but pass the rational basis standard. School
Corporation has an interest in providing a healthy environment, conducive to learning and applies
the Policy to do so. (R. at 33.)
12
School Corporation has a reasonable and rational interest in promoting the Policy,
supported by the state’s interest in promoting effective education systems, outweighing the
student’s desire to wear long hair. Consequently, Respondent Due Process claims should be
rejected and this Court should find as such.
B.
The Circuit Court Improperly Relied on the Equal Protection Clause to
Negate the Haircut Policy
The circuit court erred in determining that the Policy discriminated against boys. The Equal
Protection clause has not generally been relied upon as a basis for invalidating hair length policies.
Karr, 460 F.2d at 616. When the classification of a regulation is not based on a suspect criterion,
a lesser level of scrutiny should be applied. Id. There is no unequal protection in policies regulating
the length of boys hair but not girls. King v. Saddleback Jr. Coll. Dist., 445 F.2d 932, 939 (9th Cir.
1971).
The court in Karr denied the theory that only the Seventh Circuit accepts. Karr, 460 F.2d
at 616. The theory that—between male students—any classification based upon hair length
violates the Equal Protection clause, is wholly rejected because the classification is not based on a
suspect criterion—namely race or wealth. Id. These suspect standards require a much more strict
standard of review. Id. Consequently, the court held that the classification is only unacceptable
under the Equal Protection clause should the court be unable to find any rational basis for the
regulation. Id.
In King, the court was tasked with determining if a hair length regulation violated students
Due Process and Equal Protection rights. King, 445 F.2d at 939. The court held, inter alia, that the
regulation was applied equally and found no showing of unequal protection. Id. The difference in
requiring boys to have short hair but not girls was not considered a difference in classification and
did not create a substantial constitutional question. Id.
13
School Corporation maintains that the reasoning in Karr is applied here because the
regulation in the present case only pertains to boys and not girls. It is telling that only the Seventh
Circuit has found disparately from other circuits. The fact that gender is a “quasi-suspect” class
further appeals to the recognition that only a rational basis exist for the regulation to be valid. To
apply a stricter standard, as the lower court has, is in error. Additionally, the reasoning in King
applies here as well because the mere regulation of hair length does not constitute a difference in
classification. School Corporation grants coaches the ability to apply reasonable standards for their
teams. (R. at 21.) The circuit court rightfully mentions the stipulation agreed upon that other teams,
including female teams, have grooming policies, yet goes on to question the details of those
policies. It should be enough that the fact that female teams alike have grooming policies pertaining
to their athletes. This clearly is in line with the holding in King that no difference in classification
exists.
Accordingly, the Policy should not be found to violate the Equal Protection clause. Further,
because gender is a quasi-suspect class, a lesser standard of review must apply and will the
regulation only found to be invalid if—proven by the challenger—no rational basis exists.
As a majority of the circuits have held, haircut policies should undergo a rational basis test.
The burden, then, is on the challenger to show that no rational basis existed. It is evident that the
Policy passes the challenge as it provides a reasonable basis and does not infringe upon the
Respondent Due Process and Equal Protection Rights.
II.
THE WIDELY ACCEPTED AND UTILIZED BASEBALL RULE PROPERLY
DEFINES SCHOOL CORPORATION’S DUTY TO ITS SPECTATORS BY
BALANCING SPECTATOR DESIRE AND SAFETY
Baseball is known as America’s pastime. The game is a spectator sport that attracts crowds
to watch and engage intimately in the game. In fact, “fans often greet out-of-play baseballs with
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cheers 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 Prof’l Baseball Club, Inc., 185 N.J. 70, 81
(N.J. 2005); see also Rudnick v. Golden W. Broadcasters, 156 Cal. App. 3d 793, 802 (Cal. Ct.
App. 1984)(“[T]he chance to apprehend a misdirected baseball is as much a part of the game as
the seventh inning stretch or peanuts and Cracker Jack.”). Many spectators prefer to attend the
game without a net or a fence obstructing their view of the field despite the inherent risk of errant
balls, such as foul balls, leaving the field of play. See Benejam v. Detroit Tigers, Inc., 246 Mich.
App. 645, 651 (Mich. Ct. App. 2001). The stadium operator “has a legitimate interest in catering
to these desires” and owes spectators a duty to exercise reasonable care under the circumstances.
Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 300 (N.Y. 1981). In order to fairly balance
spectator desire and safety while maintaining baseball as a spectator sport, the Baseball Rule was
created to define the duty owed by a stadium operator.
The circuit court erred when it declined to recognize a stadium operator’s duty to its
spectators should fall under the Baseball Rule. The Baseball Rule is warranted for Tulania because
it clarifies School Corporation’s duty to its spectators by satisfactorily balancing spectator interest
and safety while embracing overly one hundred years of American jurisprudence that continuously
applies the Baseball Rule. The School Corporation fulfilled its duty to exercise reasonable care
within the circumstances of hosting a baseball game without breach. For these reasons, Tulania
should follow the Baseball Rule, and this Court should reverse the circuit court.
A.
The Baseball Rule Guides School Corporation’s Duty to Spectators Under
General Negligence Standards Due to Circumstances Surrounding the Game
of Baseball
Stadium operators owe a duty to protect spectators, but stadium operators are not required
to completely cover every area of the stadium to eliminate the possibility of an errant ball entering
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the stands. See Akins, 53 N.Y.2d at 331. Instead, the Baseball Rule, also known as the limited duty
rule, clarifies that the duty owed by stadium operators is to protect the most dangerous part of the
stadium, which is considered behind home plate. Id. at 330. So long as a spectator injury from an
errant ball did not result from faulty netting or an insufficient amount of protective seating, the
stadium operator fulfilled its duty. See Benejam, 246 Mich. App. at 649. Ultimately, the Baseball
Rule defines the duty owed by a stadium operator without eliminating a duty to spectators that is
consistent with negligence schemes, such as comparative negligence or comparative fault rules.
The duty to exercise reasonable care for protecting spectators against injuries is not
eliminated under the Baseball Rule, but instead, clarified to set the “outer limits” of liability. See
Bellezzo v. Arizona, 174 Ariz. 548, 554 (Ariz. Ct. App. 1992); see also Turner v. Mandalay Sports
Entm’t, LLC, 180 P.3d 1172, 1175-76 (Nev. 2008) (“[The Baseball Rule] does not eliminate the
stadium owner’s duty to exercise reasonable care under the circumstances . . . rather it defines that
duty in detail.”). The Baseball Rule flows from general principles of tort negligence that require a
plaintiff bringing a negligence claim to establish the defendant owed a duty of care to the plaintiff,
the defendant breached that duty, the breach was the proximate cause of the harm plaintiff
sustained, and damages resulted from that breach. See Restatement (Third) of Torts: Liability for
Physical and Emotional Harm §6 cmt. b (2010). The Baseball Rule merely clarifies the duty owed
by stadium operators to its spectators.
Furthermore, the Baseball Rule complies with a comparative negligence or comparative
fault scheme. See Akins, 53 N.Y.2d at 329; see also Reed-Jennings v. Baseball Club of Seattle,
L.P., 188 Wash. App. 320, 331 (Wash. Ct. App. 2015) (“[Plaintiffs] demonstrate nothing about
comparative fault that precludes the continued viability of the limited duty rule [also know as the
Baseball Rule].”), appeal denied, 361 P.3d 747 (Wash. 2015). For example, in Akins v. Glens Falls
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City School District, the highest court in New York analyzed the assumption of risk doctrine where
a plaintiff that was injured by a foul ball while standing along the third base line at a high school
baseball game. 53 N.Y.2d at 329. The court determined the assumption of the risk doctrine
precludes a spectator’s cause of action without acknowledging any degree of care owed by the
stadium operator. Id. Noting New York’s shift away from the assumption of the risk doctrine to
an adoption of the comparative negligence rule, the court analyzed the stadium operator’s duty
anew. Id. The court found, “like any other owner or occupier of land, [a stadium operator] is only
under a duty to exercise reasonable care under the circumstances to prevent injury to those who
come to watch the games played on its field.” Id. (citations omitted). In recognizing the interest of
spectators wanting to watch the game without having their view obstructed and the safety of
spectators against the inherent risk of errant balls, the court proceeded to adopt the Baseball Rule.
Id. at 331.
The Baseball Rule applies to any errant ball that leaves the field of play, such as in instances
where the spectator is injured while at a concession stand or leaving the restroom. For example, in
the New York case of Wade-Keszey v. Town of Niskayuna, the stadium operator did not breach its
duty to a spectator that was mother of a baseball player injured by a foul ball while walking to the
bathroom along the baseball field. 4 A.D.3d 732 (N.Y. App. Div. 2004), appeal denied, 2 N.Y.3d
708 (N.Y. 2004). The court applied the Baseball Rule and found that it does not “require ballpark
owners to install protective screening to shield spectators on their way to bathrooms, concession
stands and parking lots.” Id. at 734; accord Alwin v. St. Paul Saints Baseball Club, Inc., 672
N.W.2d 570, 573 (Minn. Ct. App. 2003) (finding the stadium operator owed no duty to the
spectator who was injured by a foul ball while returning to his seat from the restroom).
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Consistent with Wade-Keszey and Alwin, in Turner v. Mandalay Sports Entm’t LLC, the
Nevada Supreme Court found that the stadium operator did not need to screen around a concession
area located several hundred feet from home plate to prevent errant balls from entering the area.
Turner, 180 P.3d at 1176. The spectator was struck in the concession area that had some parts of
the area obstructing spectators’ view of the field. Id. Because the concession area did not pose an
unduly high risk of injury from foul balls, the stadium operator did not have a legal duty to provide
screening or take other precautions in that area. Id.
Similarly, the School Corporation is “not an insurer of the safety of spectators.” Akins, 53
N.Y.2d at 329. Like any other landowner, School Corporation’s duty was to exercise reasonable
care under the circumstances. Id. To protect Respondent from injury of a foul ball, School
Corporation owed Respondent netting between the most dangerous area of the stadium and a
seating area that had sufficient seats behind the netting to satisfy a reasonable demand. (R. at 36,
53.) Regardless of whether Respondent could see the batter (R. at 36), the Baseball Rule’s relevant
inquiry is the fulfillment of the stadium operator’s duty to the spectator as it applies to the open
and obvious risk of errant balls. Here, the School Corporation fulfilled its duty to exercise
reasonable care under the circumstances.
B.
Preserving Baseball as a Spectator Sport Compels Adoption of the Baseball
Rule
The circuit court took a swing at the Baseball Rule, in an attempt to change a reasonably
predictable definition of duty, to one that ensures “fact-based uncertainty”. See Crespin v.
Albuquerque Baseball Club, LLC, 216 P.3d 827, 838 (N.M. Ct. App. 2009)(Kennedy, J.,
dissenting), majority rev’d, Edward C. v. City of Albuquerque, 148 N.M. 646 (N.M. 2010).
Without the guidance of Baseball Rule, stadium operators must guess at what would constitute
setting forth a reasonably safe environment with competing interests of spectators desiring to be
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part of the game. For example, the establishment of procedures for netting to prevent the inevitable
foul ball from leaving the field of play would be difficult because every stadium is different in
design, seating configuration, or distance from seating areas to the field of play. See Gil Fried &
Robin Ammon, Baseball Spectators' Assumption of Risk: Is It “Fair” or “Foul”?, 13 MARQ.
SPORTS L. REV. 39, 60 (2002). The practicalities of the Baseball Rule recognize that “[t]he nature
of the game – and the spectators’ involvement in it – is such that absolute protection around the
stadium would be impractical. Any other formulation would defy a reasonable point at which duty
can be fixed.” Haymon v. Pettit, 9 N.Y.3d 324, 328 (N.Y. 2007). The Baseball Rule provides
appropriate guidance, flexibility, and safety to warrant its application.
Without the Baseball Rule, a burden would weigh heavily on stadium operators to screen
less dangerous areas. Screening less dangerous areas for protection against the open and obvious
risk of foul balls conflicts with the desires of spectators and forces stadium operators to face
“bourgeoning litigation that might signal the demise or substantial alteration of the game of
baseball as a spectator sport.” Robert J. Thorpe, Way Out in Left Field: Crespin v. Albuquerque
Baseball Club Rejects Nearly One Hundred Years of American Jurisprudence By Declining to
Adopt the Baseball Rule in New Mexico, 17 SPORTS LAW. J. 267, 279 (2010)(citing Benejam, 635
N.W.2d at 223); accord Wex S. Malone, Contributory Negligence and the Landowner Cases, 29
MINN. L. REV. 61, 77 (1945)(“A stadium protected in all its areas would prove financially
disastrous to management . . . and would outrage many devotees of baseball would like to watch
the game without obstruction.”).
The Baseball Rule provides sufficient flexibility, contrary to the circuit court position, by
allowing factual questions concerning a stadium operator’s possible breach of its duty to reach a
jury on issues not inherent to baseball, such as injury stemming from a separate activity unrelated
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to baseball within the stadium. See Alwin, 672 N.W.2d at 573-74. Therefore, specific
circumstances concerning a stadium operator’s possible negligence can be addressed while
preserving the integrity of the game. Without imposing the Baseball Rule, the game of baseball
as a spectator sport could be greatly diminished. See Benejam, 635 N.W.2d at 223.
Furthermore, although a stadium operator, like any other owner of land, is not an “insurer
of the safety of its spectators”, the Baseball Rule imposes meaningful safety precautions on a
stadium operator. Akins, 53 N.Y.2d at 329. For example, in the instant case, the undisputed facts
show School Corporation met and exceeded its duty to Respondent through prudent safety
precautions under the Baseball Rule that yielded, for numerous games over a span of at least seven
seasons, only one incident where a spectator suffered a major injury. (R. at 28.) In compliance
with the Baseball Rule, School Corporation provided seats shielded by a protective net behind
home plate (R. at 36) and there was no proof that spectators wanted seating behind the net and
could not be accommodated (R. at 53). Moreover, School Corporation warned spectators of the
risks and dangers incidental to baseball by posting numerous large warning signs throughout the
stadium alerting spectators they could be injured by a foul ball and announcing over a loudspeaker
before the game that spectators should be alert from batted balls leaving the field of play. (R. at
36-37); but see Benejam, 246 Mich. App. at 635 (stating the stadium operator had no duty to
provide a warning regarding the risk of injury from objects leaving the baseball field).
School Corporation exemplifies a reasonably safe environment from the known and
obvious risk of foul balls in fulfilling its duty under the Baseball Rule. This reason in itself is a
compelling policy reason for the adoption of the Baseball Rule in Tulania. Overall, as an important
matter of public policy, the Baseball Rule preserves the spectators freedom of choice while placing
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a clear, manageable burden on stadium operators to use sensible measures in protecting spectators
against unreasonable risk of harm.
C.
The Baseball Rule Sets Stadium Operator’s Duty to Spectators in an
Overwhelming Majority of Jurisdictions Without Need of Legislative Action
Although there is no Tulania case law on point, an overwhelming number of jurisdictions
use a variation of the Baseball Rule to define the duty owed by a stadium operator for errant balls
leaving the field of play. See e.g., Turner, 180 P.3d at 1172 (Nevada); Maisonave, 185 N.J. at 70
(New Jersey); Costa v. Boston Red Sox Baseball Club, 81 Mass. App. Ct. 299 (Mass. App. Ct.
2004) (Massachusetts); Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59 (Va.
2003) (Virginia); Benejam, 246 Mich.App. at 645 (Michigan); Lawson v. Salt Lake Trappers, Inc.,
901 P.2d 1013 (Utah 1995) (Utah); Bellezzo, 174 Ariz. at 548 (Arizona); Arnold v. City of Cedar
Rapids, 443 N.W.2d 332 (Iowa 1989) (Iowa); Friedman v. Houston Sports Ass’n, 731 S.W.2d 572
(Tex. Ct. App. 1987) (Texas); Rudnick, 156 Cal.App.3d at 793 (California); Akins, 53 N.Y.2d at
325 (New York); Powless v. Milwaukee County, 6 Wis.2d 78 (Wis. 1959) (Wisconsin); Hunt v.
Portland Baseball Club, 207 Or. 337 (Or. 1956) (Oregon); Erickson v. Lexington Baseball Club,
233 N.C. 627 (N.C. 1951) (North Carolina); Hunt v. Thomasville Baseball Co., 80 Ga. App. 572
(Ga. Ct. App. 1949) (Georgia); Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507
(Minn. 1932) (Minnesota); Lorino v. New Orleans Baseball & Amusement Co., 16 La. App. 85
(La. Ct. App. 1931) (Louisiana); Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175 (Ohio
1925) (Ohio); Kavafian v. Seattle Baseball Club Ass’n, 105 Wash. 215 (Wash. 1919)
(Washington); Crane v. Kansas City Baseball & Exhibition Co., 168 Mo. App. 301 (Mo. Ct. App.
1913) (Missouri). The Baseball Rule has existed for over one hundred years, and it continues to
be utilized and adopted for defining the duty a stadium operator owes to spectators. See e.g.,
Benejam, 635 N.W.2d at 225 (adopting the Baseball Rule for Michigan in 2001); Turner, 180 P.3d
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at 1172 (adopting the Baseball Rule for Nevada in 2008); Thurmond, 265 Va. at 59 (adopting the
Baseball Rule for Virginia in 2003).
It is within a court’s authority to establish a duty of care where none has previously existed.
See Rountree v. Boise Baseball, LLC, 154 Idaho 167, 172 (Idaho 2013). Notably, the
overwhelming majority of jurisdictions that use the Baseball Rule further demonstrate that courts
commonly prescribe negligence duties; therefore, it is not necessary for this a court to defer to the
legislature for clarifying the duty of care owed by stadium operators.
In the instant case, the circuit court muted the judgment of district court judges/umpires in
interpreting basic tort liability by suggesting the Baseball Rule should be deferred to the
legislature. The district court’s application of the Baseball Rule did not come out of left field to
suggest a usurpation of legislative power when it merely identified the parameters in meeting the
stadium operator’s duty. Instead, adopting the Baseball Rule allowed the district court to make the
call on the duty School Corporation owed under the circumstances. The district court had good
reason to rely on the Baseball Rule because the rule prevails in a majority of jurisdictions and aptly
considers the strong policy reasons in what constitutes a reasonably safe premises under the
circumstances of a baseball game.
This Court has the opportunity to not isolate Tulania from an overwhelming amount of
other jurisdictions and continue the custom of applying the Baseball Rule. Adopting the Baseball
Rule will provide clarification for the duty stadium operators owe to spectators against errant balls.
Accordingly, a stadium operator should owe a duty of reasonable care to prevent spectator injury
from errant balls under the Baseball Rule. This Court should reverse the decision of the circuit
court and remand the case for application of the Baseball Rule.
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CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the United States
Court of Appeals for the Fourteenth Circuit.
Respectfully submitted,
Team 15
Counsel for Petitioners
Dated: January 9, 2016
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