Legal Matters

An Oklahoma student was sent home because school officials believed her dreadlocks distracted from a respectful environment. A school in Ohio faced criticism for banning “Afro puffs” and small twisted braids, and a North Carolina school came under scrutiny when students were forbidden from wearing African head wraps. A boy in Mississippi was suspended after coming to school with pink hair, and a Native American student was sent home from kindergarten with orders to cut his long hair. Students continue to challenge these types of policies as racist, culturally insensitive, and sexist. They contend that dress codes disproportionately punish students of color and gender-nonconforming students. The media continues to highlight the current controversies, and courts are sometimes asked to sort it all out.

What Is the Controversy?

Although school officials might argue that a ban on all braids is a neutral policy, it is important to consider that this policy might have a greater impact on a specific racial group. Indeed, physical and cultural traits, including hair textures and styles, is often a proxy for race. Anna-Lisa F. Macon, author of “Hair’s The Thing: Trait Discrimination and Forced Performance of Race Through Racially Conscious Public School Hairstyle Prohibitions,” suggests that in the same way boys’ hair length regulations implicitly devalue a feminized attribute (e.g., long hair), the prohibition of Afro puffs or braids, for example, devalues black culture. Such school policies constitute trait discrimination and “encourage physical and cultural assimilation to the dominant ideal.” School officials should consider hair policies that impact a student’s race, culture, religion, and gender. It is also important to note that an individual’s identity may include multiple intersecting factors, including race, culture, and gender.

Legal Issues at Play

Congress has enacted federal laws to prohibit discrimination based on race and sex. Constitutional provisions impact this issue as well. Title VI of the Civil Rights Act of 1964 forbids discrimination on the basis of color, race, or national origin. Of course, racial discrimination may take many forms, but targeting students for natural hair, for example, raises Title VI concerns. Under Title IX of the Education Amendments of 1972, educational recipients of federal funds are prohibited from discriminating on the basis of sex. To illustrate, it might be considered sex discrimination if a school policy targets boys’ hair in a different way than girls’ hair.

Under the U.S. Constitution, when similarly situated public school students are not treated the same on account of hairstyle, equal protection issues under the Fourteenth Amendment may be involved. Students have a First Amendment right to express themselves in public school until that expression creates a material and substantial disruption. School policies can be created that curtail speech that is disruptive or vulgar, while also being sensitive to race, culture, religion, and gender.

Challenges Involving Hair

A charter school in Massachusetts disciplined two African-American girls who wore braided extensions. Also, during Eid al-Fitr, the most important religious holiday celebrated by Muslims, this same school required a Muslim student to remove henna from her hair. School officials felt that the braids and henna were “distracting.” The American Civil Liberties Union (ACLU) filed a complaint with the state’s department of education on the student’s behalf. The ACLU also filed an administrative complaint after a 6-year-old male student was prohibited from wearing dreadlocks. A lawsuit was filed in New Jersey after a white referee forced a student to cut his hair before a wrestling match. In Louisiana, parents filed a lawsuit after school officials disciplined students for braid extensions; they agreed to dismiss the suit after the policy was changed.

Although the U.S. Supreme Court has not directly addressed the matter within the context of K–12 schools, federal courts have weighed in. For example, the 5th Circuit Court of Appeals (Louisiana, Mississippi, and Texas) found a student’s religious liberties were violated when school officials required a Native American student to wear one long braid tucked into his shirt or a bun on top of his head instead of wearing two long braids. And the 7th Circuit Court of Appeals (Illinois, Indiana, Wisconsin) ruled that a school policy requiring male interscholastic basketball students to keep their hair short raised both equal protection and Title IX concerns; the policy treated male and female athletes differently.

What Might Principals Consider?

Greater racial and ethnic representation is growing, and the number of students who identify as LGBTQ has increased. As such, school leaders must encourage thoughtfulness and understanding of policy language implications and subsequent actions as they relate to the entire student body—not just a more familiar subset. These policies present an opportunity for schools to teach students about difference and respect.

When students’ hairstyles are labeled disruptive, trendy/faddish, and inappropriate, it raises several concerns. Forced assimilation in schools with regard to hair can cause needless controversy and costly litigation. Thus, school leaders must foster supportive environments and challenge notions of exclusion by exercising a greater level of sensitivity when creating or reviewing policies.

School leaders should consider the following to minimize potential legal issues because of hairstyles:

  1. Increase awareness around cultural, racial, gender, and religious issues.
  2. Engage stakeholders who mirror the student body they serve.
  3. Apply critical consciousness when drafting and considering language and actions regarding hair policies.

If a policy negatively impacts unique groups of students without a return in safety or productivity for all, school leaders should reconsider those policies.


Jantina Anderson is a doctoral student pursuing urban education studies with a minor in leadership, administration, and policy at Indiana University, Indianapolis. She is also a human resources leader for a Fortune company. Suzanne E. Eckes, JD, PhD, is a professor at Indiana University, Bloomington, IN. Taji Gibson is a doctoral candidate in the Education Leadership Program at Indiana University. She is also a research associate at the Center on Education and Lifelong Learning at the Indiana Institute on Disability and Community.


References

A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010).

BlackNews.com (Dec. 5, 2018). Lawsuit filed against school for banning 6-year-old student because of his hair.

Crenshaw, K. (1989). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory, and antiracist politics. University of Chicago Legal Forum, 1(8), 139-146.

Dailey, G. (Jan. 29, 2019). Lawsuit filed after JCPS wrestling coach accused of cutting middle school student’s hair. 13KRCG.

Fennell v. Marion Indep. Sch. Dist., 963 F.Supp. 2d 623 (W.D. Tex. 2013).

Gereluk, D. (2007). What not to wear: Dress codes and uniform policies in the common school. Journal of Philosophy of Education, 41(4), 643-657., 743 F.3d 569 (7th Cir. 2014).

Kalin Mash, J. (Feb. 17, 2017). Male student suspended for dyeing hair pink, fights to change school policy. Today. 

Klein, R. (June 25, 2013). Ohio school apologizes after attempting to ban ‘afro-puffs’ & ‘twisted braids.’ Huffpost.

Lazar, K. (May 16, 2017). ACLU files complaints over Malden school’s policy on braids. Boston Globe.

Macon, A.F. (2015). Hair’s the thing: Trait discrimination and forced performance of race through racially conscious public school hairstyle prohibitions, University of Pennsylvania Journal of Constitutional Law, 17, 1255-1281.

McGill, K. (2017). Lawsuit over Louisiana’s school hair policy is dismissed. Associated Press.

Moya-Smith, S. (Aug. 28, 2014). Navajo kindergartner sent home from school, ordered to cut hair. Indiana Country Today.

Newport, F. (2018). In U.S., Estimate of LGBT population rises to 4.5%. Gallup.

Persch, J.A. (Sept. 8, 2013). School that barred 7-year-old’s dreadlocks changes dress-code policy. Today.

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

U.S. Census Bureau (2015). Projections of the Size and Composition of the U.S. Population: 2014 to 2060. Washington, D.C.

Wilson, A. (Feb. 7, 2016). Durham students plan demonstration to wear African head wrap. ABCNews.