Many parents and school administrators across the state and nation have followed the national media attention regarding one Texas’ student’s tumbling locs and his opposition to his Texas public school district’s dress and grooming policy with interest. The policy in question is one that may be commonly found in student handbooks
across the state of Texas; that is, that boys must wear their hair above the shirt collar, eyebrows and earlobes. While most urban and suburban public school districts have opted for more permissive grooming standards, in smaller communities across the state, rules requiring shorter hair length for boys can be commonly found as part of the student dress code. School districts that retain some form of hair length and grooming standards may be re-evaluating those policies to make certain that
student legal rights are not violated.
In Barber v. Colorado Indep. Sch. Dist.1 the Texas Supreme Court upheld a school grooming regulation that prohibited boys from wearing earrings and requiring their hair to be worn above the collar, the bottom of the ear and combed out of the eyes. Austin Barber was an eighteen-year old senior, and he believed the Texas Constitution allowed him to wear his hair as he chose to, and that the dress code
violated his ability to express individualism and personal freedom; he also believed the dress code was a form of sexual discrimination. The Supreme Court disagreed, holding that Barber’s claims “do not manifest such an affront to his constitutional rights as to merit [judicial] intervention” in that case. Because students in a public school setting do not enjoy constitutional rights coextensive with adults in a college setting, the Supreme Court determined that such matters should rest
with the local school board, not the courts.
Two years later, in Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate2, the Texas Supreme Court again ruled in favor of a school district regulation that required boys to wear their hair above the shirt collar. Zachariah, a third grader, refused to cut his hair, and school officials denied the family’s request that he be permitted to wear it pinned up in lieu of cutting the ponytail. Zachariah was then educated in the school district’s in-school
suspension classroom until he withdrew from school. The family brought suit against the school district, alleging violation of the state’s Equal Rights Amendment. The Court reasoned that a “requirement that males wear their hair no longer than a certain length may be out of step with the social norms of the moment, but it does not deprive male students of an equal opportunity to receive an education or to participate in school function…[h]air length restrictions for male students impose no
barriers that operate to favor one sex over the other.”
The 5th Circuit has held that there is no right “within the plain meaning of the Constitution to wear one’s hair in a style that suits the wearer."3 However, while the state and federal constitutions and equal opportunity laws may not be violated by a hair length policy for boys, a policy that prohibits long hair styles on boys may violate the Texas Religious Freedom Restoration Act or the Free Exercise Clause of the
First Amendment for students for whom hair length is a tenet of their religious faith. Many students who are Jewish, Sikh, Native American, or from other religious traditions may wear long hair as part of their sincerely held religious beliefs.4 A student who presents a “sincere religious belief” that requires hair to be worn uncut and visibly long may suffer an undue and substantial burden on the student’s ability to exercise his religious beliefs.5 An
exemption to the hair length policy may be required where the regulation unduly burdens the sincerely held religious beliefs of students.
Texas courts have not offered guidance on the racial and cultural claims raised by African American students who seek exemptions from school district dress and grooming codes based solely upon race or culture. However, in a case addressing hair length, the 5th Circuit has ruled that the length of a student’s hair does not typically convey a discrete message.6 In a University of Pennsylvania Journal of
Constitutional Law comment, the author concludes that courts have not yet found a requirement under the Fourteenth Amendment that school district policies be amended to allow for expanded hair and grooming standards consistent with racial or cultural norms.7 For example, in Littlefield v. Forney Indep. Sch. Dist., the 5th Circuit found that parents’ right to control their children’s education and foster individuality did not give rise to a right to be exempted from the
student dress code under the Fourteenth Amendment.8
The question of gender identity and expression through hair styles have not been fully tested in the 5th Circuit. However, other circuits that have considered cases involving gender expression have found that the expression of a different gender than the student’s biological sex may implicate the First Amendment right to freedom of expression.9 For students presenting with a diagnosis of gender dysphoria, reasonable
accommodations under Section 504 should also be considered.
How should school administrators best navigate these sometimes-troubled waters? To the extent that the locally elected officials choose to maintain student dress and grooming standards, school administrators should apply school those rules consistently and fairly for all students. It is prudent, however, to allow for individual consideration for students seeking an exemption based upon sincerely held religious views. A
request for an exemption form should be made available to parents, together with a well-thought-out process for considering such exemption requests. Additionally, an exemption policy should consider exemptions for medical or disability-related reasons that impact a student’s ability to comply with established grooming standards. In the Littlefield case, the Fifth Circuit determined that the school district could—and should—test the sincerity of a student’s religious objection,
the court acknowledged that such a process is “fraught with difficulty” but “necessary” to test the sincerity of the student’s religious beliefs.
If your District maintains dress and grooming regulations similar to those discussed here, you may want to speak with the District’s legal counsel about providing for a constitutionally sound exemption process.
Article written by Sara Leon
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1901 S.W.2d 447 (Tex. 1995).
2958 S.W.2d 365 (Tex. 1997).
3Karr v. Schmidt, 460 F.2d 609 (5th Cir 1972), cert. denied.
4See A.A. v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010).
5Alabama and Coushatta Tribes of Texas v. Trustees of Big Sandy Indep. Sch. Dist., 817 F. Supp. 1319 (E.D. Texas 1993).
6Karr v. Schmidt, 460 F.2d 609, 613-614 (5th Cir. 1972).
7Macon, Anna-Lisa, Hair’s the Thing: That Discrimination and Forced erformance of Race Through Racially Consious Public School Hairstyle Prohibition, 17 University of Pennsylvania Journal of Constitutional Law 1255 (2015). https://scholarship.law.upenn.edu/jcl/vol17/iss4/7/
8268 F.3d 275 (2001).
9McMillen v. Itawamba Cnty. Sch. Dist., 702 F.Supp. 2d 699 (N.D. Miss.2010) (Openly gay student who wished to attend prom with her girlfriend wearing a tuxedo constituted speech protected by the 1st Amendment)
