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Excerpted From: Alesha Hamilton, Untangling Discrimination: The Crown Act and Protecting Black Hair, 89 University of Cincinnati Law Review 483 (2021) (176 Footnotes) (Full Document)


AleshaHamiltonImagine you send your six-year-old son to school for his first day of first grade. You dress him in a tie and a nice shirt and arrive at the school to meet his new teachers. He is bursting with excitement and on his best behavior. However, the school administrators say that your son cannot pursue his education that day--because of his hair. This is the story of CJ Stanley, a six-year-old Florida student who was refused the opportunity to learn due to an alleged violation of the school's dress code, which discriminates against Black hair. This is the unfortunate experience of many Black individuals in various settings across the country--denial of employment or educational opportunities based on grooming policies that outlaw Black hair. However, these stories have been increasingly publicized the last few years via social media and the news, leading state and local governments to change their discrimination statutes to consider hair discrimination a form of racial discrimination.

Civil rights groups and grassroots movements have long focused their efforts on state and local governments to more adequately protect minorities and others adversely affected by existing federal laws, or lack thereof. This is not a new trend. Different issues have dominated the conversation at different points throughout history. For years, community coalitions, religious organizations, nonprofits, and legal aid entities have all collaborated in an effort to advance regulation on behalf of various social causes. In fact, over three decades ago, civil rights groups focused on cities and states to protect rights such as maintaining affirmative action policies, advocating for Social Security disability benefits, funding for education programs, and regulating toxic waste sites. Today, advocates focus on issues like protecting immigrants through the establishment of sanctuary cities, legalizing and decriminalizing marijuana in an effort to reduce the prison population, and preventing hair discrimination. While much local government legislation on these issues has been positive, some municipalities have recently wielded their power to cripple individual rights. This is exemplified in the institution of anti-transgender “bathroom bills” and ordinances that criminalize homelessness. This oscillation of policy and tension between politically liberal and politically conservative jurisdictions highlights the practical concerns with allowing municipalities to dominate the national stage on social issues. Although states have attempted to preempt local ordinances, cities are fighting back.

The importance of state and local governments in protecting civil rights has recently been highlighted through the new increase in hair discrimination laws to protect Black Americans. Legislatures have enacted these hair discrimination laws in response to various news stories about African Americans of all ages and genders being rejected from schools, jobs, and other public places due to their natural hair or protective hairstyles. Because it is often easier for individuals and civil rights groups to assert more targeted pressure on local governments, the fight for equal treatment of natural hairstyles has been fought almost exclusively in state and local legislatures and state courts. However, the fight to end Black hair discrimination has recently entered the federal arena. Congress introduced the Creating a Respectful and Open World for Natural Hair Act (“CROWN Act”) in December 2019, which aims to prohibit discrimination based on natural hair textures and protective hairstyles on the federal level. Legislators who introduced the bill believe that race and hair discrimination are two sides of the same coin.

Part II of this Comment will explore the general historical tension between federal, state, and local laws, and then analyze the recent movement of hair discrimination laws. Part III will discuss the future of hair discrimination laws and the impact of the CROWN Act on reducing hair discrimination against Black individuals in the United States.

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While local governments can serve as laboratories of innovation and policymaking for the greater good of their communities, the American concept of federalism only allows local governments to govern certain aspects of everyday life--other protections must be provided by the federal government. Furthermore, though local authority is often used to advance civil rights and freedoms, this power can also be abused to trample individual liberties. In order to properly protect African Americans from discrimination based on natural hair and protective hairstyles, federal action is required.

Perhaps phrased best by Senator Cory Booker, who introduced the CROWN Act in the Senate, “implicit and explicit biases against natural hair are deeply ingrained in workplace norms and society at large.” While some of the state and local laws focus on hair discrimination solely in the context of employment, the CROWN Act is more comprehensive. The CROWN Act prohibits hair discrimination in several different spheres, including federally assisted programs, housing programs, public accommodations, and the workplace. As a result, the CROWN Act would provide uniform guidance for the entities that are required to comply. Thus, these institutions could modify their existing grooming policies and cultures in order to promote acceptance of African Americans in the classroom, at work, and in public places.

An individual's job security or perceived professionalism and a student's right to go to school should not be impeded by biological characteristics. Furthermore, this important right should be protected swiftly by the federal government, rather than relying on state and city legislatures. In the realm of hair discrimination law, Congress has one logical path to take--pass the CROWN Act and outlaw hair discrimination on the federal level.

Associate Member, University of Cincinnati Law Review 2019-2020.

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