*1264 A. Hair Length Discrimination as Sex Discrimination: An Overview of Boys' Hair Length Cases

Anna-Lisa F. Macon  Hair's the Thing: Trait Discrimination and Forced Performance of Race Through Racially Conscious Public School Hairstyle Prohibitions, 17  University of Pennsylvania Journal of Constitutional Law 1255 (April, 2015) (194 Footnotes)


  The U.S. Supreme Court has not determined whether schools can regulate students' hair length and style.  However, in Tinker v. Des Moines Independent Community School District, the Court considered whether public school students wearing black armbands in school to protest the Vietnam War violated the school dress code.  In Tinker, primary and secondary public school students wore black armbands to school to protest the Vietnam War, in violation of a known school policy under which students who refused to remove these armbands when asked would be suspended.  Though the Court distinguished the armband prohibition at issue from dress code regulations for attire and hairstyle,  the Court's holding still provides guidance for interpretation of school hairstyle regulations. According to the Court, "where there is no finding and no showing that engaging in the forbidden conduct [[(here, wearing black armbands)] would  materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained."

However, the Supreme Court later backed away from the Tinker standard.  In Morse v. Frederick, the Court allowed a principal to suspend a student for displaying a banner reading, "BONG HiTS 4 JESUS," at a school sponsored event.  The Court found deterring illegal drug use was an important and compelling interest that warranted restricting student speech.  The Court held that Tinker's "mode of analysis . . . is not absolute," since the Court does not always *1265 conduct Tinker's "substantial disruption" analysis.  Ultimately, the Court supplemented Tinker without overturning it. To restrict students' rights, schools must prove the prohibited behavior " materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,"'  or, that curbing certain activities serves an " important . . . [and] compelling' interest."

From Tinker and Morse, I glean two legal rules to evaluate the validity of public school dress code policies: (1) whether schools have an important or compelling interest in restricting the student action,  and (2) whether the prohibited student action "materially and substantially disrupt[s] the work and discipline of the school."  These tests are not mutually exclusive.  Courts could use one or both to evaluate a public school dress code prohibition.

Based on the legal framework dictated by the Supreme Court, lower courts have come to a variety of different conclusions when adjudicating public school dress code restrictions on boys' hair length. "A bare majority of courts has held that school rules that absolutely prohibit a student from wearing long hair are unconstitutional."  Only when the long hair satisfies one or both of the Supreme Court's tests by causing disruption,  or undermining an important or compelling school interest,  can these restrictions stand. However, even taking these tests as given, there is rampant discord among courts as to their proper application in boys' hair length cases. "Federal appellate courts in the First, Fourth, Seventh, and Eighth Circuits have invalidated such [dress code] rules; federal appellate courts in the Fifth, Sixth, Ninth, and Tenth Circuits, have upheld them."

*1266 Though a significant amount of case law based on First Amendment protections, state regulations, and other constitutional rights exists in this area,  this Comment will focus on Fourteenth Amendment sex discrimination claims, as these cases most closely approximate responses to racially conscious dress codes. Despite this focus, a distillation of the case law reveals a number of considerations that remain constant among the varied legal responses:

In determining the constitutionality of a public school's "grooming rule" that limits the length of boys' hair, the outcome depends on balancing the male student's right to be free from gender discrimination and the educational policy which the school seeks to further by teaching grooming and hygiene, instilling discipline, maintaining order, and teaching respect for authority. The outcome also depends on a showing as to whether the activity which the school is attempting to regulate (i.e., the wearing of long hair) is one which, if not regulated, will disrupt or materially interfere with the school's mission to educate students . . ..

Unfortunately, some courts accord greater deference to public schools in determining and enforcing student hairstyle prohibitions than is warranted by the Supreme Court's decisions. The Fifth Circuit went so far as to adopt "a per se rule that such [school hairstyle] regulations are constitutionally valid."  In effect, the Fifth Circuit completely subordinated the constitutional rights of public primary and secondary school students to the whim of school authorities. In Karr v. Schmidt, the Fifth Circuit declared,

district courts need not hold . . . evidentiary hearing[s] [for these] cases . . . . Where a complaint merely alleges the constitutional invalidity of a high school hair and grooming regulation, the district courts are directed to grant an immediate motion to dismiss for failure to state a claim for which relief can be granted.

In this case, the Fifth Circuit denied the plaintiff's Fourteenth Amendment equal protection claim, and viewed judicial oversight of school hairstyle cases as a violation of federalism that sapped legitimate state power.  The Fifth Circuit refused to utilize a higher standard of scrutiny despite the policy's unequal application between *1267 male and female students; female students were allowed to have long hair but male students were not.  However, had the plaintiff alleged discrimination based on the suspect classification of race, the court would have been forced to apply a more "rigorous" standard of equal protection scrutiny.

Other courts, like the Seventh Circuit, recognize these policies as a sex-based denial of equal protection.  In Crews v. Cloncs, the Seventh Circuit directed a public high school in Indiana to admit a male student with long hair.  The court found the school's exclusion of the student "resulted primarily from a distaste for persons . . . who do not conform to society's norms as perceived by [the school]."  Because school administrators offered no reasons why health and safety objectives that preclude boys from having long hair were "not equally applicable to high school girls," the school's action constituted "denial of [Fourteenth Amendment] equal protection to male students."  Constitutional protection from racially conscious public school hairstyle prohibitions is a logical extension of the Seventh Circuit's logic in Crews v. Cloncs and the Fifth Circuit's concession in Karr v. Schmidt.