III.   Hair We Go: Reinvigorating Fourteenth Amendment Equal Protection to Provide Solutions for State-funded Educational Institutions

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)


  How then, can Americans help the children of Alexina Morrison feel comfortable in their own skin, hair, and culture? How can a supposedly post-racial society help Black boys and girls combat their "proud" American heritage: the indoctrination of White cultural and social supremacy through state-funded education? Though the Supreme Court has not specifically addressed the constitutionality of public school hairstyle restrictions, Justice William Douglas made his opinion on the matter clear. "It seems incredible that under our federalism a State can deny a student education in its public school system unless his [or her] hair style comports with the standards of the school board." "Hair style," he continued, "is highly personal, an idiosyncrasy which I had assumed was left to family or individual *1272 control and was of no legitimate concern to the State."  Justice Douglas's thoughtful and impassioned reasoning guides this discussion of legal remedies to the plight of Vanessa VanDyke and other similarly situated ethnic minorities--children whose bodies are a battle ground for assimilation to the White cultural norm.

Still, making the case for legal protection is no easy task. The majority of schools that contemplated or implemented racially conscious student hairstyle prohibitions were charter schools.  Policing charter schools is sometimes difficult, as these schools straddle the line between public and private.  Charter schools receive government funding while enjoying increased autonomy (like private schools) in return for high academic performance.  The distinction between public and private is extremely important. If charter schools are public schools, they are state actors and Fourteenth Amendment protections extend to students.  If charter schools are private entities, student rights are much more limited because the Fourteenth Amendment only protects individuals from state actors.  In advocating possible solutions to racially conscious student hairstyle prohibitions, I contend that charter schools are, or should be, state actors for purposes of student-focused equal protection litigation. After establishing the applicability of this constitutional protection, we will look to Fourteenth Amendment equal protection to end this cultural war against Black children.

A. Charter Schools as Public Schools for Purposes of Student-Focused Equal Protection Litigation

  The charter school state actor debate is based on the language of 42 U.S.C.  1983. When a U.S. citizen is deprived of "rights, privileges, or immunities secured by the Constitution and [federal] law" by a private actor working "under color" of state law, the deprived party *1273 can bring a legal action against the private/state actor for redress.  But how do we know when a private actor is working under color of state law?  Two recent Ninth Circuit cases, Caviness v. Horizon Community Learning Center, Inc. and Nampa Classical Academy v. Goesling, best illustrate when a private organization, specifically a charter school, becomes a state actor for purposes of  1983. In Caviness, the Ninth Circuit considered whether "a private non-profit corporation" running a public charter school was a state actor.  Regarding personnel decisions specifically, the court determined charter schools in Arizona were not state actors.  The plaintiff, a former teacher and athletic coach at the defendant charter school, was fired for having a questionable relationship with a female student.

Because of allegedly false and defamatory statements made by the defendant charter school's executive director, the plaintiff was unable to secure another teaching job.  He asked for a "name-clearing" hearing on the matter, but the defendant did not respond.  The plaintiff later filed a complaint against the charter school under  1983, alleging the executive director's statements, under color of state law, deprived him of his liberty interest in finding and obtaining work without due process of law.

After de novo review of the facts, the Ninth Circuit upheld the District Court's dismissal of the plaintiff's complaint. Both courts found the defendant charter school was not a state actor for purposes of  1983, and dismissed the case under Rule 12(b)(6).  In determining whether the defendant charter school acted "under color" of state law when firing the plaintiff, the Ninth Circuit emphasized the importance of identifying what function the school served. Only by identifying a private actor's function could the court determine *1274 whether "there [was] such a close nexus between the State and the challenged action" for purposes of  1983.  The mere fact that a state statute identifies an entity as a state actor does not mean said entity functions as a state actor in all cases.  Private entities may be state actors for some purposes and not others. 

Because Arizona exercised very limited control or influence over its charter schools, these schools were not state actors in and of themselves. The court held private entities in Arizona may be considered state actors for some purposes,  but Arizona charter schools do not act under color of state law in their capacity as employers.  The Ninth Circuit clarified this point by citing an earlier decision where a terminated employee sued a private correctional facility in California.  In that case, California granted the private entity " certain powers and privileges under the law to allow [it] to function adequately' as a prison."  Though the court tacitly admitted the entity functioned as a state actor in some respects, the "relevant inquiry" was whether the facility acted under color of state law in its "role as an employer."  In that case, as in Caviness, the private entity was not a state actor in an employment context.

This functional distinction (that a private entity may be a state actor for some purposes and not others  is vital in portraying charter schools as state actors. Based on the Ninth Circuit's analysis, a prisoner in a private correctional institution could bring a  1983 suit against the prison, because the facility acts under color of state law in regard to prisoners' incarceration.  Similarly, courts may be more likely to recognize private charter schools as acting under color of state law if students, rather than employees, bring suits.

Further, state influence alone can convert private charter schools into state actors. In Nampa Classical Academy, the Ninth Circuit found *1275 an Idaho charter school did not have standing to sue a fellow state actor because the charter school itself was a "creature[] of Idaho state law that [is] funded by the state, subject to the supervision and control of the state, and exist[s] at the state's mercy."  Idaho legislators passed numerous provisions to regulate charter schools.  Taken as a whole, these provisions "demonstrate[d] that Idaho charter schools [were] governmental entities."  Based on the Ninth Circuit's reasoning, whether a charter school acts under color of state law will vary by state and situation. In states, like Idaho, that influence policy for educational institutions, charter schools may be de facto state actors. In states like Arizona, where charter schools have more discretion, they may only function under color of state law in specific situations. Still, even where charter schools are not de facto state actors, state influence and intervention can bring a charter school within the purview of  1983. Charter schools can and should be considered state actors for purposes of protecting minority students. This classification would greatly aid students by securing their rights via Fourteenth Amendment equal protection.

B. Finishing Touches: Brown v. Board of Education  and Palmore v. Sidoti as Keys to Resuscitating Fourteenth Amendment Equal Protection

  The Supreme Court's Fourteenth Amendment equal protection jurisprudence is often characterized in terms of anticlassification and antisubordination principles. "[T]he anticlassification principle tolerates practices that are facially neutral but have a disparate impact on minorities; but it is intolerant of any use of racial classification . . . ."  In contrast, proponents of the antisubordination principle are less concerned with the facial classification, and more concerned with protecting members of traditionally disadvantaged groups from the "harms of unjust social stratification."  Further, because the antisubordination principle seeks to curb practices that *1276 "disproportionally harm members of marginalized groups, it can tell the difference between benign and invidious discrimination."

Unfortunately, the Supreme Court narrowed its analytical focus over time, thus losing the benefit of a dual anticlassification and antisubordination analysis. In the 1960s, the Supreme Court began shifting away from antisubordination analysis and toward a "general presumption that racial classifications are unconstitutional under the Fourteenth Amendment."  Though possible negative impacts on racial minorities were considered, racial classification itself became taboo. By the 1970s, the Court had increasingly conflated Brown v. Board of Education's "holding with the presumption against racial classifications."  Even governmental use of racial classifications to benefit minorities (such as affirmative action) received heightened scrutiny from the Court based on the well-intentioned but ill-founded view that all racial classifications are more likely evil than not.  More recently, some Supreme Court Justices have implicitly used an anti-balkanization principle in deciding these cases. Under this principle, the Justices attempt to prevent majority backlash against programs that benefit minorities by requiring strong public interest justifications for these policies.

Though a presumption against racial classification was well-intentioned and useful in a time when laws clearly reflected racial biases, it is considerably less helpful in combatting facially neutral laws that target minorities, or rules that implicitly value White traits while disparaging Black ones. The Supreme Court's ruling in Palmore v. Sidoti reflects an understanding of these dangers.  Palmore is a child custody case.  The child's mother (a White woman) had custody, but when she re-married a Black man, the child's father (a White man) sued to gain custody.  The state court sided with the child's father.  This court's decision was not based upon the stepfather's race in the strictest sense, but because of the "damaging impact on the child from remaining in a racially mixed household."

*1277 The Supreme Court reversed, keying in on the fact that commonly held racial biases, if not race itself, motivated the Florida state court's decision.  In the words of Chief Justice Warren Burger,

It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated . . . . The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations . . . . We have little difficulty concluding that they are not.

Whatever negative traits the state court (and society at large) attributed to the child's Black stepfather were inappropriate considerations to determine custody, especially since the lower court took no issue with his qualifications or those of the child's mother.

Courts cannot make decisions based on the dictates of American society's racial bias, whether that bias manifests against a racial group or traits associated with that group. State-funded institutions, like public primary and secondary schools, are not exempt from this prohibition. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." 

Racially conscious public school hairstyle prohibitions are an excellent example of rules that primarily target ethnic minorities and ethnic traits. Unfortunately, the current judicial trend toward eradicating suspect classifications  with a single-minded focus makes it difficult to identify and eliminate rules evocative of the state court's Palmore decision. To adequately assess the hairstyle prohibitions in question, we must return to the Supreme Court's understanding in *1278 Palmore, and to the quintessential case where both anticlassification and antisubordination principles were used to determine whether a public primary school policy was unconstitutional under Fourteenth Amendment equal protection: Brown v. Board of Education.

In Brown, the Supreme Court utilized aspects of both principles to outlaw racial segregation in the United States.  Oliver Brown, the plaintiff who lent his name to the case, challenged the so-called Separate but Equal Doctrine in Kansas that prohibited his Black child from attending a White school.  Oliver Brown and his fellow plaintiffs contended that though White and Black schools were equal on paper, in practice White schools were of higher quality.  Further, "[t]he plaintiffs contend[ed] that segregated public schools [were] not  equal' and [could] not be made  equal."'  Because schools were equal on their face but discriminatory in practice, the plaintiffs were deprived of equal protection of the laws. The Court ultimately agreed with the plaintiffs, ending legalized racial segregation in the United States.  The Court's reasoning is an excellent study in anticlassification and antisubordination principles working in tandem.

In analyzing the Separate but Equal Doctrine and its application, the Court first looked to whether the law in question engendered inequality on its face and found that it did not: "[T]he Negro and white schools involved [were] equalized, or [were] being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other  tangible' factors."  Strictly speaking, the law did not discriminate between Blacks and Whites. Taking the policies at face value, the racial classifications contained in the Separate but Equal Doctrine were not discriminatory. However, in analyzing the law's effects, the Court acknowledged two very important principles: (1) that racial classification in and of itself is sometimes harmful, and (2) that laws may appear benign while masking horrible injustice and *1279 targeting traditionally marginalized groups.  The Court's "decision, therefore, [could] not turn on merely a comparison of these tangible factors."  Rather, the Supreme Court looked to the effect of segregation on public education.  Utilizing both anticlassification and antisubordination theories, the Court determined the Separate but Equal Doctrine violated the Fourteenth Amendment Equal Protection Clause.

Applying the Brown Court's two-step anticlassification and antisubordination analysis to primary public school hairstyle prohibitions, we find that these facially neutral hairstyle policies mask subordination of Black children's bodies to a White cultural ideal. Here, as in Brown, the rule itself is not inherently discriminatory.  In schools like Vanessa VanDyke's, all children would be prohibited from wearing afros, dreadlocks, and small twisted braids, regardless of race.  However, as in Brown, "[o]ur decision. . . cannot turn on merely a comparison of these tangible factors . . . . We must look instead to the effect of [the policy] itself on public education."  Even looking to the effect of these hairstyle prohibitions, a modern day proponent of a "color blind"  legal system might miss the significance of a prohibition on dreadlocks. These critics, like the courts in Rogers and Pitts, claim hairstyle is fluid and that hairstyle prohibitions cannot affect races differently. However, a sociological examination of how blind persons, who are racially "color blind" in the most literal sense, identify and internalize race provides a strong rebuttal to this contention.

*1280 One blind man notes that hair takes on special significance as a proxy for race in the dating context. "[W]hen someone doesn't know our race," he says, "they'll find some way to reach out and touch our hair. People want to know, and that's the one [racial clue] they can always get . . . ."  In the United States, visual perceptibility is inherent to the concept of race. Even the Civil Rights Act of 1964 prohibits discrimination based on race without feeling compelled to define race.  Despite the presumptive visual nature of race, racial biases based on non-visual cues are alive and well among the blind community: "You can see [[someone] kind of pursuing somebody [that they find attractive]. And they'll go for the hair and then they'll change their mind. They're always still friendly . . . . But you're Black."  Here, hair texture and hairstyle function as a fundamental proxy for race. "[H]air texture [and hairstyle are] sought out as a proxy for the visual cues associated with race as a way to determine the terms, limits, and boundaries of social interactions."  Race exists even in a truly "color blind" community through its integral association with hair texture and hairstyle.

Though hairstyle can change, certain hair textures are associated with certain hairstyles. These hairstyles come to be imbued with as much cultural significance as the hair itself. Afros, afro-puffs, dreadlocks, small braided twists, and cornrows are examples of such hairstyles. Racially conscious public school hairstyle prohibitions discriminate against Black students in the same way the "Queue ordinance" discriminated against Chinese men in Ho Ah Kow v. Nunan.  Such school policies elevate White hairstyles while denoting the inferiority of Black hairstyles. The negative psychological impact on Black children is greater when these policies have the sanction of the law.

Racially-motivated school dress code policies may not discriminate on their face (and may well pass muster under suspect classification analysis), but review of these policies based on antisubordination concerns reveals that they negatively impact Black children physically and psychologically. Physically, these policies force Black children to adopt White hairstyles that are often unsuitable for their hair, and *1281 psychologically, these polices tell those children their natural hair is unacceptable and wrong. The presence of racial bias in favor of White hair in American society is insufficient to justify these policies. A culturally White majority may deem dreadlocks and cornrows "unprofessional" or "distracting," but such biases cannot be given effect by state funded educational institutions. As the Supreme Court concluded in Palmore, "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."  Courts should consider antisubordination concerns as dictated in Brown, Palmore, and Ho Ah Kow in evaluating the legitimacy of such policies. Close scrutiny reveals that racially conscious school hairstyle prohibitions are inherently discriminatory, and negatively impact Black students physically, psychologically, and socially.