B. Hair Length Discrimination as Cultural Discrimination: The Case of Ho Ah Kow v. Nunan
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)
Ho Ah Kow, a Chinese man living in California in the 1870s, did not need a barber. In accordance with a Chinese custom, Kow shaved the hair from the front of his head and wore the remainder in a braided queue. Shaving off the queue was considered a mark of disgrace and misfortune in his cultural tradition. In 1878, Kow was convicted under an unrelated lodging statute and imprisoned for five days in the county jail. During his imprisonment the local sheriff, the defendant, cut off Kow's queue with full knowledge of the cultureal *1268 implications of this act. The sheriff cut Kow's queue in accordance with a local ordinance that required "every male person imprisoned in the county jail . . . [to] have the hair of his head cut or clipped to a uniform length of one inch from the scalp . . . ."' Unimpressed by the ordinance, Kow sued the sheriff for "imposing a degrading and cruel punishment upon a class of persons who are entitled . . . to the equal protection of the laws."
The court agreed with Kow, dismissing the defendant's health and disciplinary justifications for the ordinance as "mere pretense." The ordinance was colloquially known as the "Queue Ordinance" and was only enforced against Chinese men. Though the ordinance was expressed in general terms, it had the effect of harming Chinese men. According to the court, "[m] any illustrations might be given where ordinances, general in their terms, would operate only upon a special class . . . with exceptional severity, and thus incur the odium and be subject to . . . legal objection . . . ." Facially neutral policies enacted to harm a class of racial minorities are not legal based on equal protection analysis. Surely a general policy banning Black hairstyles, that school administrators must know primarily harms their Black pupils, would incur the rancor of this court as the Queue Ordinance did long ago, and cannot be legal.