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Anna-Lisa F. Macon
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 vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Justice Potter Stewart
Something peculiar is happening in American schools. This something is an addendum to primary and secondary school dress codes that seems simultaneously outrageous and justifiable. American schools have historically dictated or regulated student dress. They have also placed restrictions on hair length and style, particularly for boys. However, these polices have recently found a new target: Black children. Primary schools in Oklahoma, Ohio, and Florida *1256 have banned natural Black hairstyles or have threatened Black female students who wear their hair naturally with expulsion. An Ohio school attempted to ban "afro-puffs and small twisted braids." A seven-year-old in Oklahoma was forced to switch schools after being suspended for wearing dreadlocks. In Milwaukee, a teacher punished a Black first grader by cutting off one of her braids in front of the class and throwing it in the trash.
Excepting the final example, which is (hopefully) a clear-cut case of assault, proper resolution of these school policies is legally ambiguous. Though none of these cases resulted in litigation (likely because the schools backed down after nationwide publicity and public backlash), racially conscious school dress code policies that prohibit Black hairstyles are becoming increasingly prevalent.
This Comment addresses two questions that logically flow from consideration of this trend. First, can state-funded primary and secondary schools legally ban natural Black hair and Black ethnic hairstyles? Second, regardless of the answer to the first question, should these schools be allowed to ban them? Because there is no definitive *1257 legal answer as to whether state-funded primary and secondary schools can prohibit Black ethnic hairstyles, this Comment will utilize sociological inquiry and legal analysis to make its own determination. First, examination of social and psychological harms caused by these regulations demonstrates the importance of sheltering Black children from forced acquiescence to White social norms. Next, reviewing case law regarding public schools' regulation of boys' hair length, hair length discrimination as cultural discrimination, and ethnic hairstyle restrictions in an employment context provides a historical backdrop that parallels this Comment's inquiry and reveals why judicial intervention in this area is needed. Finally, dissection of the Supreme Court's Fourteenth Amendment equal protection jurisprudence offers a solution to this unsavory violation of student rights.
The facts surrounding Vanessa VanDyke's struggle are illustrative in framing this inquiry. The Huffington Post, apparently unable to put its finger on exactly what was wrong with Vanessa VanDyke's imminent expulsion, classified her story under its "Weird News" section. Reportedly, the twelve-year-old VanDyke was being bullied at school because she wore her hair in a natural afro. When VanDyke finally informed school administrators about the bullying, the school responded not by chastising the offenders, but by terming her hair a "distraction" and giving VanDyke and her parents an ultimatum. The twelve year old could either "cut and shape her natural hair or be expelled." VanDyke's parents were livid and approached local news media with their story.
In the wake of a national outcry spurred by media coverage, school administrators amended their position. School officials stated, "we're not asking [VanDyke] to put products in her hair or cut *1258 her hair. We're asking her to style her hair within the guidelines according to the school handbook."
The student handbook states "[h]air must be a natural color and must not be a distraction"; prohibited hairstyles "include but [are] not limited to: mohawks, shaved designs, and rat tails, etc." The handbook seems reasonable enough, but school administrators faced a major problem in its application against Vanessa VanDyke: she was not purposefully styling her hair in a prohibited hairstyle. She was letting it grow naturally from her head. When VanDyke's peers bullied her because of her natural hair, the school labeled her a "distraction" and suspended her. Unfortunately, there are currently no clear legal standards that prohibit schools from engaging in this type of behavior.
In order to protect Black children's rights, Americans must recognize that physical and cultural traits, such as hair texture and hairstyle, are increasingly used as a proxy for race. School dress code policies that prohibit ethnically Black hairstyles have two fundamental issues. The first is a devaluation of racially-constructed "Blackness." Prohibition of Black traits has become a politically palatable way of devaluing the Black body. In the same way boys' hair length regulations implicitly devalue a feminized attribute (having long hair), the prohibition of cornrows, afros, dreadlocks, and other ethnically Black hairstyles implicitly devalues Black persons and Black culture. Secondly, these dress code policies target and disproportionately affect Black children while appearing to be facially neutral rules. On paper, banning cornrows might affect all students equally, but if cornrows are almost exclusively worn by Black children then the ban, in fact, primarily affects this racial minority group.
To combat school dress codes that are racist implicitly and in effect, courts must reinvigorate Fourteenth Amendment equal protection. To protect vulnerable populations, Americans must recognize trait discrimination for what it is: a mere proxy for race discrimination.
*1259 I. Detangling the Politics of Racially Conscious Dress Codes--a Sociological Analysis of Racial Bias, Trait Discrimination, and Cultural Assimilation
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)
Nowhere is the cultural construction of race in America more apparent than in the case of Alexina Morrison, "kidnapped" slave and self-professed White woman. In 1857, Alexina ran away from her master and convinced the local parish jailer (William Dennison, a White man) that she was a White woman who had been kidnapped into slavery. Dennison took Alexina home and introduced her to White society, taking her to "balls and other amusements with his family." With the help of Dennison and his community, she sued her master for her freedom. Though Alexina could certainly pass for White with her "blue eyes and flaxen hair," this was not the main argument her new friends and neighbors made on her behalf at trial.
Alexina's witnesses assured the jury that she had fit in perfectly at their balls, that she had slept in their beds with their daughters, and that they surely would have known if she had a drop of African blood. . . . Several doctors testified on her behalf that the shape of her hair follicles and the arches of her feet proved her Whiteness.
Though Alexina's physical appearance was a necessary condition to establish her Whiteness, she also had to prove her conduct was White to win at trial. Skin color, though highly visible, was only one aspect of race. Consideration of multiple traits--physical, social, and cultural-- went into a determination of whether someone was Black or White.
The slave master's defense is just as telling. In addition to providing documentation to prove Alexina was a slave of the Morrison family, he used scientific language to show that race "could not [be] discovered through appearances, [but was] something that required expertise to discern." Alexina's alleged slave master attacked her "White character" *1260 to prove her "negro blood." Indeed, the slave master "call[ed] her sexual virtue into doubt . . . and question[ed] her witnesses about her behavior at public balls." Despite these tactics, Alexina ultimately prevailed. Though she "was undoubtedly a slave, and almost certainly had some African ancestry, she repeatedly won over White jurors . . . [by] perform[ing] the role of a White woman, and convince[ing] others of her moral worthiness."
Over 150 years after Alexina's fight for freedom, the concept of race in America remains relatively unchanged. People still believe race is about more than skin color. Race lies in performance of certain racially-coded actions and attributes. A study on racial stereotypes in the early 1930s found that "Whites were viewed as smart, industrious, and ambitious, whereas Blacks were viewed as ignorant, lazy, and happy-go-lucky." Though such blatant racism against Blacks has largely faded, modern racism remains and is characterized by more subtle and insidious racial biases. Studies from the late 1980s and 1990s suggest that "[n]on-Blacks exhibit subtle racism when it is safe and socially acceptable to do so, or when the racism is easily rationalized." Blacks and non-Blacks alike are indoctrinated with negative stereotypes about Black people and Black culture, simply by virtue of growing up in the United States. Additionally, "Implicit Association Tests (IATs) provide compelling evidence that many Whites [still] hold negative stereotypes that are frequently associated with Blacks."
*1261 Though race in America is a cultural creation rather than a biological reality, "[i]t is a brutal fact of life for millions of citizens, and an inescapable problem for the rest . . . ." This ingrained racial bias leads to the type of school policies that prohibited Vanessa VanDyke from proudly wearing her afro. These policies are examples of trait discrimination that encourage physical and cultural assimilation to the dominant ideal. The policies are, at their core, an effort to eradicate Black physical and cultural traits and replace them with White ones.
Suppose you are an employer preparing to interview a fictional young woman named Shaquanda Jackson. You only have a r‚sum‚, but you try to anticipate what she will be like. What race is she? How does she speak? What type of clothes does she wear? Is she skinny or fat? Morally upright or wild and promiscuous? What did you presume about her spelling and grammatical abilities after simply glancing at her name? Most Americans have answers to those questions, based on experience, prejudice, or other seemingly justifiable reasons. More likely than not, the answers to most or all of those questions have negative connotations. Despite being a name on a page, completely divorced from physical attributes and general conduct, Shaquanda Jackson is racialized. Shaquanda Jackson is Black, and not in a good way. But then, is "being Black" in an employment or educational setting ever a good thing?
A trait is "a quality that makes one person or thing different from another." When Americans see the name Shaquanda Jackson, and *1262 mentally distinguish her from others by designating her as a "Black person," her very name becomes a trait associated with Blackness. Acknowledging this relationship is fundamental in understanding trait discrimination. Americans hear a name like Shaquanda Jackson or see a hairstyle like dreadlocks, and mentally code both name and hairstyle as racially Black. Trait discrimination takes this mental recognition a step further, by actively prohibiting speech, names, clothing, hairstyles, etc. that Americans mentally associate with a specific race. Though Black persons are not born with dreadlocks or pre-destined to be named Shaquanda, these traits become avatars of Blackness. Because race is such a real and tangible thing in American culture, these avatars cannot be separated from their racial significance.
Identification and prohibition of socially disfavored traits is an attempt to culturally assimilate persons who have these unpalatable characteristics. Racial biases cause Americans to associate Black persons with negative attributes; as a result, characteristics associated with Black persons are imbued with these negative attributes. Historically, this type of bias (coupled with the obvious economic and social incentives) resulted in Black enslavement and Black persons' explicit relegation to the lower classes via Jim Crow laws.
But when the historical vehicles for explicitly degrading Black persons were prohibited by law, employers and society as a whole changed tactics. Americans stopped overtly stigmatizing race and started attacking traits associated with race. This social convention keeps Blacks who embody stereotypically Black traits in the socio-political underclass, while allowing Blacks who perform "Whiteness" *1263 (i.e., adopt enough "White" traits to be palatable and unobtrusive to culturally White society) to flourish.
Though performance of Whiteness is an accepted (if greatly resented) part of succeeding in the United States, for Black persons, forced performance (also known as socially mandated cultural assimilation) is of even greater concern. By limiting Black children to hairstyles that change, subdue, or materially alter their natural hair, state-funded primary and secondary schools engage in race discrimination, using Black traits as a proxy for the disfavored racial group. It is deeply and inherently wrong to inculcate Black persons (or any non-White persons) with the understanding that their ethnicity and natural bodies are unpalatable, unprofessional, and unworthy. Using state-sanctioned institutions (i.e., public schools and charter schools) to enforce this sense of physical and cultural inferiority upon children, whose sense of self-worth and identity is still forming, is an even greater injustice. Such injustice warrants protection through adequate enforcement of Fourteenth Amendment guarantees.
II. A Barbershop and a Hair Piece: Lessons Learned from Male Hair Length Regulations and Employee Hairstyle Prohibitions
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)
Before evaluating legal responses to a problem with few common law or statutory analogs, this Comment considers two parallel areas of jurisprudence: male hair length restrictions and race-conscious employee hairstyle prohibitions. Analysis of these cases reveals a need for both legal clarity and increased protection of rights, particularly for vulnerable populations like children and ethnic minorities. I look first to cases evaluating the legitimacy of public school boys' hair length regulations. Examining relevant Supreme Court jurisprudence and varied responses by lower courts provides valuable insight into potential legal responses to our problem.
*1264 A. Hair Length Discrimination as Sex Discrimination: An Overview of Boys' Hair Length Cases
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.
B. Hair Length Discrimination as Cultural Discrimination: The Case of Ho Ah Kow v. Nunan
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.
C. Black Professional: How Courts Have Allowed Systematic Devaluation of Blacks and Black Culture Through Employee Hairstyle Prohibitions
This Comment next looks to racially conscious hairstyle prohibitions in an employment context, via examination of Pitts v. Wild Adventures and Rogers v. American Airlines. Though courts largely fail *1269 to recognize and protect harm caused by employee hairstyle prohibitions, the rich body of legal critique spawned by such decisions will guide this discussion.
In Pitts, the plaintiff, a Black female, worked as a Guest Services Supervisor for the defendant/employer Wild Adventures. The plaintiff's boss, a White female, "disapproved of [plaintiff's] cornrow hairstyle" and told the plaintiff to "get her hair done in a pretty style."' Plaintiff catered to her manager's wishes by styling her hair in "two strand twists," but her manager disapproved of this new hairstyle as well because it "had the look of dreadlocks."
Plaintiff refused to restyle her hair again because the defendant did not have a written hairstyle policy at the time. In response, the defendant issued a memo prohibiting " dreadlocks, cornrows, beads, and shells' that are not covered by a hat/visor."' Plaintiff filed a complaint with the defendant's human resources department, filed an EEOC complaint, and later started litigation because she believed the company's grooming policy was racially discriminatory as it prohibited only "Afrocentric" hairstyles.
In denying plaintiff's argument that the grooming policy disparately impacted Black employees, the court found she could not establish a prima facie case of discrimination (under Title VII of the Civil Rights Act of 1964) by showing that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) similarly situated employees outside of her protected class were treated more favorably; and (4) she was qualified to do the job.
*1270 The court concluded the plaintiff was not discriminated against based on her race, since "[g]rooming policies are typically outside the scope of federal employment discrimination statutes because they do not discriminate on the basis of immutable characteristics." This determination is flawed in that it presumes the necessity of protective hairstyles is not an "immutable characteristic" for certain hair textures, and forces Black women to adopt hairstyles that damage their hair.
This approach is similar to the one used in the Rogers decision, where the court upheld an American Airlines' grooming policy that prohibited certain ethnic hairstyles. Because an all-braided hairstyle was not a "natural" state for hair, the court found American Airlines could prohibit flight attendants from wearing braids. Further, "[t]he court in Rogers referred to all-braided hairstyles as not [being] the product of natural hair growth but of artifice' and then, in the same breath, offered American Airlines' suggestion for [plaintiff] to use a hairpiece as an alternative for her in covering up her naturally grown hair." "Such language exposes the court's incomplete understanding of the full implications of tightly coiled and kinky hair for [B]lack women in the United States." In essence, the Pitts court, like the Rogers court, based its reasoning on the faulty premise that White hair textures are "natural" for all people. The Rogers court explicitly favored White hair textures through its suggestion "that the use of a ponytail of straight, artificial hair was an appropriate alternative to the all-braided hairstyle that it called artifice."' Further, by suggesting the plaintiff in Rogers could easily pull her hair back in a bun, as White women can, the court demonstrated a fundamental misunderstanding of hair diversity that varies from the norm. Most importantly, the Rogers court "rejected what Blacks identify as a natural hairstyle--a hairstyle that allows Black women to wear their hair down and long while retaining the natural structure and texture of their hair." Though there are a wide variety of hair *1271 types and textures within the Black community (and outside of it), the Rogers and Pitts courts did not acknowledge hairstyles or hair textures outside of the "natural" White norm. In addition to the courts' illogical assumption that there is a baseline "natural" hair texture, the Rogers and Wild Adventures decisions raise the question of "why Black women are put to the task of justifying a hairstyle particular to their culture when White women and even Black men are not." Racially conscious hairstyle prohibitions by employers "degrade and de-legitimize Black women by denying them the right to self-expression and determination . . . . [D]eclaring a hairstyle as categorically unprofessional and unacceptable degrades the class of people that view the hairstyle as a symbol of ethnic pride." Court decisions like Rogers and Pitts must be overturned to protect the bodies and identities of Black Americans.
III. Hair We Go: Reinvigorating Fourteenth Amendment Equal Protection to Provide Solutions for State-funded Educational Institutions
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.
Split Ends: Concluding Thoughts on the Legality and Desirability of Public School Hairstyle Prohibitions
This comment had twin aims: to determine whether publicly funded primary and secondary schools are legally able to institute racially conscious hairstyle prohibitions, and to determine whether they should be able to do so. The answer to the latter question is obvious. School dress codes that prohibit afros, afro-puffs, dreadlocks, small twisted braids, and other culturally Black styles imply the Black body is unacceptable, unruly, and unprofessional. These policies result in forced assimilation that is damaging to the psyche of Black children. However well-intentioned, these policies subtly say that White traits are good while Black traits are bad. Because this implication is inherently discriminatory and damaging, and because these facially neutral policies target a historically marginalized and highly visible racial group, public school hairstyle prohibitions are unacceptable and should be banned.
Unfortunately, the law has yet to acknowledge this alarming reality. Despite evidence that the policies are discriminatory, current understandings of race in Fourteenth Amendment equal protection jurisprudence allow such policies to continue. Only by utilizing both antisubordination and anticlassification perspectives in equal protection analysis to expand the law's limited conception of race, can Americans outlaw these policies and protect Black students' rights and persons.
J.D. Candidate 2015, University of Pennsylvania Law School; B.A. 2012, Brandeis University.’