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BOY SUSPENDED FOR LONG HAIR CLAIMS DISCRIMINATION

QUESTION:  My 12-year-old son has been growing his hair long for several years. He has been playing guitar since kindergarten, and thinks his long blond curls make him look like a rock star. His elementary teachers never said anything about it. He started at a middle school this year, and we received a note last week that he needs to cut his hair or stay home. The school says it has a dress code that includes requiring boys to keep their hair no longer than the ears in front and side, and “neatly groomed in back, no longer than the back of the neck.” My son is devastated. Girls aren’t required to cut their hair, and can wear it short or long — isn’t this a form of discrimination?

ANSWER:     The general consensus of courts across the country is that a “grooming code … consistent with community norms” that establishes different standards for men and women — or boys and girls — is not a violation of anti-discrimination laws.

There is a caveat to that general rule: The grooming code must be evenly enforced and impose “comparable burdens on both males and females alike.”

Definitions of what constitutes a “comparable burden” has been fairly broad. In 2006, for instance, the federal Ninth Circuit upheld as nondiscriminatory a grooming code that required women to wear their hair down and “teased, curled, or styled” and to wear full makeup — face powder, blush, mascara and lip color. Because both men and women were subject to grooming standards (men were required to keep their hair short, and were forbidden from having ponytails, wearing makeup, or nail polish), the court reasoned, and because no evidence had been presented that the standards burdened one sex more than the other, laws forbidding discrimination were not violated. (The Court refused to take “judicial notice” of the fact that makeup can be expensive and can take a while to apply.)

But where only one sex is subject to grooming standards, the result is different. The Seventh Circuit Court held in 2014 that a short-hair requirement that only applied to members of the boys’ basketball and baseball teams might constitute discrimination where there was no evidence presented that girls, whether or not they played sports, were subject to any grooming code at all. The Court indicated that it would have ruled differently if evidence of a grooming code for girls had been presented. The Court noted that there is no constitutional right to wear your hair long or short, as a matter of personal style preference. The Constitution, the Court noted, protects fundamental rights, those that are “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Hair styles did not make the Constitutional cut.

That said, courts have sometimes found discrimination when the hair style complained of is required by a person’s religion, such as dreadlocks for a Rastafarian, side curls for Hasidic Jews, or long hair in a turban for a Sikh. In such cases, a fundamental right — freedom of religion — may be involved and the worker, or student, accused of violating the grooming code should be allowed an exception.

Grooming or dress codes are common at most schools. According to one report, almost two thirds of U.S. schools enforced a strict dress code. Challenges to these codes, whether on grounds of sex discrimination, religious discrimination or, when words, pictures, or symbols are involved, the First Amendment right to freedom of expression are becoming increasingly common. Students are challenging dress codes forbidding ripped jeans, low-cut tops, T-shirts with slogans ,or even challenging the idea of a dress code as inherently sexist, racist and classist.

Although legal challenges to school dress and grooming codes are proliferating, there is no sign yet that courts are willing to rule in favor of most such challenges. While any grooming code that establishes different standards for boys and girls necessarily discriminates, it is not, without more, unlawful discrimination.

Before contacting an attorney to sue the district, you may want to talk to the principal and see if an exception can be worked out.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
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[email protected]
www.gwinnlegal.com