Respect My CROWN: The Continued Fight Against Hair Discrimination (2024)

by Jasmyn Hardin, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

“Stupid, but constitutional,” said the court in George v. Abbott, quoting Justice Scalia in Brown v. Chi. Bd. of Educ., who implied that not every “undesirable, annoying, or even hurtful harm amounts to a violation of law, and much less a constitutional problem.”[1] George was a 2024 case involving 17-year-old student, Darryl George, who attended Barber Hill High School in Mont Belvieu, Texas.[2] George and his family filed a federal civil rights lawsuit against Governor Greg Abbott and Attorney General Ken Paxton in response to George’s ongoing suspension over his natural hairstyle, locs, which were deemed to violate a school policy requiring a student’s hair to be “neat, clean, and well groomed.”[3] Additionally, the policy stated that boys’ hair was prohibited from falling below their shirt collar, eyebrows, or ear lobes.[4] Even though George wore his hair neatly “tied and twisted” on top of his head, he remained in violation of school policy because, “if let down,” his hair would fall below his shirt collar, eyebrows, or earlobes.[5]

The CROWN Act, which is an acronym for “Create a Respectful and Open World for Natural Hair,” was enacted to prevent race-based hair discrimination.[6] The CROWN Act was first introduced in March 2021 and passed by the U.S. House of Representatives in 2022 but remains at a standstill in the Senate.[7] As of September 2024, twenty-seven states, including Texas, have enacted the law, yet many hair discrimination cases remain at issue.[8] The CROWN Act was designed to protect students like George, but instead, he was punished for embodying his cultural and familial heritage.

This article explores the growing number of hair discrimination cases, particularly in higher education, and the limited impact of the CROWN Act in addressing these issues. Part II outlines the background of case law before the CROWN Act’s introduction. Part III discusses how courts often fail to enforce the CROWN Act, which aims to prohibit hair-based discrimination. Finally, Part IV concludes with a call for the CROWN Act to be passed at the federal level, enabling individuals to pursue educational and professional goals without being labeled a distraction simply because of their hairstyle.

II. Background

A. Early U.S. History

The controversy surrounding Black or African-American hair has been an issue “before the term African-American was even coined.”[9] As early as the 17^th century, during the Transatlantic Slave Tade, forced head shaving was viewed as a form of punishment and cruelty that stripped Africans of their “most basic expression of identity.”[10] The practice of forced hair removal demonstrated an African’s subhuman position in Western society, enforcing the notion that “whomever they were before they had been taken no longer existed.”[11]

Under the Tignon Law of 1786, passed in Louisiana, Black women, free or enslaved, were forced to wrap or tie up their hair, effectively eliminating class differentiation among them.[12] After the passage of the Fugitive Slave Clause in 1793, there was an influx of newspaper advertisements describing the hair of enslaved persons, which often used terms depicting Black hair as “unkempt and unpleasant to look at” or implying that it is something to be “ashamed” of or in “need of control.”[13]

Moving into the 19^th century, African-American hair gradually assimilated to more conservative styles, mirroring those seen in white spaces.[14] Men typically wore short hair, often with a “distinct part down the side.”[15] It was increasingly common for women of interracial relationships with White or Indigenous individuals to straighten their hair, which introduced the concept of “good” and “bad” hair within the Black community.[16] The notion of good versus bad hair also reinforced social class distinctions, as good hair offered the perceived advantage of an elevated social status, bringing individuals “one step closer to whiteness.”[17]

In the later part of the 19^th century, the emergence of the Black Panther Party empowered African-Americans to “embrace a new cultural identity free of shame and social assimilation into white spaces.”[18] The afro, favored by activists, was designed to occupy space and challenge perceptions of what had long been considered “unpleasant” to look at.[19] This act of resistance captured national attention in 1971 when a news anchor wore an afro during a live broadcast and was promptly fired as a result.[20] Following coverage by mainstream media, the news anchor was later invited back to the network in a different role.[21]

In 1976, Beverly Jeanne Jenkins brought a claim against her workplace in Jenkins v. Blue Cross Mut. Hosp. Ins., alleging a civil rights violation for discrimination against her natural hair afro.[22] Jenkins alleged she was denied a promotion after being told she “could never represent Blue Cross with [her] afro.”[23] Jenkins was successful in her claim, marking a significant milestone in Title VII cases.[24] However, the court’s narrow holding only extended Title VII protections to include afros, failing to cover other natural hairstyles, such as Bantu knots, cornrows, and locs.[25]

“Dreadlocks” have held spiritual significance in every civilization throughout history and across all races.[26] “Dreadlocks” are more respectfully known as “locs,” as the terms carry vastly different meanings and connotations.[27] “Dreads” imply “negative” and “untamed,” whereas “locs” suggest “positive” or “proper.” [28] The rise of locs in contemporary mainstream culture can largely be attributed to Jamaican Rastafarian culture, most notably through the influence of iconic musician Robert (Bob) Nesta Marley.[29] Within the Rastafari religion, growing locs is deeply significant, symbolizing power, strength, and resilience as in biblical texts.[30] While some view locs merely as a style choice, for Rastafarians and African-Americans more broadly, they embody a lifestyle.[31]

Throughout the 20th century, Black men and women increasingly embraced their hair as a form of “artistic self-expression” and a “loving homage” to generations of African-American heritage.[32] While the Jenkins case was a notable step forward, the court’s decision to limit protection to afros-rather than all natural and protective hairstyles-revealed a critical gap in protection against discriminatory practices, an issue that persists today.[33]

B. EEOC v. Catastrophe Management Solutions

In 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a racial discrimination suit, EEOC v. Catastrophe Mgmt. Sol., on behalf of Chastity Jones.[34] Jones interviewed for a position as a customer service representative and was offered the job, only for the offer to be rescinded because her locs violated the company’s grooming policy.[35] The employer defended this policy, arguing that locs “tend to get messy,” admitting though that Jones’ hair did not fit that description.[36] The federal district court dismissed the claim, holding that racial discrimination requires a showing of bias based on immutable characteristics or traits that cannot be changed, such as skin color.[37] The court considers hairstyles a mutable characteristic because they can be changed despite locs being a “natural outgrowth of the texture of black hair.”[38] The United States Court of Appeals for the Eleventh Circuit upheld the decision on appeal.[39]

C. The CROWN Act

The CROWN Act was designed to prohibit race-based hair discrimination in educational and employment settings, seeking to close the gap that remained from Jenkins.[40] California led the way with the passage of the CROWN Act in 2019, and since then, twenty-seven states have followed suit either through executive order or legislative action.[41] Though passed by the U.S. House in 2022, the CROWN Act remains stalled in the Senate.[42] The legislation was recently reintroduced in the House in May 2024 by a group of Democratic representatives.[43]

Although an increasing number of states have implemented protections against hair discrimination, the passage of the CROWN Act at the federal level remains imperative. Black people “can’t control the texture of [their] hair” any more than they “can control the color of [their] skin.”[44] Courts have routinely and tirelessly failed to acknowledge this reality, deeming it a “matter of relatively low importance.”[45] Meanwhile, Black people, namely Black children in education, continue to experience disparate treatment from facially neutral discriminatory rules, practices, and policies.[46]

D. George v. Abbott

The “presence and enforcement of the haircut rules cause far more disruption…than the hair it seeks to prohibit,” concluded the George court quoting Karr, another case involving the length of a schoolboy’s hair.[47] Nevertheless, the majority in Karr held that there was no fundamental right to wear one’s desired hair length in public schools.[48] The dissent strongly disagreed with the notion that hair length was a non-fundamental right, arguing that hair length regulations “impinge upon the fundamental diversity, freedom, and expressiveness of our society,” which significantly affects public school students.[49] The dissent in Karr, the unfortunate minority, decided this issue correctly.

Due to George violating the school’s hair policy, he spent much of his junior year isolated from his classmates and under in-school suspension.[50] He was forced to sit on a stool in a cubicle for eight hours a day and was only provided a sandwich and water for lunch, though he qualified for a free hot lunch.[51] George ultimately left at the start of his senior year because district officials made it clear that he would continue to face punishment unless he cut his hair.[52] Recently, a U.S. District Judge in Galveston, TX, denied George’s request for a temporary restraining order to halt further punishment while the federal lawsuit was pending, citing filing delays and concluding that the school district was “more likely to prevail.”[53] Although the plaintiffs raised multiple claims, including racial and sex discrimination, only the sex discrimination claim survived dismissal.[54]

The school district’s rationale for its grooming policy is to “teach grooming and hygiene, prevent disruption, and minimize safety standards.”[55] However, as the court importantly notes, the district failed to articulate the rationale for a dress code distinction between male and female students.[56] George is adamant against cutting his hair, as locs have a strong cultural, religious, and spiritual connection going back generations in his family.[57] This incident is precisely what the CROWN Act was intended to prevent.[58]

III. Discussion

Though great strides have been made since the passing of Title VII of the Civil Rights Act of 1964 (“CRA”) and several states’ enactment of the CROWN Act, natural hairstyle protection is still necessary at the federal level. Though “anti-Black hair sentiment” was deeply engrained within U.S. society centuries ago, the current controversy surrounds whether natural hairstyles like locs are considered a racial characteristic protected by law.[59] The lack of federal protection for discrimination against Black natural hair has created uncertainty and inconsistency within the courts.[60] Employers and school districts have learned to mask their grooming policies behind facially neutral language that continues to disproportionately “penalize blacks for grooming their hair in a manner that does not meet normative standards for other races.”[61] This part will discuss how present-day discriminatory grooming policies continue to function as a form of punishment for Black people, leaving them with two options: conform to White normative standards or suffer the consequences.

A. First Amendment Implications

Black hair is deeply intertwined with racial, ethnic, cultural, and spiritual identities and should be protected under the First Amendment, regardless of hairstyle or gender.[62] A common theme of recent controversy surrounds the idea of Black natural hair, and locs specifically, being a “distraction” or “unkempt.”[63] School districts, like the one in George, have failed to explain why a hairstyle is a distraction at all, particularly why it is a distraction for men and not women.[64]

In Cohen v. California, the United States Supreme Court reasoned that a jacket reading “F the Draft,” while provocative to some, was not directed at any particular person.[65] Nor was it likely to provoke a “substantial” amount of people, recognizing that “one man’s vulgarity is another’s lyric.”[66] Similarly, in George, one man’s distraction is another’s way of life. George has been vocal in his opposition to cutting his hair, as locs have a vital cultural, religious, and spiritual significance in his family.[67] The discriminatory nature of Barber Hill High School’s grooming policies penalizes George for his mere presence, presenting him with two options: spiritually disconnect from generations of ancestral history or embrace his culture and complete his final year of high school serving in-school suspension.

In 2018, the United States Air Force (“USAF”) rescinded its discriminatory policies that barred natural or protective hairstyles, recognizing that its description of such hairstyles as “unkempt” perpetuated “derogatory racial stereotypes.”[68] The USAF further acknowledged that these practices were “racially discriminatory” and “bear no relationship to [one’s] occupational qualifications” and their “ability to serve and protect the nation.”[69] If the members of our military are deemed fit to serve and protect against our nation’s greatest threats, then it is incredibly difficult to understand why a hairstyle is preventing a seventeen year-old child from sitting in a classroom to learn and socialize with his peers.

B. Title VII Implications

Courts have been reluctant to expand beyond the limited definition of race established in the 1960s.[70] Historically, race is defined as a set of “immutable” hereditary traits shared by a group of people that cannot be changed, such as skin color, hair texture, and facial features.[71] The definition of race is essential as it determines the application of Title VII, which prohibits discrimination by employers on the basis of an individual’s race, color, religion, sex, or national origin.[72]

The courts’ over-reliance on “mutability” has created a “problematic standard” in determining whether an appearance policy violates Title VII.[73] No court would ever justify the enforcement of a “mandatory light skin policy,” argued the EEOC, in making the point that, to an extent, almost all physical characteristics are “somewhat mutable,” but such a policy would not pass constitutional muster.[74]

The Supreme Court in Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., in its holding striking down affirmative action in college admissions, greatly emphasized that the law protects from “intentionally treating any individual worse even in part because of race.”[75] On one hand, courts have acknowledged that locs are a “natural outgrowth of the texture of black hair.”[76] But on the other hand, they claim that discriminatory hair policies are not in the least discriminating “in part because of race.”[77] In Justice Gorsuch’s concurrence in SFFA, he stated that even though institutions may have good intentions by favoring specific candidates because of race, the conduct is still a constitutional violation nonetheless.[78] Similarly, in George and other cases, school districts may be well-intentioned in attempting to teach societal grooming and hygiene standards, but the result of such discriminatory policies violates fundamental rights “just the same.”[79]

More recently, in September 2024, California passed the amendment AB 1815, which expanded the definition of “race” and “protective hairstyles”.[80] The definition is now “inclusive of traits associated with race, including but not limited to hair texture and protective hairstyles”.[81] The non-exclusive list of “protective hairstyles” includes braids, locs, and twists.[82] More states and Congress should and must follow suit, as hair grooming policies are increasingly masked behind the idea of being facially neutral but continue to target minority students and employees at a disproportionately higher rate.

IV. Conclusion

Black hair has long been a point of controversy in the United States.[83] Forced head shaving was wielded as a form of control and punishment, seeking to dehumanize and strip individuals of their “most basic expression of identity.”[84] The Jenkins court’s narrow holding only extended Title VII protections to include afros, failing to cover other natural hairstyles, such as Bantu knots, cornrows, and locs.[85] California led the way with the passage of the CROWN Act in 2019, seeking to prohibit race-based hair discrimination.[86] California has since followed up with an additional amendment expanding the definition of race and protective hairstyles to include all natural hairstyles.[87] The Supreme Court is open to overturning precedent in cases like SFFA but has found every excuse against refining the definition of race in the anti-discrimination context at the federal level.[88] Meanwhile, members of our military with natural hairstyles are fit to serve, yet a Black child with a natural hairstyle was forced to sit in a cubicle for eight hours a day due to his hairstyle.

[1] George v. Abbott, No. 3:24-cv-12, 2024 U.S. Dist. LEXIS 139041, at *27 (S.D. Tex. Aug. 6, 2024); Brown v. Chi. Bd. of Educ., 824 F.3d 713, 714 (7th Cir. 2016).

[2] A Black Student was Suspended for His Hairstyle. Now, His Family is Suing Texas Officials, CBS News (Sept. 23, 2023, 1:51 PM), https://www.cbsnews.com/news/darryl-george-suspended-for-hairstyle-family-sued-texas-officials/ [https://perma.cc/Y9AD-NQK7] [hereinafter A Black Student].

[3] Barbers Hill High School Dress and Grooming Policy, Barbers Hill Indep. Sch. Dist., https://www.bhisd.net/uploaded/schools/High_School/Publications/HSDressCode.pdf (last visited Oct. 18, 2024) [hereinafter Barbers Hill].

[4] Id.