Hair, Discipline, and Race: A Call to Cut Discrimination Out of School Dress Codes

Schools should be a welcoming, safe place for all students – where students can be themselves, learn, and thrive. However, harsh discipline policies and punitive dress codes are disproportionately pushing students of color out of public schools. Biased school dress codes too often target students of color by unreasonably prohibiting hairstyles that are intertwined with racial, ethnic, and cultural identities. Labeled a distraction and a disciplinary infraction, the assault on children’s hair continues to exacerbate already immense racial disparities in school discipline. In Arizona, schools disproportionately refer Native and Black students to law enforcement at rates dramatically higher than their white peers.[1] Black girls alone are three times more likely to be arrested at their schools than their white female classmates.[2] Compounding these disparities, students of color in Arizona and other states are suspended or even told they will be unenrolled from school simply because of their hair.

To illustrate this injustice, imagine a Black student is told he must cut his hair because his natural hair is a distraction to other students. Imagine his mother braiding his hair and sending him back to school in hopes this will make everything OK. Instead, the student is told that the dress code policy prohibits boys from having braids. Imagine a mother having to shave her son’s head so that he can receive a public education. This is a true story – just one of many intakes the ACLU of Arizona has received demonstrating race and gender bias in school dress codes.  Unfortunately, that student eventually left his school. Sadly, stories like this one are not at all uncommon.[3] One would think: This is illegal! Yet, the legal landscape for these cases is not what many expect, and the courts have not stepped in to consistently protect these students. Instead, too often, police have intruded and escalated the situation. We can no longer fight this battle in the courts alone—we must turn to legislators, policymakers, and community advocates to make an immediate change.[4]

The justice system – particularly police such as school resource officers (SROs) – have further criminalized students in this context. In Arizona, a Black student was arrested in his high school after a teacher threatened to call the police on him for wearing a bandanna as a headband. In addition to being suspended, the student was swiftly brought to jail for allegedly violating the school dress code for refusing to remove it.[5] Based on the police report, the student was arrested on two charges: disorderly conduct and interfering with an educational institution. Notably, bandannas were not mentioned in the school’s dress code, and white students reportedly wore bandannas without incident. Frequently dress codes are fashioned explicitly on white norms of how children should present themselves by outright banning customarily Black hair styles (i.e., no dreads and cornrows, no braids for boys),[6] even to the extent of banning natural hair textures unknown to white heads.[7] Similarly, other dress codes appear race-neutral but are overly vague and enforced discriminatorily against students of color (i.e., no “distracting” hairstyles and other countless seemingly neutral rules that are used against common Black hairstyles but not against common white hairstyles). Both types of discriminatory dress codes are rooted in the notion that white hair and culture are the standard – the rule to follow – and further the policing of Black bodies.[8] The result is the disproportionate discipline of students of color, pushing these students out of the classroom.[9]

Courts have historically failed to protect students of color from biased dress and grooming policies, only stepping in to stop the enforcement of school dress codes if they discriminate against a particular viewpoint. In 1969, the Supreme Court confirmed in the landmark decision, Tinker v. Des Moines, that students have a right to free speech in public schools after five students were suspended for wearing black armbands to protest the Vietnam war.[10] The students were indefinitely suspended until they agreed to remove the armbands. The Court found that the First Amendment applied to public schools and student speech could not be censored unless it disrupted the educational process. Under the First Amendment, school dress and grooming codes are permissible if they are content-neutral and evenly applied to all students. However, First Amendment protections have not been extended to students’ hair.[11] This has led to circumstances where students can face discipline if their racial, cultural, or gender expression violates school dress codes and grooming standards.[12] Decades later, we see indefinite suspensions for everything from boys wearing earrings to Black students wearing natural and culturally representative hairstyles. While Tinker v. Des Moines continues to protect students’ rights today to wear political clothing, First Amendment jurisprudence has done little to protect students against racially biased and sexist dress codes.

Courts should interpret Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972 to protect students from dress and grooming policies that are based on racial discrimination and sex[13] stereotypes. In 2014, the United States Department of Education (DOE) and Department of Justice (DOJ) together authored a letter that stated schools violate Title VI when they adopt a “facially neutral policy with the intent to target students of a particular race for invidious reasons.” The letter highlighted that a school dress code constitutes unlawful intentional discrimination if it bans a dress style that “school officials believe[] that students of a particular race [a]re likely to wear” regardless if the policy is facially neutral.[14] According to the DOE and DOJ, discrimination within the meaning of Title VI includes discrimination based on characteristics associated with a protected class.[15]

Unfortunately, the 2014 guidance provided by DOE and DOJ has not been implemented in many cases. Schools frequently ban natural Black hairstyles or styles worn disproportionately by Black students and other students of color. Dreadlocks, braids, hair extensions, afros, or similar hairstyles that are deeply connected with Black racial identity often raise concerns from culturally insensitive school officials.[16] Likewise, long hair, braids, and other hairstyles that are intimately associated with the racial and ethnic identity of Native, Latinx, and other racial minorities frequently run afoul of school dress codes and grooming standards. Some policies use terms like “extreme,” “faddish,” or “distracting” hairstyles disproportionately against students of color.[17] When school dress codes target the hair of students of color, it should implicate the anti-discrimination provisions of Title VI. Nevertheless, even with the backing of federal agencies, courts have failed to apply Title VI in a manner that protects students of color from discrimination stemming from dress codes.

While Title VI should have protected the boy from Arizona with his natural hair, Title IX should have also protected him with his later braided hairstyle. Many dress codes that are racially biased are also based on sex and gender stereotypes. Title IX states schools cannot treat boys and girls differently by forcing students to conform to stereotypes. Yet, again, courts have allowed dress codes, blatantly built on racial and gendered stereotypes, that declare boys cannot have long hair or boys cannot have braids to survive under Title IX. In doing so, courts have continued to reinforce deeply rooted gender and racial norms under the guise of neutrality.

There is still hope. A recent case out of North Carolina found that requiring girls in a public school to wear dresses violated the Equal Protection Clause of the Fourteenth Amendment.[18] Such protection should be extended to students who are disciplined under dress and grooming codes that prohibit hairstyles traditionally worn by a particular race or sex. In addition, some legislators and policymakers are stepping up to trim discrimination from school dress codes. In 2019, New York and California, became the first states to outlaw racial discrimination based on hairstyle.[19] Just recently, New Jersey and Virginia also passed similar legislation.[20] New York City independently barred such discrimination as well. Several states, including Tennessee, Wisconsin, Colorado, Washington, Minnesota, Illinois, Kentucky, and Michigan, have all introduced bills to ban discrimination based on hair this year.[21]

Most importantly, students and parents are increasingly making their voices heard during school board meetings and are advocating for nondiscriminatory dress codes in their local school districts. Together, we can push for inclusive, nondiscriminatory dress codes at every school in every state so that each child may be themselves from head to toe – without fear of being disciplined for who they are.