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. Black girls alone are three times more likely to be arrested at their schools than their white female classmates. 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. 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.
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. 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), even to the extent of banning natural hair textures unknown to white heads. 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. The result is the disproportionate discipline of students of color, pushing these students out of the classroom.
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. 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. This has led to circumstances where students can face discipline if their racial, cultural, or gender expression violates school dress codes and grooming standards. 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 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. According to the DOE and DOJ, discrimination within the meaning of Title VI includes discrimination based on characteristics associated with a protected class.
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. 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. 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. 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. Just recently, New Jersey and Virginia also passed similar legislation. 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.
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.
 Find information on all 50 states in this report: American Civil Liberties Union, Cops and No Counselors: How the Lack of School Mental Health Staff is Harming Students, March 4, 2019, available at https://www.aclu.org/report/cops-and-no-counselors.
 Read a similar story reported by Kayla Lattimore at NPR: When Black Hair Violates the Dress Code, July 17, 2017, available at https://www.npr.org/sections/ed/2017/07/17/534448313/when-black-hair-violates-the-dress-code.
 Campaigns like Demand to Learn and groups like Black Mothers Forum in Arizona along with other coalitions and community organizations across the country are working to change education policies to address inequity and racial disparities in schools. Also see:
 Breanna Edwards, “Arizona High School Student Refused to Take Off Bandanna, So He And 3 Other Students Were Arrested Because Apparently, That Makes Sense,” The Root, August 17, 2018, available at https://www.theroot.com/arizona-high-school-student-refused-to-take-off-bandann-1828414537.
 In Florida, six-year-old Clinton Jr. was barred from attending his school because it has a policy that expressly bans “dreads” for boys. See, ACLU, “Florida Department of Education Complaint on Behalf of Clinton Stanley Jr.,” updated December 6, 2018, available at https://www.aclu.org/cases/florida-department-education-complaint-behalf-clinton-stanley-jr.
 Deborah Roberts, Ignacio Torres, and Jasmine Brown, “As Natural Hair Goes Mainstream, One High School’s Natural Hair Ban Sparks Firestorm,” September 15, 2016, ABC News, available at https://abcnews.go.com/US/natural-hair-mainstream-high-schools-policy-sparks-firestorm/story?id=42100267.
 In a 2014 New Times’ opinion piece, Ayana Byrd and Lori Tharps outlined how similar dress codes in the military essentially imposed white hair styles on Black women and girls in uniform and how these dress codes are tied to a history of favoring and forcing white hair styles on to Black people. Available at https://www.nytimes.com/2014/05/01/opinion/when-black-hair-is-against-the-rules.html.
 In Louisiana, high student cheerleader Asia was recently pushed out of her cheerleading team because her hair was “too thick” for the required “half up, half down” style that failed to consider all hair textures. See, Leah Asmelash, “Black students say they are being penalized for their hair, and experts say every student is worse off because of it,” CNN, March 8, 2020, available at https://www.cnn.com/2020/03/08/us/black-hair-discrimination-schools-trnd/index.html.
 Tinker v. Des Moines Independent Community School, 393 U.S. 503 (1969).
 Just a couple years later, the Ninth Circuit upheld a dress code policy in King v. Saddleback Junior College District that prohibited boys from having long hair. The following year, the Arizona Supreme Court in Pendley v. Mingus Union High School upheld a similar dress code policy. Both cases found that male students did not have a constitutional right to maintain their long hair. See King v. Saddleback Junior College Dist., 425 F.2d 426 (9th Cir. 1970); Pendley v. Mingus Union High School Dist., 109 Ariz. 18 (Ariz. 1972).
 Andre M. Perry, “School dress and grooming codes are the new ‘whites only’ signs,” Brookings’ Brown Center Chalkboard, February 14, 2020, available at https://www.brookings.edu/blog/brown-center-chalkboard/2020/02/14/school-dress-and-grooming-codes-are-the-new-whites-only-signs/.
 As we continue to understand how complex and nonbinary biological sex actually is, the terms sex and gender are still not always interchangeable. Title IX (like other laws) uses the word sex and not gender. However, because gender and sex are often times so interconnected, protection against gender discrimination fall under Title IX’s sex discrimination. For contrast, pregnancy discrimination falls under sex discrimination but is not gender discrimination. This is an evolving area of law where protection against discrimination for sexual orientation, gender, gender identity, and pregnancy have been and continue to be hard fought to be recognized under sex discrimination. See David Crary, “LGBT Activists See Hard Work Ahead Despite Supreme Court Win,” AP News, June 17, 2020, https://apnews.com/8585170d8f298582cf62ea7f65f7f0c9. For more information, see the ACLU’s Title IX – Gender Equity in Education, available at https://www.aclu.org/title-ix-gender-equity-education, and the ACLU’s Know Your Rights Sex Discrimination, available at https://www.aclu.org/know-your-rights/sex-discrimination/.
 U.S. Department of Justice and U.S. Department of Education, Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, January 8, 2014, available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.
 “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity...”
 For more information, see Clinton Stanley v. A Book’s Christian Academy Complaint, filed by the NAACP and ACLU on November 29, 2018, available at https://www.aclu.org/legal-document/clinton-stanley-v-books-christian-academy-complaint.
 See Peltier v. Charter Day Sch., Inc., 384 F. Supp. 3d 579, 597 (E.D.N.C. 2019) “Under the facts of this specific case, the court finds that the skirts requirement of the uniform policy of the School promulgated by CDS, Inc., as written and enforced, violates the Equal Protection Clause.”
 Liam Stack, “California Is First State to Ban Discrimination Based on Natural Hair,” The New York Times, June 28, 2019, updated July 3, 2019, available at https://www.nytimes.com/2019/06/28/us/natural-hair-discrimination-ban.html; Audrey Noble, “New York State Follows California in Banning Hair Discrimination,” Vogue, July 15, 2019, available at https://www.vogue.com/article/new-york-bans-discrimination-against-natural-hair.
 Mariel Padilla, “New Jersey is Third State to Ban Discrimination Based on Hair,” The New York Times, December 20, 2019, available at https://www.nytimes.com/2019/12/20/us/nj-hair-discrimination.html; Kenya Evelyn, “Virginia becomes first southern US state to ban hair discrimination,” The Guardian, March 6, 2020, available at https://www.theguardian.com/us-news/2020/mar/06/virginia-hair-discrimination-ban.
 Jena McGregor, “More States Are Trying to Protect Black Employees Who Want to Wear Natural Hairstyles At Work,” The Washington Post, September 19, 2019, available at https://www.washingtonpost.com/business/2019/09/19/more-states-are-trying-protect-black-employees-who-want-wear-natural-hairstyles-work/. See also, Harmeet Kaur, “In just 1 week, 3 states considered bills to ban discrimination based on hair texture or style,” CNN, February 16, 2020, available at https://www.cnn.com/2020/02/16/us/hair-discrimination-bills-trnd/index.html.
Amanda Parris is the Policy Counsel for the ACLU of Arizona. Amanda graduated with a J.D. and an M.T.S. from Emory University, where she focused on immigrants’ rights, religious discrimination, voting rights, and indigent criminal defense. Before joining the ACLU of Arizona’s litigation team and subsequently moving into policy work, she interned with the ACLU’s Program on Freedom of Religion and Belief in Washington, D.C., working on lawsuits involving religious discrimination. During law school, Amanda worked with the Georgia Public Defender Standards Council Appellate Division and the Georgia Capital Defender's Office. Amanda also helped to manage and draft a report on the conditions of immigration detention centers in Georgia while working pro bono with Project South. While obtaining her master’s degree, Amanda completed her thesis on the prejudicial and unwarranted criminalization of Muslims in the U.S. criminal justice system. Additionally, as a recipient of the Candler’s Criminal Justice Fellowship, Amanda was engaged in policy work addressing the criminalization of poverty with the Southern Center for Human Rights. As Policy Counsel, Amanda is primarily responsible for supporting the ACLU of Arizona’s policy and advocacy efforts related to education equity, criminal justice reform, as well as First Amendment issues and other critical civil liberties issues.