The case is A.A. v. Needville Indep. School Dist., decided today; the opinion is written by Judge Higginbotham and joined by Judge Wiener, but Judge Jolly dissents. Here is the opening paragraph of the majority opinion:
A Native American boy and his parents challenge a school district’s requirement that he wear his long hair in a bun on top of his head or in a braid tucked into his shirt. We agree with the district court that the requirement offends a sincere religious belief and hold it invalid under Texas law.
For more details on American religious exemption law, see here.
Skyler says:
The problem with public schools is that it gives people the idea that they should be empowered to tell others how to dress and groom their children. And whether or not to give them condoms in first grade. Freedom is antithetical to both ideas.
The best reform we could enact in this nation would be to abolish public schools. I’m not holding my breath.
July 9, 2010, 5:52 pmShelbyC says:
Now how exactly does this work? CA5 is bound by any Texas Supreme Court ruling on the issue, right? But it doesn’t appear that there is any. Can the school appeal to the Texas Supreme Court? To SCOTUS?
July 9, 2010, 5:53 pmShelbyC says:
Yeah, did you notice one of the justifications for the policy is to “assert authority”?
July 9, 2010, 5:54 pmruuffles says:
One of the few areas where I agree with John Stossel is changing the way schools are funded. In one European country (Belgium?), free education is accomplished by attaching to each student X number of dollars and they can use it to attend any (accredited) school they want. Good schools flourish and bad ones close. I’m not impressed by the use of charter schools in some bizarre hybrid scheme to protect the public schools in wealthy areas.
July 9, 2010, 6:04 pmDr. T says:
The school district’s rules say that boys’ “hair shall not cover any part of the ear or touch the top of a standard collar in back.” The policy is designed to “teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority.” Only the latter item is true. If long hair is not a hygiene problem for girls and does not cause discipline problems or safety hazards for girls, then the policy’s sole justification is that it asserts arbitrary authority over boys. One doesn’t need a religious reason for overturning such a ham-fisted policy.
July 9, 2010, 6:06 pmSkyler says:
I’m not impressed by inflating school tuitions by the government funding private school costs.
I’m under no delusion that anything will change in my lifetime though.
July 9, 2010, 6:08 pmA. Criminal says:
He requested proof of the family’s religious beliefs. Arocha and Betenbaugh explained that their beliefs were passed down orally, and thus they could not direct him to written documentation. They did, however, present Rhodes with related legal precedent, a copy of the American Indian Religious Freedom Act, and the results of a 2005 DNA test indicating that Arocha is of Native American descent.
IOW, he pretty much made up his own hair-based religion (read the whole thing), but that’s OK because he’s (at least partly) Amerind and the feds have codified those goofy ideas about DNA-based religious rights.
There is no school district policy that prohibits a female student from wearing two braids instead of one, or that requires her to tuck in her long hair.
There’s the real reason the school’s policy was improper. Why mess around with the religious nonsense?
July 9, 2010, 6:22 pmJay says:
The latter. The fifth circuit is bound by state law, but if there is no binding state court interpretation of a statute, it simply has to do its best (or certify the question, but it chose not to here).
July 9, 2010, 6:26 pmruuffles says:
I said X didn’t I? X might be something like the 75% or 90% of schools.
July 9, 2010, 6:35 pmAntinome says:
Best quote of the opinion:
“What we have in the present case is an elementary school, which, even in its most authoritarian form, is neither a military operation nor an incarceration facility.”
July 9, 2010, 6:39 pmEugene Volokh says:
A. Criminal: The Texas Religious Freedom Restoration Act covers religious believers generally, whether they practice an American Indian religion, some other ethnically based religion (such as Judaism), or any other kind of religion. The American Indian Religious Freedom Act and the DNA test are just what the parents brought in; the court’s decision does not turn on this.
July 9, 2010, 7:10 pmgeokstr says:
Can a religious exception for the burqa be far behind?
July 9, 2010, 7:25 pmSteve says:
And from the burqa it’s one small step to legalized honor killings, and just one more step to First Amendment protection of terrorism in the name of Allah. Think bigger, dude.
July 9, 2010, 8:24 pmOrenWithAnE says:
I’m surprised it passes Tinker in the first instance.
July 9, 2010, 9:11 pmyankee says:
The court doesn’t need to address the constitutional issue if the case can be decided on statutory grounds. I find it hard to see how this gets past the 14th amendment either—what’s the exceedingly persuasive justification for forcing boys to keep their hair short, but not girls?
July 9, 2010, 9:28 pmLaura(southernxyl) says:
Yankee, if you let the boys grow their hair long like girls, they might start thinking they’re girls. They’ll act like sissies, and probably be gay. It’s not manly. You have to teach boys to be manly or they might not be.
Or else they might be hoodlums. Hair over the collar leads to skipping school, smoking dope and strumming guitars like those damn Beetles.
Seriously, hair length rules for boys in 2010?
July 9, 2010, 9:44 pmgeokstr says:
Hey, we’ve already got the honor killings here now and precedent on how to spin them from this administration.
Holder’ll just rename them to “justifiable man-caused domestic decapitations”, declare them a misdemeanor punishable by community service gathering a minimum of 1,000 phony registrations for Project Vote per infraction, and then drop the charges after the conviction is obtained. For their part, the dinosaur feminists will dutifully come up with a “several free female beheadings per Muslim family” rule.
And you gotta start thinking more like a leftist (if you’re not maxed out yet), or visit TPM more often to find out these things.
July 9, 2010, 9:59 pmSam says:
Not a lawyer, but work for a big ol’ civil liberties organization. It’s my understanding that there’s an abundance of case law – mostly from the 1970′s, but still valid – that supports gendered dress codes and differing hair/grooming/jewelry standards based on sex/gender. Am I misinformed?
July 9, 2010, 11:52 pmSam says:
Okay, not from the 1970′s, but doesn’t Jespersen v. Harrah’s support gendered dress codes?
July 10, 2010, 12:02 amDr. T says:
It matters not at all that prior case law supports gender-based grooming standards and dress codes, just as it matters not at all that prior case law supported racial segregation. If a public elementary school’s dress code states that girls must wear skirts and knee-length stockings while boys must wear pants or shorts, would that be considered appropriate today? Should a Scottish boy be sent home for wearing a kilt? Should a girl be send home for wearing pants? Gender-based dress and grooming codes are absurd, particularly in elementary school.
July 10, 2010, 9:50 amSteve says:
I dress my little girl in girl’s clothing and my little boy in boy’s clothing. You guys make me feel so reactionary.
July 10, 2010, 11:00 amOrenWithAnE says:
Sam, first off your link is broken. Here’s the 9CA on Jespersen.
Second, that’s a statutory case against private employer arising out of 42USC200 (aka, Title VII).
July 10, 2010, 11:18 amiowan2 says:
The military asserts authority. Parents with money seek out schools that assert authority. Exactly what harm is done to the poor little darlings by obeying arbitrary rules. For no other reason than teaching the dears their wishes dont matter.
July 10, 2010, 11:24 amOrenWithAnE says:
I don’t think anyone was proposing forbidding traditional gender clothing Steve.
July 10, 2010, 11:25 amOrenWithAnE says:
They may grow up one day to accept the rule of an arbitrary government, the chief evil to which our political system aims to avoid.
July 10, 2010, 11:27 amiowan2 says:
History of man disproves that statement.
July 10, 2010, 11:30 amiowan2 says:
Public schools should be run by the people that pay the bill. Local property tax payers. Courts have put their nose in where it dont belong.!00 years ago no judge would have considered secound guessing rules in a school that are designed to maintain order. If a Parent has a problem take it up with th schoolboard and if that dosnt work start working to elect a new schoolboard. Its the way a representative republic works.
July 10, 2010, 11:36 amUrso says:
For some reason the idea of separate dress codes for genders strikes me as less wrong than differing rules regarding hair lengths. But I can’t really articulate why.
“Its the way a representative republic works.”
July 10, 2010, 12:01 pmTrue, but it’s not the way a Constitutional representative republic works.
mary janes says:
Dress codes should let little Kirk wear a kilt to school, only not with patent leather shoes, imo.
July 10, 2010, 12:08 pmAnderson says:
Texas is a pretty schizophrenic state — one school forbidding Christians to express their beliefs, another forbidding little boys to wear long hair unbraided.
July 10, 2010, 12:15 pmOrenWithAnE says:
In what sense? The spirit of a free nation is built out of the character of its citizens. If we teach our children from young age that authority is to be accepted even in the plain absence of reasoned justification then we are teaching them submission to arbitrary government.
The path to maintaining order lies in liberty, not authority. See, e.g. J. Brandeis in Whitney v. California:
July 10, 2010, 1:23 pmSam says:
Okay, found my notes.
Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) – Fifth Circuit rules that hair length on male public schools student is not of sufficient expressive value to be protected by the First Amendment.
King v. Saddleback Junior College District, 445 F. 2d 932 (9th Cir. 1971) – Ninth Circuit rules that different grooming standards for male and female students do not pose “any substantial constitutional question” under the Equal Protection clause.
Youngblood v. School Board of Hillsborough County – Ultimately settled while on appeal to the Eleventh Circuit, but district court upheld a gendered dress code against First Amendment and Equal Protection claims based on cases, such as the two above, from the 1970′s.
I’m not saying that I think gendered dress codes are constitutional. I’m just not sure a First Amendment or Equal Protection claim would have been a better way to go, given that courts have denied those claims previously.
July 10, 2010, 2:09 pmyankee says:
Maybe a lesson appropriate for the schools of Singapore, but not for a free society.
The only actual reason for this rule is to coerce kids into adhering to the school board’s very silly view that Real Men keep their hair short. Even medium-length hair will cover part of the ear and is prohibited by the rule.
July 10, 2010, 2:12 pmyankee says:
Sam–thanks for the cites. I didn’t know about those cases. They make no sense to me, but that’s often true in conlaw.
July 10, 2010, 2:14 pmFedya says:
Dress them in unisex Star Trek uniforms. ;-)
July 10, 2010, 2:53 pmUrso says:
Unisex? Compare:
http://vanitysciencefair.files.wordpress.com/2009/11/sparing-gorn_l1.jpg
http://actresses.pick2web.com/pics/381011/graceleewhitney.jpg
July 10, 2010, 4:06 pmiowan2 says:
We are speaking of children here. For eons adults were in charge and children respected authority. Those children entered adult hood seeking freedom. In nature, any species will live in a ‘natural’ state. The natural state of man is freedom. The men that revolted and founded this nation were forced to conform for sake of nothing more than comformity, as children. Just one example that proves the notion of raising children with sill rules does nothing to stifle children.
July 10, 2010, 7:24 pmIf thats what the parents want, why would a judge intervene?
Urso says:
Obviously that’s not what his parents want, or it wouldn’t have been in front of the judge in the first place.
July 10, 2010, 7:36 pmgrog says:
You may have noticed at some point that public schools are not the military. I have no idea what you believe the operation of a war-fighting organization has to do with educating the next generation, but most folks don’t seem to want to send their kids to military academies, which I personally find a healthy trait for free societies.
You also may have noticed that parents of all sorts, not just those with money, do all sorts of strange things to/with their kids. In a free society, they’re generally free to doom their kids to years of therapy, anxiety or alcoholism in their own special ways, within some constraints that drifts with the times. (When I was in grade school, the local tongue-cluckers amused themselves with the fact that my lunch didn’t contain meat, and these days people the nation over freak out because a mommy let their kid ride the subway alone. I’m sure others here have their own stories. Fashions in parental shaming change with the wind, but unfortunately the desire to enforce conformity doesn’t.)
If you want to send your kid to Cartman Junior High to be taught that idiotic rules are not to be questioned, that’s certainly your right. Many of the rest of us, however, prefer that our kids learn to think. Unless and until a kid’s hair becomes a fire hazard, there’s no valid pedagogical reason for some frustrated control freak at a public school to assert their authoritay over it.
The sad thing is that taxpayers had to pay three judges and associated personnel, and likely at least two lawyers to point out this relatively obvious point.
July 10, 2010, 7:38 pmChrisTS says:
Urso says:
For some reason the idea of separate dress codes for genders strikes me as less wrong than differing rules regarding hair lengths. But I can’t really articulate why.
I think we are still at a point in our culture at which a boy in a ‘skirt/dress’ could be an object of abuse by his peers. We are well beyond the point at which girls ‘can’ wear pants.
On the other hand, I don’t think these distinctions are rationally defensible bases for school regulations. If our imaginary Scots boy wears a kilt to school, let the school educate the local yokels. I can see a gender neutral requirement that all students cover their torsos to some length (above and below the primary and secondary genitalia, at least).
But the idea that boys should not have long hair is such a retro response to the sixties that I cannot believe anyone other than ancient culture warriors thinks it makes any sense at all.
July 10, 2010, 8:32 pmVisitor Again says:
When I went to school in the north of England in the late 1940s and early 1950s, the Scottish boys always wore kilts to school on Scottish holidays. However, when I went to school in a T-shirt bearing stripes of vivid colors that my Great Aunt Mary had presented me on one of her annual visits home from the USA, I was sent home with a note directing that I was not to wear an American T-shirt to school in future because it attracted too much attention and disrupted the classroom. That attention and disruption had entirely escaped my notice, although I was quite an observant boy. The note elicited great hilarity in my family, although, of course, we obeyed its dictates.
Within a few years my family, too, had emigrated to America, and I wore an American T-shirt to school, along with blue jeans and high-top sneakers, whenever I wanted to. Such were the blessings of freedom I found in my new country. But I dread to think of what would have been my blessings in my new country had I been a Scottish boy.
July 10, 2010, 10:04 pmReaderY says:
The Fifth Circuit probably got Texas law right here.
But I’d tend to agree that it is a bit odd that a citizen of Texas should be suing a unit of Texas government over a matter of Texas state law and a matter of first impression should be decided by a federal judge with no opportunity for any state court to offer an opinion. Given that the Federal counts didn’t provide the basis for the decision, why not abstain, or at least certify the matter to the Texas Supreme Court?
July 11, 2010, 3:58 amJay says:
I’m not sure what authority would have permitted abstention. The case is in federal court because there were federal constitutional claims as well. As to certification, I think some earlier comments exaggerated the extent to which the issue is a legally novel one under TX law, so certifying it may not have really added much. The dissent doesn’t take issue with the majority’s construction of the statute, but with the factual understanding of what exactly was being requested to accommodate the religious belief (uncut hair v. visibly long hair).
July 11, 2010, 4:31 amToby says:
It has been my strange experience, in years in a univarsity town, that children who think, from an early age, that their expressive rights are principally expressed through unconventional appearance are usuually much less willing to restrict more significant rights such as actual political speech. Perhaps those worked up about this should consider whether they are defending significant rights, or providing a sideshow distraction, as a magician misdirects the audience…
July 11, 2010, 8:45 pmgullyborg says:
how about a law mandating that all children of all genders must regular shave their heads? that seems fair, and addresses the hygiene issue.
July 12, 2010, 2:06 pmScott says:
Anyone know why the question was not certified to the Texas Supreme Court?
July 12, 2010, 2:28 pmRecent Fifth Circuit decision about Texas Religious Freedom Restoration Act says:
[...] tip: Volokh, with background on state RFRA laws [...]
July 30, 2010, 9:26 pm