Many of you have received letters within the past few days from the ACLU concerning your district’s dress code.  The ACLU’s basic position in these letters is that any gender-based distinctions in a student dress code violate the Equal Protection Clause of the U.S. Constitution and Title IX, and that a Texas federal court recently declared this to be so in a lawsuit currently pending against Barbers Hill I.S.D.

First, please note that this is not an accurate statement of the court’s ruling in the Barbers Hill decision.  However, the court’s action in that case is one of several warning signals we have seen in recent times indicating that gender-based differences in dress codes may soon be declared unconstitutional or otherwise found to be in violation of federal law.

In the Barbers Hill case, which is currently pending in federal court in the Southern District of Texas, two male African-American students are challenging provisions in that district’s dress code that prohibit boys’ hair—and only boys’ hair—from extending below the eyebrows, ear lobes, or the top of a t-shirt collar at any time.

U.S. District Judge George Hanks recently granted one student’s request for a preliminary injunction to prevent the district from enforcing the policy against that student during the pendency of the case.  In doing so, the court has not yet declared the dress code to be unconstitutional.  To receive a preliminary injunction, a plaintiff must show, among other things, a substantial likelihood of prevailing on the merits of one or more claims.  A preliminary injunction is temporary in nature and is designed to preserve the status quo and prevent irreparable harm until the rights of the parties can be determined at a trial on the merits.

In the Barbers Hill decision, the court found that the student met this test and had shown a substantial likelihood of prevailing on the merits of three of his claims: sex discrimination and race discrimination in violation of the Equal Protection Clause and violation of his right to free expression under the First Amendment.

It is important to note that the court’s decision turned on the specific facts at issue in that case.  Judge Hanks granted the preliminary injunction because the district was unable to point to any data or peer-reviewed research showing that the hair length of male students had any impact or connection to the district’s claimed justifications for its hair policy: teaching grooming and hygiene, preventing disruption, avoidance of safety hazards, and teaching respect for authority.

Although the court has not yet officially declared the Barbers Hill policy to be unconstitutional, districts should treat the decision as a warning signal of a potential change in the law that may be coming in the near future.  Of the various claims asserted in that suit, the claim for sex discrimination under the Equal Protection Clause will likely be the most problematic for districts.  Decisions by the U.S. Supreme Court have evolved in such a way over the years to suggest that all government restrictions that impose different requirements on individuals based on their gender must survive the constitutional “intermediate scrutiny” test.  Under that test, the government has the burden of showing “that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

In Barbers Hill, the court determined that the district failed to show sufficient evidence at the preliminary injunction hearing that would meet this test.  It is certainly possible that Barbers Hill I.S.D. may be able to do so at a later stage in the case.  Note that whatever the final decision may be in the Barbers Hill case, that would only bind school districts within the geographic boundary of the Southern District of Texas.  However, the issue is very likely to be before courts in other regions of Texas in the near future.

We cannot predict which way the courts will ultimately rule, but based on the evolution of the law, there is a distinct possibility that gender-based hair policies may soon be declared an unconstitutional violation of the Equal Protection Clause.  Regardless of the ultimate outcome, we can say with a fair degree of certainty that the road to a binding court decision will undoubtedly be paved with numerous challenges, complaints, and lawsuits.

We recommend districts take the opportunity to evaluate how strongly you believe in and want to fight for any gender differences in your dress code.  Districts that decide to keep gender-based distinctions should be prepared to justify their decision with “exceedingly persuasive” evidence to show that the gender-based provisions are “substantially related” to the achievement of “important governmental objectives” that the district actually relied on when it adopted the policy.

We would be glad to assist in the evaluation of your district’s policy and provide any other guidance to help you achieve your district’s objectives.