IN THE SUPREME COURT OF TEXAS
BOARD OF TRUSTEES OF BASTROP INDEPENDENT SCHOOL DISTRICT, PETITIONER
SEPTEMBER M. TOUNGATE, A/N/F OF ZACHARIAH TOUNGATE, A MINOR, RESPONDENT
ON APPLICATION FOR WRIT OF ERROR TO THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
Argued on April 24, 1997
JUSTICE SPECTOR, dissenting.
Eight-year-old Zachariah Toungate was severely punished for breaking a school
district rule that violated state law. The school district argues essentially
that rules are rules, and they must be obeyed. September Toungate, Zachariah’s
mother, contends that school rules must be reasonable and conform to the laws
of the state. Both parties are now before this Court, and the Court holds that
the relevant state statute does not apply to school district hair-length policies.
In 1989, first-grade student Zachariah Toungate began growing a small ―tail‖
of hair on the back of his head. He wanted to look like his father, a Navy veteran
who had worn a ponytail for some fifteen years. By the time Zach entered second
grade at Mina Elementary School, his tail had grown to four inches and extended
just below his shirt collar. Nonetheless, he successfully and peacefully completed
the school year. When Zach returned from summer vacation in 1990 to begin third
grade, his tail extended three to four inches below his shirt collar, in violation
of the Bastrop Independent School District grooming policy that forbade boys’
1 At the beginning of the school year, Zach hair from reaching below the collar.
was sent home after school one day with a note stating that the length of his
hair violated the school dress code.
After discussing the matter with Zach, September Toungate (―Toungate‖)
arranged a meeting with the school’s principal, who informed her that the purpose
of the rule was to enforce the notion that boys should look like boys and girls
should look like girls. The superintendent of the school district later took
the position that rules are rules, whether arbitrary or not, and students must
follow them. Ultimately, the school board denied her request that it modify or
repeal the gender-based hair-length rule.
Following her meeting with the principal, Zach’s mother kept her son at
home for over a week. She believed that the principal had told her that Zach
would not be allowed to return to school unless he cut his hair. When it was
determined that this was not the case, Zach returned to school. As punishment,
he was placed in ―in-school suspension.‖ This suspension required Zach to spend his school day in a twelve-foot by fifteen-foot room with butcher paper covering
all the windows. Zach’s former classroom teacher communicated his assignments
to him by way of a substitute teacher, whom the school district required only
to have a high school diploma. There Zach sat day after day for four months,
completely alone except for his substitute teacher and the occasional student
1 While only the boys’ hair-length rule is at issue today, the hair rule, in its entirety, provides:
Students are expected to come to school well-groomed and appropriately dressed every day. Hair will be clean and properly combed, and
clothing will be neat and clean. Boys’ hair must meet the following guidelines: The rear length must be no longer than to the
bottom of a regular shirt collar. On the sides, the bottom of the earlobe must be visible. In the front, the length cannot be longer
than the top of the eyebrows. Afro style is limited to a maximum of 3 inches in length.
who had been sent to the room briefly as punishment for other offenses. Zach
remained in the windlowless room for lunch, took recess by himself, could not
participate in music class, and was relegated to watching from the bleachers as
his former classmates performed the Christmas pageant. In short, he was denied
all meaningful modes of socialization that are afforded to other public school
children and play a critical role in their education and development.
This case concerns a dress and grooming code. Undeniably, dress and grooming
codes in schools have many beneficial purposes and are being adopted in public
schools across the state. They can legitimately foster unity, self-respect, and
pride in appearance; prevent the distraction of immodest or inappropriate attire
or attire that might flaunt differences in socioeconomic status; help to maintain
classroom discipline by preventing disruptive classroom behavior; and promote
safety by banning gang-related clothing or markings. See generally Wendy Mahling,
Note, Secondhand Codes: An Analysis of the Constitutionality of Dress Codes in
INN. L. REV. 715, 715–21 (1996) (discussing justifications the Public Schools, 80 M
for public school dress codes); Larry D. Bartlett, Hair & Dress Codes Revisited,
33 EDUC. LAW REP. 7 (1986) (collecting hair and dress code cases). That dress and
grooming codes serve legitimate purposes, however, does not mean that school districts
have a license to impose unjustified, discriminatory standards.
Here, Toungate’s discriminatory claim is based only on the portion of the
Bastrop hair-length policy for which Zach was punished—that portion that
distinguishes between the appropriate hair length for boys and girls.
Toungate claims that Bastrop’s hair-length policy violates section 106.001 of the Texas Civil Practice and Remedies Code. The relevant portion of the statute
(a) An officer or employee of the state or of a political subdivision of
the state who is acting or purporting to act in an official capacity
may not, because of a person’s race, religion, color, sex, or national
* * * (4) refuse to permit the person to participate in a program owned,
operated, or managed by or on behalf of the state or a
political subdivision of the state;
(5) refuse to grant a benefit to the person; [or]
(6) impose an unreasonable burden on the person
EX. CIV. PRAC. & REM. CODE ? 106.001(a). We have held that in interpreting a statute, T
we must follow the clear language of the statute, and seek the intent of the Legislature
as found in the plain and common meaning of the words and terms used. Monsanto
Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993). Because nothing in the clear language of the statute suggests that the Legislature intended
to exempt schools from its application, it is necessary to examine Toungate’s
claim under this statute. Toungate complains that Zach’s in-school suspension
violated section 106.001 because it imposed an unreasonable burden on Zach and
denied him benefits, all because of his sex.
Initially, the threshold question to implicate section 106.001 is whether
the unfavorable treatment occurred ―because of‖ Zach’s sex. TEX. CIV. PRAC. & REM.
CODE ? 106.001(a). The school board argues that its treatment of Zach is gender-neutral
because it punishes all students, male and female, who violate grooming rules.
This argument is specious. There can be no question that the school board’s
hair-length rule at issue today is not a gender-neutral grooming rule, such as
rules requiring cleanliness. Rather, it distinguishes students on the basis of
sex: by its own terms, it applies only to boys’ hair. See Reed v. Reed, 404 U.S.
71, 75 (1971). Because Zach was punished for violating a hair-length rule that applied only to boys, he was treated differently because of his sex.
The first two statutory provisions concern whether the district refused to permit Zach to participate in a program operated by the state or refused to
EX. CIV. PRAC. & REM. CODE ? 106.001(a)(4), (a)(5). It is grant him a benefit. T
undisputed that the school district forbade Zach from participating in extracurricular activities such as the school Christmas play. In doing so, the district refused to permit him to participate in a program operated by the state.
It also refused to grant him the benefit of extracurricular activities. The district cannot remove certain students from its programs at its whim. These educational components are benefits to the students, the denial of which, based on gender, brings the school district’s actions within the purview of section 106.001. Because these benefits were denied because of Zach’s sex, Bastrop violated the clear statutory language of 106.001(a)(4) and (a)(5).
Additionally, under (a)(6), the first issue is whether the school district imposed a burden upon Zach. Id. ? 106.001(a)(6). Toungate asserts that the district
burdened Zach by removing him from his regular class and assigning him to in-school suspension for four months, depriving him of recess and lunch with his fellow students, forbidding him from participating in extracurricular activities, and denying him regular classroom interaction with others.
The school district responds that it did not impose a burden on Zach for three reasons. First, it maintains that in-school suspension was a lesser form of punishment than the district was entitled to impose for a repeated violation of a school rule. The fact that the district could have chosen to impose greater
punishment does not, however, mean that the punishment imposed—removing him from
his classroom and placing him in solitary suspension—was not a burden on Zach.
Second, the district asserts that it did not burden Zach because he received
a more favorable student-teacher ratio and better grades in in-school suspension
than in his regular classroom. Third, the district asserts that Zach was not
burdened because during in-school suspension, in the board’s view, he received
an appropriate education. Discussing these two reasons together, it is clear
that while there was some testimony that Zach’s grades may have risen briefly
while he was suspended, the record is replete with evidence that he was traumatized
by being isolated from other students and removed from extracurricular activities.
The district’s treatment of Zach was severe enough that he suffered from nightmares
and his parents later sent him to psychological counseling. Upon the advice of
his counselor, Zach’s parents finally removed him from school altogether. These facts establish that the school district’s treatment of Zach imposed a burden
EX. CIV. PRAC. & REM. CODE ? 106.001(a)(6). on him. See T
The fact that the school district subjected Zach to burdens because of his
gender does not end the inquiry, because not all sex-based treatment is illegal.
Once sex-based treatment is proven, the issue becomes whether the school district
has a sufficient justification for such treatment. Were this case being decided
under the Equal Rights Amendment, Toungate’s showing of sex-based treatment would shift the burden to the school district to demonstrate that its treatment of Zach
is necessary to protect the district’s compelling interest. In re McLean, 725
S.W.2d 696, 698 (Tex. 1987). Because this case arises under the statute, however,
the burden remains with Toungate to demonstrate that the district’s treatment
of Zach was unreasonable. TEX. CIV. PRAC. & REM. CODE ? 106.001(a)(6).
The reasonableness of Zach’s treatment is assessed by balancing the student’s
right to freedom from discrimination against the school district’s right to determine
for itself how to provide a quality education to its students. As the court of
appeals noted, ―Disruption is the touchstone of this balancing analysis; we must
determine whether Zachariah’s assertion of his rights disrupts the Board’s legitimate
education goals.‖ 922 S.W.2d 650, 655. Toungate disputes whether any of the
following goals justify Zach’s treatment: the need for discipline and a nondisruptive
environment, school security, gender identification, and socialization. The
hair-length policy and four-month suspension of Zach must be evaluated in terms
of their ability to further these goals. Each goal is discussed in turn.
First, discipline is a genuine concern of school administrators, and a
nondisruptive environment is of great importance in the schools if the educational
EX. EDUC. CODE ? 21.301(b)(2) (authorizing in-school process is to be effective. T
2suspension for ―serious or persistent misbehavior‖). The district, however,
established no connection between hair length and classroom disruption. Class
disruption is behavior that ―interferes with the teacher’s opportunity to present
material or the other students’ ability to concentrate.‖ State Board of Education
Student Discipline Rules ? 133.26(a)(1). There was no such interference here.
Indeed, Zach completed the second grade with a four-inch tail that never interfered
2 This section was repealed in 1995, rewritten, and recodified in Chapter 37 of the new Education Code. The old Education Code allowed a school board to place a student in in-school suspension for engaging in “serious or persistent misbehavior that violates” the student’s code of conduct.
The new Code, in contrast, allows a teacher to remove a student
(1)who has been documented by the teacher to repeatedly interfere with the teacher’s ability to communicate effectively with the students in
the class or with the ability of the student’s classmates to learn; or
(2)whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher’s ability to
communicate effectively with the students in the class or with the ability of the student’s classmates to learn. TEX. EDUC. CODE ? 37.002(b). Thus, under the current statute, suspension of a child for violating a hair-length rule would be legal only if the child is documented as repeatedly interfering with the learning process or the child is extremely unruly, disruptive, or abusive.
While wearing long hair to school every day may qualify as persistent misbehavior justifying in-school suspension under the old Code, it is unlikely that a school district could show that a child’s hair length alone warrants in-school suspension under the current statute.
with the learning process in his classroom, and the district’s own psychologist testified that having hair below the collar is not disruptive. Moreover, there
was no showing that Zach’s hair was unclean or unsafe. Cf. Gere v. Stanley, 453 F.2d 205 (3d Cir. 1971) (holding male student’s hair length was a disruption where student kept hair unclean and had habit of dipping his hair in food and flipping
it over his head); Bishop v. Cermenaro, 355 F. Supp. 1269 (D. Mass. 1973) (upholding
vocational high school’s hair code to insure safety of male students in shop class).
More telling, however, is that there was no evidence of any disruption caused
by Zach’s hair before his suspension. The only disruption occurred after he had been suspended and resulted from his being teased by other students. It was only
after the school board singled out Zach by punishing him that the other elementary
school students suddenly ―realized‖ that Zach was a rebellious ―outcast‖ and teased
him for it.
Security, the next asserted goal, is not furthered by the hair-length rule.
The district claims that the rule prevents the proliferation of gang activity
in the district. As the trial court wrote, ―Without playing down the significant
impact real gangs could have on any school district,‖ the evidence produced at
trial demonstrates that there was no gang activity in any elementary school or
among boys with tails.
The next proffered goal is gender identification based on hair length.
We need not decide if it is always illegal for a school board to establish different
dress codes for boys and girls. In this case, however, the reinforcement of the
stereotype that ―only girls have long hair‖ is neither positive nor healthy for
the child. In short, it is ―archaic and overbroad.‖ Schlesinger v. Ballard, 419 U.S. 498, 508 (1975). The facts of this case demonstrate the overbreadth of such
stereotypes, because Zach’s ―girlish‖ hairstyle was actually a form of male
identification in that it mimicked his father’s ponytail.
Similarly, in his deposition, Zach stated that eventually he wanted to join
the Air Force. In response, at oral argument Bastrop’s counsel stated that ―it’s
an appropriate function of the school to teach the student at an early age that
Zach, if you want to join the Air Force, you are going to have to cut your hair.‖
The discriminatory effect of this hair-length policy lies in the fact that no
like provision applies to the female students similarly situated who might have
similar career aspirations. This archaic gender-based distinction is not permitted
under the applicable statute.
Next, unquestionably, the hair-length policy is counterproductive to the
asserted goal of socialization, or teaching students how to live in society.
Rather than teaching that appreciation of human difference is an important social
skill, the rule teaches intolerance based on what the school district concedes
EX. ADMIN. CODE ? 75.32(j)(2)(E) (Tex. is a ―relatively unimportant‖ matter. See 19 TEduc. Agency, Curriculum) (requiring, as essential element of third-grade education,
that school provide student opportunity to ―demonstrate tolerance for and acceptance
As the court of appeals wrote in its prior decision, the fact that the Legislature
allows schools to send students to in-school suspension ―does not necessarily make it reasonable in these circumstances.‖ Toungate v. Bastrop Indep. Sch. Dist.,
842 S.W.2d 823, 827 (Tex. App.--Austin 1992, no writ). Weighing the school district’s legitimate educational goals against the district’s egregious denial of educational
and social benefits to Zach because of his hair length, I would hold that the
school district also violated the sex discrimination provisions of section
The Court today, in its analysis of the school district’s hair-length regulation, cites cases from other states with statutory language similar to that in section
3 The Court, however, conveniently focuses its analysis on cases in the 106.001.
employment context as opposed to the school context. Notably, the seven cases
cited by the Court which upheld grooming and hair-length policies in other states
with statutes similar to 106.001 all involved an employer’s policy regulating
the hair length of its employees. See Pik-Kwik Stores, Inc. v. Commission on
Human Rights & Opportunities, 365 A.2d 1210 (Conn. 1976) (employer refusing to
hire male interviewee unless he cut his hair); Indiana Civil Rights Comm’n v. Sutherland Lumber, 394 N.E.2d 949 (Ind. Ct. App. 1979) (male employee fired for
refusing to shave his mustache); Bedker v. Domino’s Pizza, Inc., 491 N.W.2d 275 (Mich. Ct. App. 1992) (employer firing male employee because his hair fell below
his collar); Planchet v. New Hampshire Hosp., 341 A.2d 267 (N.H. 1975) (employer dismissing male employee for refusing to cut his hair); Page Airways of Albany, Inc. v. New York State Div. Of Human Rights, 376 N.Y.S.2d 32 (App. Div. 1975) (employer firing male employee for violating hair-length policy), aff’d, 352 N.E.2d 140 (N.Y. 1976); Lockhart v. Louisiana-Pacific Corp., 795 P.2d 602 (Or. Ct. App. 1990) (employer firing male employee for violation of policy against facial jewelry
on males); Albertson’s, Inc. v. Washington State Human Rights Comm’n, 544 P.2d
98 (Wash. Ct. App. 1976) (employer firing male employee for failing to comply
with hair-length regulation).
In contrast, both cases cited by the Court holding hair-length policies
3 Significantly, the great majority of the hair-length cases were decided a quarter-century ago.