Opinion from Rose Spector - Lawyer, Lawyers, Attorney, Attorneys

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Opinion from Rose Spector - Lawyer, Lawyers, Attorney, Attorneys ...



     NO. 96-0690









     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.

     I dissent.


     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, 71521 (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 punishedthat 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 imposedremoving him from

    his classroom and placing him in solitary suspensionwas 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

    of others‖).

     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.


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