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Little Girls, Big Hair Trouble

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More women and girls are wearing their hair in a more natural way, but they sometimes face legal hurdles in doing so.

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In recent years, the personal care industry has witnessed a decline in the hair relaxer segment as textured hair consumers, particularly those of African descent, have begun to seek out more natural hair styles and less invasive/harmful products.

But that's not the whole story. As women and girls make more natural or traditional hair choices, they sometimes face legal challenges. Here, author and lawyer Tracy Sanders explores some recent cases and their ramifications.

To read her book on the subject, click here.

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Natural Hair in the Schools

Case Study: Butler Traditional High School – Louisville, Kentucky

In the African American, African, Caribbean, or Latin American cultures, natural hair means it has not been chemically treated. Natural hair is the unaltered hair texture at birth. Natural hairstyles include Afro, braids, dreadlocks, cornrows and twists.

Parents and guardians were warned, “those students who come to school in violation of the dress code will not be allowed to attend class or circulate through the school until their attire is corrected.”

In late July 2016, students at the Butler Traditional High School, a public school in Louisville, Kentucky, were informed that they could be denied the right to education for wearing natural hairstyles such as dreadlocks, cornrows and twists. The Butler Traditional High School Hair/Personal Grooming Code became the center of national controversy.

The Butler Traditional High School Hair/Personal Grooming Code required a neat and clean appearance but prohibited “extreme, distracting, and attention-getting hairstyles.” Parents and guardians were warned, “those students who come to school in violation of the dress code will not be allowed to attend class or circulate through the school until their attire is corrected.”

The natural hairstyles restriction had been purportedly drafted due to concern that “a student’s academic success is directly correlated to appropriate attire and appearance.” 

Natural Hair and Education Discrimination

United States: Public schools (K-12 receiving government funds) are in loco parentis with students – or school administrators have custody of students. School administrators act as parents during school hours or related activities.

Public schools may enforce dress and grooming codes. However, students have First Amendment constitutional rights including freedom of expression, religion, and association. Unlike public schools, private schools (K-12) receive funds through tuition, gifts, and endowments. Private schools are not subject to the same level of restrictions as public schools.

Private schools are not deemed government actors and thus have less government oversight. Private schools may limit First Amendment constitutional rights such as freedom of expression, religion, or association. Unfortunately, students may be treated differently based on hair texture.

Any violation of the dress and grooming codes may be grounds for suspension or dismissal.

There have been allegations of discrimination cases based on natural hair, which has a direct nexus to race. Dress and grooming codes should be drafted and enforced in a race neutral manner. School administrators may assert that disciplinary action due to natural hair is required pursuant to dress and grooming codes. Any violation of the dress and grooming codes may be grounds for suspension or dismissal.

On the other hand, students alleging discrimination may assert but for natural hair, which is tied to race, school administrators would not have engaged in disciplinary action. Under certain circumstances, students may have federal statutory protection provided in Title VI of the Civil Rights of 1964.

Title VI of the Civil Rights of 1964 forbids discrimination in programs or activities that receive federal financial assistance based on race, color, or national origin. The Equal Protection and Due Process Clauses in the Fourteenth Amendment guarantee educational opportunities for all children.

The Butler Traditional High School Hair/Personal Grooming Code natural hairstyles restriction has been lifted and school administrators seek to embrace diversity.

Parents and students protested against the Butler Traditional High School Hair/Personal Grooming Code natural hairstyles restriction because it appeared to have racial animus. Dreadlocks, cornrows, and twists were explicitly prohibited.

Even if the Butler Traditional High School Hair/Personal Grooming Code seemed to be reasonable because mohawks were also excluded, it would have disproportionately affected the education of African descent children. Dreadlocks, cornrows, and twists are cultural connections linked to African descent communities.

The Butler Traditional High School Hair/Personal Grooming Code natural hairstyles restriction would have predominately affected this racial minority group. The Butler Traditional High School Hair/Personal Grooming Code natural hairstyles restriction has been lifted and school administrators seek to embrace diversity.

Natural Hair in the Schools

Case Study: Pretoria High School for Girls – South Africa

In late August 2016, the Pretoria High School for Girls, a private school in Hatfield, Pretoria, Gauteng, South Africa became the center of international controversy. The Pretoria High School for Girls Code of Conduct For Learners 2015-2016 allegedly included a natural hairstyles ban.

The Pretoria High School for Girls Code of Conduct For Learners had been in compliance with the Department of Education of the Gauteng Provincial Government, South African Schools Act No. 84 of 1996. However, learners at the Pretoria High School for Girls claimed they were admonished for “untidy” natural hairstyles.

Due to protest from learners and parents, the natural hairstyles ban became a global media sensation. Thousands demonstrated and utilized social media to denounce the appearance directive as discriminatory and evidence of institutional racism. 

Natural Hair and Education Discrimination – South Africa

South Africa has a history of bitter racial conflict, even though apartheid ended in 1994. Since 1994, there has been progress with respect to the legal system and human rights. According to the Constitution of the Republic of South Africa Bill of Rights 1996, everyone has the right to a basic education. South Africa has vowed to “redress the results of past discriminatory laws and practices.”

While learners in South Africa have the right to a basic education, school administrators may indeed restrict their appearance. Similar to the Pretoria High School for Girls, an example of a Code of Conduct for Learners in South Africa may require a “neat and tidy” appearance and refrain from wearing “exotic hairstyles.”

The natural hairstyles ban may be subjective and based on European descent cultural identity. Learners with kinky-coiled hair textures, however, are fighting for the right to preserve their freedom of choice and natural hairstyles. For learners and parents, the natural hairstyles arguably represent African descent cultural identity. 

"All styles should be conservative, neat and in keeping with a school uniform. No eccentric/fashion styles will be allowed.”

After protest and petition, the Pretoria High School for Girls suspended the natural hairstyles ban. The Pretoria High School for Girls Learner Code of Conduct 2017 Draft for Comment states “cornrows, natural dreadlocks and singles/braids (with or without extensions) are allowed, provided they are a maximum of 10mm in diameter.

Singles/braids must be the same length and be the natural colour of the girl’s hair. Braids shorter than collar length must be kept off the face with a plain navy alice band. Longer braids must be tied back. Cornrows must run parallel from each other from the forehead to the nape of the neck. No patterned cornrows. All styles should be conservative, neat and in keeping with a school uniform. No eccentric/fashion styles will be allowed.”

The Pretoria High School for Girls has invited learners and parents to comment on the Learner Code of Conduct 2017 Draft until September 25, 2016.

Natural Hair and Workplace Discrimination - Country Club Hills, Illinois

Title VII prohibits discrimination in the workplace based on race, which is tied to physical characteristics such as hair or facial features. Title VII permits employers to establish dress and grooming codes.

The dress and grooming codes must be neutral, adopted without discriminatory intent, and applied consistently to all racial and ethnic groups. Title VII prohibits discrimination based on natural hair but does not forbid employers from restricting natural hairstyles. Employers may ban natural hairstyles such as braids, cornrows, and dreadlocks.

The legal reasoning to exclude natural hairstyles from protection is based on the distinction between immutable and mutable physical characteristics. An immutable physical characteristic such as an afro growing out of the scalp cannot be changed. A mutable physical characteristic such as dreadlocks can be changed.

In early October 2016, a student at Rich Central High School in Olympia Fields, Illinois was terminated from employment due to wearing dreadlocks. The student reported to orientation training at Marcus Theaters Country Club Hills Cinema (Marcus Theaters).

A supervisor informed her that the dress and grooming policy banned dreadlocks. The student was advised that she could not wear dreadlocks as a condition of employment. Accordingly, she could not work for the company.

Marcus Theaters has recently revised the dress and grooming policy and issued the following statement: "Effective immediately, no job candidate will be disqualified because they wear dreadlocks. We are in the process of reviewing our protocols and will update them to ensure that they reflect our professional standards and commitment to recognizing the diversity of our associates."

Based on recent cases about natural hair in the schools and workplace, students who wear natural hair and natural hairstyles may have to fight for their rights. Some dress and grooming codes appear to have a disparate impact on education and employment opportunities for people of African descent with kinky hair. International coalitions should be established to collaborate and protect the rights to education and employment for all students around the world.

Natural and the Law is currently seeking sponsorships.

 

Tracy Sanders is an attorney, author, and speaker in Los Angeles, CA. She is founder of Natural Hair and Law, which is an organization formed to provide publications, workshops, and events addressing legal issues related to natural hair in the workplace and schools (learn more about her projects here). She earned a Juris Doctor at Syracuse University College of Law in 2002, Master of Public Administration at the University of South Carolina in 1998, and Bachelor of Arts in Political Science at the University of South Carolina in 1995. Tracy enjoys yoga, traveling, and community service. She is particularly interested in community service initiatives to help young people achieve their education and career goals. Tracy has made appearances on networks such as ABC, FOX, MSNBC, TLC, and WE. Visit her website for information on speaking engagements or to purchase her books.

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