Styling Alternatives

A pending appeal in Texas illustrates the absurd way courts favor some rights over others

Do you have a right to grow your hair long? Most Americans would reply to this question with a confused look before edging away from their discomforting interlocutor and answering “of course I do.” Growing one’s hair is about the most basic of human functions, literally connected to the right to own your own body. A law against growing out your hair might as well also ban scratching your nose or changing your socks. It’s a right so plain—and so obviously important—we don’t even think about it.

And yet, if you walk into court and claim you have a right to grow out your hair the answer likely will be “oh no you don’t.” This isn’t theoretical either. That reality looms behind a case pending in the Fifth Circuit, which just held oral argument last week. The case is a great example of how the lack of a right for something plainly important bends constitutional law into elaborate epicycles, leading lawyers to make arguments removed from what actually is at issue.

This post first gives the background on the Fifth Circuit case, then explains how it illustrates what has gone astray in how courts look at constitutional rights, and concludes with a change that could make things better. (Whether that will happen is a different story, of course.)

Growing problems

Darryl George was a teenager in the Houston, Texas area who wanted to wear his hair long, including, as many young Black men want to do, in locs. Of course, that meant that unless the locs were abnormally short, his hair would extend past his ears, thus making it “long.”

His problem was his public high school—in the ironically named Barbers Hill Independent School District—mandated that boys keep their hair short. Girls had no similar restriction. George objected to this but the school wouldn’t back down and he consequently served hundreds of days of in-school suspension over the course of a couple years. George subsequently transferred schools and has now graduated but in the meantime he and his mother filed a lawsuit, challenging the policy.

In the litigation itself, George and his lawyers have faced some procedural problems, both in the district court, which eventually dismissed his case on summary judgment, and now in the Fifth Circuit. Therefore, the court may not even reach the merits and if it does may give at least some claims cursory treatment. Nevertheless, his case has received a lot of media attention. A recent summary, post-oral argument, is available here from Courthouse News Service. Whatever the outcome, and without commenting on the quality of the lawyering in the case, what’s pertinent to this post is what claims he brought in the trial court.

Rights extensions

George essentially challenged the school district’s policy with a mix of equal protection, racial discrimination, First Amendment, and state law claims. (Some were then abandoned on appeal. And a part of the whole dispute that ended up in state court raising similar state law claims—under the Texas CROWN Act—became moot after he graduated.) The equal protection claim hinged on the fact that the policy applies to boys and not girls. The racial discrimination claim, under Title VI of the Civil Rights Act of 1964, relied on how the policy disproportionately has an impact on minority hair practices. The First Amendment claim related to the freedom of expressing oneself.

Notice what’s missing? A straight-up right for George to grow his hair long.

Why did George not bring this super-obvious claim? Because it likely would be dead in the water. What ties claims for gender discrimination, racial discrimination, and freedom of expression together is that they tend to allow real judging. Facts matter in those cases. The government has to justify what it’s doing. For the most part policies and laws have to make some kind of sense to be constitutional. That doesn’t mean the government will always lose. Far from it! But it does mean that if the court addresses the merits there’s a good chance of a real assessment of the law and the facts.

On the other hand, the right to wear your hair long—or scratch your nose or change your socks—would likely receive “rational basis review.” This is the same review IJ often fights under in our economic liberty and property rights cases, where the right at issue can be as varied as the right to earn an honest living, or use one’s own property, or help people in need. In cases seeking to enforce these rights the government, and also the court itself, can make up facts as long as they’re plausible and can bend the law to its liking.

Note that none of these rights are “unimportant.” In fact, any random American would say the rights to earn a living or to help others are super important. That’s not why those rights don’t receive real judging. Instead, rights get real judging really just because judges in the past have favored some over others. That’s a long story covered elsewhere, such as when our old friend Clark Neily did in his book Terms of Engagement.

Often the excuse is that these rights, though important, are not specifically listed in the Constitution. And yet, some, like the right to property, actually are and yet they still receive fake judging. Try challenging a zoning rule to find out the hard way.

Therefore, although the most obvious thing for George to have done is simply argue “I have a right to grow my hair long” that wouldn’t get him very far. Perhaps his other claims would work—the gender discrimination claim is an interesting one that’s received various results in different “hair cases” over the years—but the claim you might think would make the most sense likely wouldn’t help much.

A style for liberty

What’s the solution? For courts to see all exercises of liberty (what are sometimes called “natural rights”) as rights that the Constitution protects. Judges would then weigh the specific right against the government’s interests and motivations for restricting it in light of the actual facts. (If you want to dig deeper, I wrote about how this would work in the context of state constitutions in my book Baby Ninth Amendments. I also wrote about a case involving long hair and unenumerated rights in this post.)

The government’s interests would differ depending on the situation. George’s case would be harder for a challenger than a straight-up ban on long hair because the law he’s challenging only applies in a public school. There the specific pedagogical and disciplinary interests mean students often can’t do things that they could at home. Those of you who remember the pros and cons in the “Angry Cheerleader” case from a few years back will be familiar with the special analysis that public schools require. Still, what the Supreme Court has said in that context—free speech—should be true with other rights: students don’t lose them (entirely) at the schoolhouse gate.

This approach would tie the text of the Fourteenth Amendment to the exercise of our liberty, whatever the specific liberty may be. Again, this doesn’t mean the government would always lose, It would mean that rights that are obviously important are protected from arbitrary government power. For now, though, people like Darryl George will need to keep combing through alternative paths for justice.

Anthony Sanders is the Direct of the Center for Judicial Engagement at the Institute for Justice.