LEVERAGING TITLE VI AND THE ADMINISTRATIVE COMPLAINT PROCESS TO CHALLENGE DISCRIMINATORY SCHOOL DRESS CODE POLICIES

Varying enforcement of school hair policies and other grooming regulations against students has contributed, at least in part, to disparate exclusion of Black students from classroom and extracurricular activities. The consequences arising out of exclusion from school activities can be severe, ranging from lower academic performance to early involvement with the criminal justice system. Generally, disputes around such policies have been settled privately, thus giving no guidance to other students affected and offering no uniform solution.

This Note argues that although not ideally suited to litigation, the issue of discriminatory enforcement of school hair policies is ripe for administrative and legislative action. By taking advantage of the complaint process within the Office of Civil Rights of the Department of Education, students and families can spur the agency to investigate individual schools or even prompt broader regulatory reform. Additionally, this Note proposes that legislation designed to either recreate a private right of action to enforce regulations promulgated under Title VI, or one specifically outlawing discrimination based on hair texture or style will similarly offer a uniform solution.

The full text of this note may be found by clicking the PDF link to the left.

*J.D. Candidate 2020, Columbia Law School. The author thanks Olatunde Johnson for her invaluable guidance and comments, and the staff of the Columbia Law Review for their tireless effort and superb editorial assistance.

Introduction

In recent years, the issue of schools punishing students for dress code violations—specifically, rules that target particular hairstyles—has received considerable media attention because such policies tend to be enforced disproportionately against Black students. 1 See, e.g., Neil Schoenherr, WashU Expert: K-12 School Policies on
African-American Hair Are Discriminatory, theSOURCE (July 13, 2017), https:// ‌source.wustl.edu/2017/07/washu-expert-naturally-curly-texture-african-american-hair-not-extreme-distracting-faddish/ [https://perma.cc/Z8WW-294U]. Either by explicitly prohibiting braids or dreadlocks or by implicitly banning “distracting” hairstyles, these policies have been invoked to punish students with detentions, suspensions, or revocations of other school-related privileges. 2 See, e.g., Kay Lazar, Black Malden Charter Students Punished for Braided Hair Extensions, Bos. Globe (May 11, 2017), https://www.bostonglobe.com/metro/2017/05/‌11/Black-students-malden-school-who-wear-braids-face-punishment-parents-say/stWDlBSCJhw1zocUWR1QMP/story.html (on file with the Columbia Law Review). In addition to perpetuating harmful stereotypes about Black hair, 3 See Letter from ACLU of Mass. to Alex Dan, Interim Sch. Dir., Mystic Valley Charter Sch. (May 22, 2017) [hereinafter ACLU Letter] (on file with the Columbia Law Review); Schoenherr, supra note 1. disproportionately disciplining students for wearing their hair naturally, in braids, or in locks places students at risk for far more serious consequences. 4 See Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 13–16 (2016) (“These discipline disparities, in no small part, also contribute to a lingering achievement gap between African Americans and whites. With African Americans disproportionately removed from the learning environment, they are necessarily academically disadvantaged.”); see also ACLU Letter, supra note 3.

In view of these recent incidents, this Note will explain why litigation should not be the primary means through which students should challenge disparately enforced disciplinary policies in schools. Rather, as this Note will argue, this problem can (and should) be addressed by mobilizing the “sleeping giant” of civil rights law: 5 Olatunde C.A. Johnson, Lawyering that Has No Name: Title VI and the Meaning of Private Enforcement, 66 Stan. L. Rev. 1293, 1294 (2014). Title VI of the Civil Rights Act of 1964. 6 42 U.S.C. § 2000d–2000d-7 (2012). The Title VI complaint process empowers students experiencing discrimination in schools by enabling them to focus public attention on the issue and urge the Department of Education to intervene. 7 See infra section III.A. Should the problem persist, the continued filing of complaints may encourage the Department to take further steps such as issuing guidance or promulgating regulations to specifically target the disparate enforcement of school dress code policies. 8 See infra section III.A. Finally, this Note proposes legislative and administrative action to address disparate impact discrimination in schools and to provide individuals with a private right of action to enforce regulations prohibiting this form of discrimination.

Part I of this Note begins by overviewing recent incidents of Black students being punished for violating policies relating to hair and explaining why this is a problem that should be addressed. This involves a discussion of the school-to-prison pipeline and how school dress codes fit into the pipeline. Part I concludes by examining the history of legal challenges to hair policies in schools, discussing the Supreme Court’s position on school dress codes, and identifying which circuits have (and have not) established a right for students to independently govern their hairstyles.

In Part II, this Note further develops the constitutional arguments presented in Part I to determine whether students might successfully challenge school dress code policies targeting specific hairstyles. Next, Part II introduces Title VI by explaining the types of conduct it proscribes and how it applies in the school context. Then, Part II predicts how Title VI challenges to school dress codes might be structured, and whether they are likely to be successful. As Part II explains, while both constitutional and Title VI arguments may produce results for some students, such litigation is unlikely to help students in particular jurisdictions that have shown hostility to these types of arguments, thereby necessitating a more robust and predictable solution.

Part III proposes legislative and administrative solutions to the problem of disparately enforced dress codes. Title VI gives agencies the ability to promulgate and enforce regulations that prohibit disparate impact discrimination. 9 See 42 U.S.C. § 2000d-1. Part III proposes the administrative complaint process (and any subsequent agency action) as the ideal solution to the issue presented in Parts I and II. In addition, that Part will discuss the viability of legislation and agency-issued guidance as potential alternatives.