# BD. OF TRUSTEES OF BASTROP INDEPENDENT SCH. DIST. v. Toungate

> Texas Supreme Court · February 13, 1998 · 958 S.W.2d 365

URL: https://www.frixlaw.com/law-library/cases/9659552

## Case

- **Full name:** BOARD OF TRUSTEES OF BASTROP INDEPENDENT SCHOOL DISTRICT, Petitioner, v. September M. TOUNGATE, A/N/F of Zachariah Toungate, a Minor, Respondent
- **Court:** Texas Supreme Court
- **Decided:** February 13, 1998
- **Citations:** 958 S.W.2d 365; 1997 WL 655962
- **Precedential status:** Published
- **Opinion:** Concurrence by Baker
- **Judges:** Owen, Baker, Spector, Phillips, Gonzalez, Hecht, Abbott, Enoch
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9659552

## How later opinions describe it (automated extraction)

- noting that although school administrators stand in loco parentis with minor children, “[t]here is a valid distinction ... between state regulation of adults and state regulation of elementary and secondary school children”

## Opinion text

BAKER, Justice,
joined by ENOCH, Justice, concurring.
I concur in the Court’s judgment. However, I write separately because, regardless of whether a student asserts a statutory or constitutional right, this Court should not involve itself in hair length disputes. See Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447, 451 (Tex.1995).
Section 106.001a—The Anti-Discrimination Statute
First, I believe that, in addition to what the majority states, Barber also precludes Toungate’s statutory claim. Section 106.001 states:
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 origin:
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(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]
*374 (6) impose an unreasonable burden on the person....
Tex. Civ. Prac. & Rem.Code Ann. § 106.001(a). Similarly, the Equal Rights Amendment states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.... ” Tex. Const, art. I, § 3a. From my reading of the statute, I do not believe that the Legislature intended § 106.001 to create a cause of action for hair length disputes. While Barber deals with a constitutional challenge, its reasoning equally applies to a statutory challenge. The Court in Barber held that the state judiciary is less competent to deal with students’ hair length than a parent, school board, administrator, principal, or teacher. Therefore, for the same reasons that the Constitution does not afford Toun-gate a remedy, I believe that Toungate does not have a cause of action under the statute.
Second, the court of appeals held that § 106.001 is not merely an extension of the Texas Equal Rights Amendment. The court concluded that § 106.001 has a pedigree independent of the Equal Rights Amendment because the Legislature enacted § 106.001’s predecessor, article 6252-16, § 1, to further implement the 1964 Civil Rights Act. I disagree with this conclusion.
Section 106.001’s prohibition on sex discrimination does not have a separate pedigree from the Equal Rights Amendment. Article 6252-16, § 1 only protected against invidious discrimination on the basis of race, religion, color, or national origin. See Act of April 18, 1967, 60th Leg., R.S., ch. 72, § 1, 1967 Tex. Gen. Laws 138 , amended by Act of June 15, 1971, 62nd Leg., R.S., eh. 989, § 1, 1971 Tex. Gen. Laws 2994 . In 1971, the Legislature amended this article to include sex as a protected class. See Tex. Civ. Prac. & Rem.Code Ann. § 106.001. The same Legislature proposed the Equal Rights Amendment. See Tex. S.J. Res. 16, 62nd Leg., R.S., 1971 Tex. Gen. Laws 4129 . Therefore, the Legislature considered and passed § 106.001’s prohibition on sex discrimination and the Equal Rights Amendment in the same session. 'When the Legislature enacts two acts in the same session, we read the acts together. See Garrett v. Mercantile Nat’l Bank, 140 Tex. 394 , 168 S.W.2d 636, 637 (1943); General Southwestern Corp. v. State, 333 S.W.2d 164, 170 (Tex.Civ.App.—Houston 1960, writ ref d n.r.e.). Reading the two together, I conclude that the Legislature enacted § 106.001’s' protections against sex discrimination to further the Equal Rights Amendment’s policies. In this case involving hair length disputes, the statute does not rise above the Constitution.
Accordingly, I concur in the Court’s judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9659552. Public record. Not legal advice.