# Barber v. Colorado Independent School District

> Texas Supreme Court · June 22, 1995 · 38 Tex. Sup. Ct. J. 902

URL: https://www.frixlaw.com/law-library/cases/9776294

## Case

- **Full name:** Austin David BARBER Et Al., Petitioners, v. COLORADO INDEPENDENT SCHOOL DISTRICT, Respondent
- **Court:** Texas Supreme Court
- **Decided:** June 22, 1995
- **Citations:** 38 Tex. Sup. Ct. J. 902; 901 S.W.2d 447; 58 A.L.R. 5th 799; 1995 Tex. LEXIS 111; 1995 WL 371214
- **Precedential status:** Published
- **Opinion:** Dissent by Gammage
- **Judges:** Gonzalez, Gammage, Spector, Phillips, Hightower, Hecht, Cornyn, Enoch, Owen
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Bastrop Independent School District Board of Trustees v. September M. Toungate, Individually and as Next Friend of Zachariah Toungate, a Minor (1996).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776294

## How later opinions describe it (automated extraction)

- holding a deed to be ambiguous where one clause “conveys nothing” and another clause “conveys everything”
- holding a deed to be ambiguous where one clause A conveys nothing @ and another clause A conveys everything @
- holding that ''we are obliged to decide de nova the issues of law" despite a mixed finding of fact and Jaw
- rejecting a challenge under the Texas Constitution's Equal Rights Amendment

## Opinion text

GAMMAGE, Justice,
dissenting.
The majority summarily dismisses Austin David Barber’s constitutional claims without the benefit of legal analysis and fails to find that CISD’s hair-length regulation implicates the Texas Equal Rights Amendment. It is wrong for several reasons.
First, Barber pleaded his case exclusively on state constitutional grounds. He brought this suit against CISD because the high school’s “hair code” restrictions, which apply only to male students, violated his constitutionally protected rights of privacy and symbolic speech, and freedom from gender discrimination under the Texas ERA. (Although Barber’s privacy and free speech claims under the Texas Constitution are significant, I would dispose of this case on the grounds clearly presented by the Texas ERA.) Second, the CISD regulation reads:
Boys may wear hair to the bottom of the collar, the bottom of the ear and combed out of the eyes. Boys may not wear earrings of any kind.
This regulation, on its face, provides for different treatment of males and females. “Any classification based upon sex is a suspect classification and any law or regulation that classifies persons for different treatment on the basis of their sex is subject to strictest judicial scrutiny.” Mercer v. Board of Trustees, North Forest Ind. Sch. Dist., 538 S.W.2d 201, 206 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref d n.r.e.). Because this regulation is facially discriminatory and Barber brought his cause of action for gender discrimination, we must apply an ERA analysis.
*452 Article I, section 3a of the Texas Constitution mandates that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” The Texas constitution provides broader protection than federal law in matters of gender discrimination because the Texas Equal Rights Amendment “is more extensive and provides more specific protection than both the United States and Texas due process and equal protection guarantees.” In re McLean, 725 S.W.2d 696, 698 (Tex.1987). Our jurisprudence recognizes gender as a suspect classification in this state. Id.; see also Maloy v. City of Lewisville, 848 S.W.2d 380 (Tex.App.—Fort Worth 1993, no writ); Williams v. City of Fort Worth, 782 S.W.2d 290 (Tex.App.—Fort Worth 1989, writ denied); In re Baby Girl S., 628 S.W.2d. 261 (Tex.App.—Eastland 1982, writ refd n.r.e.); Mercer v. Board of Trustees, North Forest Ind. Sch. Dist., 538 S.W.2d 201 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.). We recognize that “[t]he first step in a case invoking this provision is to determine whether equality under the law has been denied.... Our next inquiry is whether equality was denied because of a person’s membership in a protected class of sex, race, color, creed, or national origin.” McLean, 725 S.W.2d at 697 .
The school district acknowledges that its restriction prohibiting hair extending over a student’s collar applies only to males. Accordingly, under the strict scrutiny we must give a gender-based code, regulation or rale, a governmental entity must demonstrate that it has a compelling state interest in discriminating on the basis of gender which cannot be achieved in any other manner. Here, the district maintains that it is sufficient reason to discriminate against male students, if, as the Colorado I.S.D.’s Code of Conduct handbook states, the purpose in regulating the hair length of only males is “to teach grooming and hygiene, instill discipline, prevent disruptions, avoid safety hazards, and teach respect for authority.” At trial and in argument, the school district admitted that what might be its sole compelling interest for this rale is preventing disruptions that long hair on male students may cause. Counsel for the school district, however, conceded before this Court that the district offered no evidence and made no attempt to prove that long hair on male students caused any disruption within the schools. To the contrary, in the words of the district’s own counsel:
[T]he only thing we can do to disprove or prove a compelling point on this matter is to prove disruption. How can you do that? A long-haired student is just as peaceful, he’s a good athlete, good academic, he sits in the back row and does just as good a job as everybody else in that classroom. How DO WE PROVE THAT THAT IS DISRUPTIVE? WE can’t.
Other courts addressing school districts’ arguments that long hair on male students is disruptive have also noted:
Educators testifying for the defendants stated that in their opinions long hair on male students could be disruptive, and, thus, they believed the maximum hair length rale to be necessary to promote the educational process. As we read the record, none of these defense witnesses documented a factual basis for his opinion that there was any cause and effect relationship between short hair and better education or between long hair and inferior education.
Neuhaus v. Federico, 12 Or.App. 314 , 505 P.2d 939, 945 (1973) (emphasis in original).
Nor are the hair-length restrictions even rationally related to the goals of promoting safety and hygiene. “[Although girls engage in substantially the same activities in gym and biology classes, only boys have been required to cut their hair in order to attend classes.... [Defendants have offered no reasons why health and safety objectives are not equally applicable to high school girls.” Crews v. Cloncs, 432 F.2d 1259, 1266 (7th Cir.1970). CISD’s argument that its policy promotes grooming and hygiene among the entire student body is suspect because the regulation only addresses the length of a male student’s hair, not its style or cleanliness. See Neuhaus, 505 P.2d at 945 . Because CISD can offer no proof that any purported objectives of educational policy are met by regulating the hair length of male students only, the hair-length rale cannot survive even minimum rationality scrutiny.
*453 Finally, CISD’s grooming policy fails the minimum scrutiny of a rational basis test because it significantly intrudes into the private lives of students with proportionately little justification.
[W]hile the intention of such a rule is to control hair length during school hours, its necessary effect is to control hair length for 24 hours a day and out-of-school activity is therefore regulated more than is in-school activity. Since hair cannot, in the nature of things, be short at school and yet the length preferred by a student and his parent at other times, this rule is more akin to a regulation forbidding students from attending parties in the evening, than one prohibiting metal shoes in a school building_ A rule imposing such a significant invasion into the private lives of children and their parents requires a showing of greater justification and demonstrable need by the school board than one regulating purely in-school appearance, such as a rule about lengths of skirts.
Independent Sch. Dist. No. 8 of Selling, Dewey County v. Swanson, 558 P.2d 496 (Okla.1976.); see also Neuhaus, supra. CISD’s argued justification for this dramatic incursion into male students’ private lives is too unsubstantial to support the legitimacy of its hair-length policy.
The school district admittedly cannot prove that this gender-based discriminatory hair length rule could meet even the much less stringent standards of a rational basis test. It argues, instead, that the rule is a mandatory “teaching device,” reflecting “the community’s societal values. It’s harder for a person in Colorado City, Texas to get a job if they have long hair.” The majority of this Court chooses, without the requirement or offer of any proof, to accept this specious explanation for a gender-based, discriminatory regulation without any concern for its infringement of constitutionally guaranteed personal liberties. While dress and grooming codes do not, per se, violate the constitution, they must be based upon compelling educational goals and may not be arbitrary and without foundation in furthering the educational mission of schools or avoiding disruptions. By its own admission, CISD’s gender-based hair-length rule is “arbitrary” and does not achieve the rule’s purported educational goal. This provision of the grooming code, consequently, cannot withstand analysis under the Texas Equal Rights Amendment.
A school district is not an autonomous branch of government; it is a creation of the Legislature — a political subdivision of the State. Tex. Const, art. 7, §§ 1, 3 (Vernon’s 1993) and Tex.Rev.Civ.StatAnn. arts. 2656, 2780. It is axiomatic that a school district has only those powers granted it by the Legislature, and the Legislature cannot grant to school districts powers which it does not itself possess. The Legislature has no power to act in violation of the constitution and it may not grant Colorado Independent School District’s Board the power to do so. Where a school board acts, it acts on behalf of the state, and its actions are those of the state.
The school districts of this state are charged with an educational mission, and are endowed by the Legislature with the necessary constitutional authority to perform that mission. The Colorado I.S.D. School Board neither argues nor offers any evidence that this gender-based rule contributes to or is in any way calculated to aid in accomplishing that mission. The constitution exists to establish a form of government, provide for its operations, and to protect citizens from government intrusions upon their rights and liberties. Because public school districts are institutions of government and legislatively-created political subdivisions of the state, school district action is government action and, absent some permissible bases founded upon an adequate standard, government may not violate constitutional prohibitions or intrude upon citizens’ constitutionally protected liberties.
The majority also inappropriately adopts the Fifth Circuit Court of Appeal’s judicial nonintervention policy in grooming code cases. This Court is properly reluctant to intervene with the “heavy hand of justice” in local school matters. But when the heavy hand of local government arbitrarily discriminates against its citizens in violation of constitutionally guaranteed limitations, and is challenged by its citizens in our courts, the *454 courts are required to respond. As the majority notes, the Fifth Circuit Court of Appeals has declined to act on challenges to school grooming codes. See Ferrell v. Dallas Ind. Sch. Dist., 892 F.2d 697 (5th Cir.1968). This ease is not a federal cause of action, however, but was brought in Texas courts under the Texas Constitution. We are aware that some state courts adopt wholesale the federal judiciary’s approach to federal constitutional issues in interpreting their own state constitutions, disregarding whether their state constitutions contain the same clauses or provisions as the federal constitution. Hans A. Linde, State Constitutions Are Not Common Law: Comments on Gardner’s Failed Discourse, 24 Rutgers L.J. 927 , 928 (1993). But state courts are not bound to follow the analysis or approach of federal courts, and state governments are bound by the constraints of their own constitutions which may exceed federal constitutional limits on government action. “We are not a branch of the federal judiciary; we are a court created by the Constitution of [this state] and we owe our primary obligation to that fundamental document.” Sands v. Mor-ongo Unified Sch. Dist., 53 Cal.3d 863 , 281 Cal.Rptr. 34, 60 , 809 P.2d 809, 835 (1991) (Mosk, J., concurring). In fact, this Court recognizes that “federal precedent is not controlling when considering a case under the Texas Equal Rights Amendment.... [N]o federal constitutional counterpart exists, efforts to secure ratification of a national E.R.A. having met with a lack of success_ We decline to give the Texas Equal Rights Amendment an interpretation identical to that given state and federal due process and equal protection guarantees.” In re McLean, 725 S.W.2d at 697 . The court in Mercer recognized the inappropriateness of applying a federal analysis to an identical case expressly because “the present claim is based on a provision of the Texas Constitution that is not contained in the United States Constitution.... Therefore, appellants’ claim must stand or fall on an interpretation of the ERA contained in the Constitution of the State of Texas.” Mercer, 538 S.W.2d at 203 .
Even the court in Karr v. Schmidt, 460 F.2d 609 (5th Cir.1972), decided before the ERA was enacted, acknowledged that state legislatures are more competent to address local issues such as hair-length regulation than is the federal judiciary. By enacting the Texas ERA, the legislature and the people of Texas codified the state’s intolerance of gender discrimination. Because our constitution, unlike the federal constitution, specifically prohibits gender discrimination, we cannot properly utilize a federal approach in this case. As the state’s highest court, we are bound to enforce the Texas Constitution’s mandate under the ERA We consequently must decline to follow the Fifth Circuit Court of Appeals’ policy of judicial inaction in school grooming challenges when properly brought under our state constitution.
Of the fifteen other American jurisdictions having such provisions in their constitutions, none have been called upon to decide this issue under their respective state ERAs 1 . This is because, in most cases, before those states’ ERAs were enacted, their respective state or federal district courts had already found alternative grounds for invalidating gender-based hair-length restrictions. For example, the Supreme Court of Alaska held that such regulations violated students’ rights under the state constitution because schools had no compelling interest in regulating hair length. Breese v. Smith, 501 P.2d 159 (Alaska 1972). Consequently, future litigants were not compelled to invoke the states’ ERAs because the prohibited practices had already been dealt with under lesser degrees of constitutional scrutiny. (Presumably, one of the purposes of enacting state equal rights amendments is to provide greater protection against gender discrimination by elevating the standard of judicial constitutional scrutiny.) See also Richards v. Thurston, 424 F.2d 1281 (1st Cir.1970) (invalidating hair-length restriction under a personal liberty analysis); Massie v. Henry, 455 F.2d 779 (4th Cir.1972) (striking grooming code for lack of rational basis).
*455 “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487 , 81 S.Ct. 247, 251 , 5 L.Ed.2d 231 (1960). School officials, like all other public officials, must exercise their delegated authority within constitutional boundaries. The majority has nevertheless chosen to overlook CISD’s unconstitutional exercise of authority by attempting to characterize this case as one involving nonconstitutional issues and by summarily determining that the hair-length rule meets a rational basis test without the benefit of any proper analysis. One would hope that no other prohibited form of invidious discrimination based on an immutable characteristic would be similarly tolerated by this Court, even with respect to grooming rules. Hopefully this Court would not adopt the position that judicial intervention would be improper if a school board promulgated a regulation which read: “Hispanic-American students may wear hair to the bottom of the collar, the bottom of the ear and combed out of the eyes. Hispanic-Americans may not wear earrings of any kind.” Surely such a rule would be acknowledged as an outrage by this court because it facially discriminates on the basis of ethnicity. The majority, however, adopts an inappropriate extrajudicial nonintervention policy in school grooming code cases which would allow this facially unconstitutionally discriminatory regulation to survive. Such a court-made policy not only fails to protect students from unwarranted government infringements upon their constitutionally guaranteed rights, but also fails even to teach them the “lesson” that CISD proclaims as invaluable to its students; that is, “that the local employer in Colorado City or Blockbuster in Dallas doesn’t conform to the constitution.” (Oral argument of Tom Rees, counsel for CISD, November 16, 1994)
By its decision today, the majority renders meaningless the action of the people of Texas in placing the ERA in their state constitution, engaging in nothing less than the gratuitous judicial nullification of an act of the people of Texas and totally disregarding their expressed constitutional will by simply defining it out of existence. CISD’s grooming code unconstitutionally discriminates against the District’s male students in violation of the Texas Equal Rights Amendment.
Baseless and irrational discrimination in all its forms, at whomever directed and whatever its source or motivation, is still baseless and irrational discrimination. In a free society we may not always be able to prevent its private exercise, but in Texas our fundamental law does not permit it in our public schools and other governmental institutions. They should not teach it, condone it, or engage in it, and our courts and other legal institutions should not — even passively and benignly — enforce it. I dissent.
. The jurisdictions with equal rights amendments in their state constitutions are Alaska, Colorado, Connecticut, Hawaii, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Utah, Virginia, Washington, and Wyoming, as well as Puerto Rico.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776294. Public record. Not legal advice.