ent context, finding that appearance regulations are defensible if they have some justification in accepted social norms. So school districts should be able to successfully argue that, at least in their communities, hair-length rules for boys are based on relevant community norms.
Care should also be taken to establish that there is an overarching grooming policy that is equally harsh on boys and girls alike. The court provided some examples of questions it might ask to determine if a boys’ hair length policy is part of a larger, consistently-applied grooming program that includes limitations on both male and female students. For example, a court might ask:
- Are female students prohibited from wearing jewelry?
- Are female students required to wear their hair in any particular way with the goal of having a neat, clean-cut appearance?
- Are there limits, other than those on “extreme” hairdos like Mohawks, on how female students can style their hair and are any of those limits based on community norms (e.g., a prohibition on “buzz cuts”)?
- Are the respective grooming standards enforced evenhandedly between girls and boys?
Although these are just examples, they provide some insight into the types of limitations on female programs that a court might consider when determining if a grooming policy limits boys and girls equally.
Based on this case, school leaders should take a close look at any gender specific grooming policies for their sports teams to ensure that they are based on relevant community standards and that any limitations that apply to only one gender are based on community norms and are part of a comprehensive grooming policy that, as a whole, is equally burdensome on male and female players. If a rule complies with these standards, it will be in the best position to withstand scrutiny even after the Hayden decision.
Last week, the Department of Education issued a guidance package to help schools administer student discipline without discriminating against students on the basis of race, color, or national origin. The issue of discriminatory discipline is not new; indeed, the Franczek Radelet Education Insights blog warned about the issue early last year. Moreover, the guidance does not create any new law but rather provides information and examples of the Department’s expectations under existing law. Nonetheless, the new guidance is the first national guidance issued on school discipline and likely will be given some deference by courts interpreting the issue, and so is noteworthy and warrants particular attention from school leaders.
The core of the Department’s guidance can be found in a Dear Colleague Guidance Letter (DCL) that was prepared in conjunction with the Department of Justice. The DCL begins with the recognition that discipline is essential for the operation of safe and orderly schools. The DCL then cites statistics showing that discipline in public schools often falls disproportionately on students in minority groups and documents the harms on those students that results. The DCL warns that federal law prohibits discrimination by public schools in the administration of student discipline based on race, color, and national origin, and that the Department will investigate complaints of such discrimination and may require schools to take steps to remedy any issues it finds.
The DCL describes at length and provides examples of the types of discrimination that the Department investigates (“different treatment” discrimination, which is often thought of as intentional discrimination, and “disparate impact” discrimination, which results when there is not necessarily an unlawful intent behind discrimination but it nonetheless leads to an unlawful impact on a particular group). Notably, the DCL makes clear that discrimination can occur at all levels of the disciplinary chain of command, from the decision of a teacher to send a student out of class to the final disciplinary decision by administration. The DCL also clarifies that school districts can be responsible for discrimination not just by employees, bu