The Fashion Police Get Serious

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>What does the Needville, Texas school district have in common with Iran? Both regimes strictly regulate male hairstyles.  Iran bans "decadent Western cuts," including ponytails; the Needville school district prohibits braids, (among other styles,) ruling that "[b]oys' hair shall not cover any part of the ear or touch the top of the standard collar in back."

But since we are not Iran, the Needville school policy was successfully challenged in federal court by the Native American parents of a kindergarten student ("A.A.") who was suspended from school for wearing a long braid, in accordance with his family's religious beliefs.  In a decision earlier this month, the 5th Circuit Court of Appeals ruled that state law barred the school from applying its grooming policy without regard to the burden imposed on religious belief.  (The court did not have to decide the case on constitutional grounds since Texas law protects religious belief from burdensome regulations.)
    
Underlying this case is a perennial debate about conflicts between generally applicable, viewpoint neutral state laws and particular, idiosyncratic religious beliefs. (The Texas Religious Freedom Restoration Act countered Supreme Court decisions expanding government power over religious practices, as Charles Haynes concisely explains here.)  But what interests me most is the district's stubborn, irrational attachment to its grooming policy.  No parent should be required to appeal to federal court to secure the right to send his or her 5 year old son to school with braided hair, especially when the braid is imbued with religious meaning, (and even if it is simply an aesthetic choice.) This case is partly about religious freedom, partly an expression of gender stereotyping, and, perhaps, partly a reflection of bias against Native Americans; but it also illustrates the bureaucratic compulsion to exorcise non-conformity and instill in students blind obedience to petty authority.
   
The Circuit Court's factual account of this case is instructive: Before initiating a lawsuit, Kenney Arocha and Michelle Betenbaugh requested a religious exemption for their five year old from the district superintendent, who apparently applied the district's grooming policy with an arbitrary, inconsistent rigidity, which seems to have bordered on bigotry.  A Muslim girl obtained a head scarf exemption, but in response to an exemption request from Betenbaugh and Arocha, the superintendent demanded proof of their religious beliefs, explaining to a local newspaper:  "I've got a lot of friends that are Native Americans . . . and they all cut their hair.  We're not going to succumb to everything and just wash away our policies and procedures .. .no one is asking you to move to Needville and have these opinions invoked on you."  

To protect its "policies and procedures" (and probably its prejudices,) the District set up a series of bureaucratic roadblocks, questioning the parents' eligibility to request a religious exemption for A.A. and "require(ing) the family to complete a newly created 'exemption form,' which purported to require documentary evidence of the family's membership in 'a recognized church or religious organization whose tenets and practices conflict.' "  Eventually A.A. was suspended and his parents sued, winning a permanent injunction from a federal district court vindicating their religious rights.  The District proved a sore loser; it appealed to the 5th circuit, asserting its rule making power beyond all reason.

What compelling need generated this grooming policy?  The 5th circuit noted that it was intended  "to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority."  The Court had little trouble dismissing concern about hygiene or safety hazards allegedly posed by long hair, since girls were allowed (and probably expected) to wear it without infecting or otherwise endangering themselves or their classmates. Nor did long hair prove disruptive, as the Court observed: "The district court did find that A.A.'s hair 'sometimes falls in his eyes and his teacher has to tell him to tuck it behind his ear,' but explained that the teacher occasionally has to make the same suggestion to girls and A.A.'s presence has not interfered with the teacher's ability to teach. The District provides no argument or evidence to the contrary."                                               

With his pretexts for enforcing the grooming policy exhausted, the Superintendent acknowledged that "he did not necessarily seek to effect the goals of the grooming policy at all, but to 'try to have [A.A.'s] hair resemble the rest of the student body in Needville.'"  Fortunately the Court was un-persuaded that a desire to punish and deter "non-conforming appearance evincing resistance to school authority" was a compelling interest justifying a burden on religious belief.        

Civil liberty prevailed over an irrational, intrusive bureaucracy in this kindergarten skirmish, but in the wider world, repressive dress codes - mainly bans on burqas - are  justified in the professed interests of freedom, (as well as security, although I recall no efforts to prohibit nuns from wearing habits in order to keep us safe and free; and I doubt very much that barring a minority of Muslim women from covering their faces will effectively deter terrorism.)   France is on the verge of enacting a burqa ban, because as President Sarkozy explained, "The issue of the burqa is not a religious issue. It is a question of freedom and of women's dignity. The burqa is not a religious sign. It is a sign of the subjugation, of the submission, of women."

In other words, in order to liberate women, the state will decide what they may and may not wear.  Regardless of their concerns about burqas and the status of women in Muslim countries, generations of feminists who have fought for individual autonomy should recoil from efforts to regulate women's religious and sartorial choices, for their own good -- just as they recoiled from Justice Kennedy's effort to justify abortion bans by claiming that they benefit women emotionally: "(S)ome women come to regret their choice to abort the infant life they once created and sustained.  Severe depression and loss of self-esteem can follow," Kennedy declared in Gonzales v Carhart, (even while admitting the absence of reliable evidence supporting this assertion.)

But you don't have to be a feminist to protest burqa bans; like Iranian laws against Western haircuts, they represent the invasion of private life and usurpation of private choices by the state.  Burqa bans are no less hostile to liberty because they represent secular rather than religious articles of faith.  For an individual intent on following the dictates of her own conscience, official orthodoxies are equally repressive, whether dictated by principals, presidents, or priests.   "You won't get arrested," my mother used to say, damning with faint praise attire she disdained.  It doesn't seem so funny anymore.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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