Texas high schooler fights punishment over hair length at Fifth Circuit

(CN) — Darryl George spent most of his junior year at his Texas high school in either in-school suspension or an off-site disciplinary program over the length of his hair — a punishment he took on Wednesday to a Fifth Circuit panel that also grilled his attorneys on if artificial intelligence was used in their briefs.

A federal judge approved the legality of the Barbers Hill school district’s male-specific hair length limit in 2025, but George says the school district hadn’t sufficiently shown that the gender-specific hair length standard was necessary.

Barbers Hill Independent School District, located roughly 30 miles east of Houston, prohibits its male students, but not female students, from having hair that extends below the eyebrows, ear lobes or top of a t-shirt collar.

George, a Black male student who wore his hair in locks tied on top of his head, was found to be in violation of the policy because his hair exceeded the length limit when let down.

Jonathan Brush, an attorney representing Barbers Hill, said many employers have hair-length restrictions for male employees, including the U.S. military, and so it’s important for the district to prepare students for that.

“Unlike female students, all male students are required to register for the Selective Service on their 18th birthday,” Brush said. “So, there’s a potential compulsion to serve. The Selective Service statute draws that distinction on who may serve, and the Supreme Court has held that it did not violate the equal protection clause for the Selective Service to have differential requirements, so that’s a very specific career preparation component that male students may face in the district’s judgment.”

Allie Booker, an attorney representing George, said Barbers Hill had presented only “arbitrary” evidence to justify the policy.

“When you advance the career readiness, there are thousands of jobs that people can have, and the only people that you discuss, the only jobs you discuss primarily were maybe like OSHA jobs, and they discussed military, but to me, that’s a very small pool of the type of jobs, so I believe that that was arbitrary,” Booker said.

U.S. District Judge Jeff Brown, a Donald Trump appointee, had ruled the hair-length standard is not unconstitutional gender discrimination.

He found that the district had shown the policy fulfilled important government interests, namely “upholding community expectations,” “promoting student success and discipline” and “preparing students for the work force.”

Although Brown found the district’s policy met a heightened standard of scrutiny applicable to gender discrimination claims, Brush argued the policy should not be subject to heightened scrutiny at all.

He pointed to the Fifth Circuit’s 1972 ruling in Karr v. Schmidt that a school’s hair length limit for male students was not unconstitutional. The court in that case relied on rational basis review, a more lenient level of scrutiny.

While that ruling predated the U.S. Supreme Court’s ruling in Craig v. Boren that sex-based differential treatment by the government is subject to heightened scrutiny, Brush said the Fifth Circuit has continued to rely on Karr even after Craig v. Boren.

“This court recognized in Karr that in the school context — and in constitutional litigation context is always informative and often dispositive — that the school districts, generally speaking, are entitled to great deference for setting the rules of conduct and the rules of grooming in schools,” Brush said.

Brush argued that Barbers Hill’s high ratings from the Texas Education Agency show the efficacy of its policies, but U.S. Circuit Judge Irma Carrillo Ramirez questioned whether the district can tie its achievements directly to its hair length standard.

“They can coexist without causation, can’t they? I mean, it could be greater parental involvement,” the Joe Biden appointee said. “Just because the two exist side by side doesn’t necessarily mean that one causes the other.”

U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, and U.S. Circuit Judge Don Willett, a Trump appointee, joined Ramirez on the panel.

In addition to gender discrimination, George also argues the district’s hair length limit violates the Texas CROWN Act, a state law that prohibits discrimination in education, employment or housing based on a person’s hair texture or for having a “protective hairstyle commonly or historically associated with race,” such as braids, locks or twists.

While the law doesn’t specifically mention hair length, Joseph Plumbar, another attorney representing George, argued that long hair is integral to the style of locks.

“My hair can’t go in dreadlocks right now. I have short hair. I can’t braid my hair. In order to do that, you have to have length,” Plumbar said. “So we believe that that is something that maybe not specifically was discussed in the CROWN Act, but was very well intended to be protected.”

At the end of the hearing, the judges called out what appeared to be non-existent quotes from court cases in their brief.

“In one of the cases the quotation is perhaps close enough that it could reasonably have been a benign error, but in the others the quotations appear to be entirely made up, and there are passages that appear in quotation marks that are attributed to judicial decisions, but I and my staff have been unable to locate those words in the cited cases,” Willett said.

Both Plumbar and Booker denied having used generative AI to draft the brief, but they acknowledged that there were quotation marks around what they said were meant to be paraphrases.

The judges took the case under submission, and they did not give an indication of when it might be decided.