Remember when that school took a black Sharpie and colored in a black student’s hair because they decided they didn’t like his fade? Sadly, we probably have to be more specific since this is the kind of racist bullshit happens in this country every day. Remember when that school around Houston took a black Sharpie and colored in a black student’s hair because they decided they didn’t like his fade? Well, the court ruled on the Motion to Dismiss this week and it was mostly, though not entirely, bad news for the fabric of the nation.
Sometimes damning stories like this one die a slow death when the sluggish wheels of the justice system drag out long past the national attention span. The 24-hour news cycle wreaks enough havoc with new injustices piling up every day and when an election and plague get thrown into the mix, it’s easy to lose track of a story.
Frankly, this one only serendipitously returned to my radar. Magistrate Judge Andrew Edison joined the ranks of judges I keep tabs on last week with an all-timer of a benchslap. This week, he’s got a much more sobering opinion. It’s a tragic account of where the legal system breaks down at the intersection of race and rights and one where Judge Edison managed to express his dismay for the defendants while still finding his hands tied by pleadings and precedent.
Recounting the facts of the case, Judge Edison explains that school officials confronted a black seventh-grader with a thin part shaved into his haircut and claimed that they felt this violated the school dress code banning “carvings, mohawks, spikes, etc.” At that point, after threatening the child with suspension, the school officials took a toxic permanent marker and began coloring in his part despite warnings that the product should not be used on skin. All of this was done without consulting the parents and the child alleges the officials were laughing as they did it. The defendants dispute that but Judge Edison points out that all their denials miss the most important point:
What happened next defies all logic, commonsense, and, in my estimation, common decency. [I recognize that Defendants dispute many of J.T.’s factual allegations. However, there is no dispute that J.T.’s scalp was in fact colored with a Sharpie. To the extent that I express any criticism in this opinion, it is related to this unfortunate, undisputed fact.]
At the end of the day, Judge Edison cites Justice Scalia who once said, “he wished all federal judges were given a stamp that read ‘stupid but constitutional.’” The assault claim against the individual administrators survived the Motion to Dismiss, but the various constitutional claims didn’t. The Due Process claim failed because the plaintiff has a state law remedy in the form of his assault claim. The Equal Protection and Civil Rights Act claims seemingly failed due to how they were pleaded, forcing the case into “stupid but constitutional” territory.
But to paraphrase Dean Wormer, “stupid but constitutional is no way to go through life.”
Because the plaintiffs were put between a rock and a hard place here.
The Amended Complaint frames the Equal Protection claim this way:
“Defendant[s] acted arbitrarily in their actions against [him] and treated him differently than those with other hairstyles and similarly situated white students thereby violating [his] right to the equal protection of the laws.”
This is almost certainly true, but there’s no way of knowing if the school officials have acted differently than they treat a white kid violating the policy and that’s critical to make that allegation work as written.
We all know what the plaintiffs mean though. Sure, the individual defendants may not have been denying the child “equal protection” at the moment they decided to color in his fade. But the school almost certainly did when it decided on a code that makes a popular African-American hair style “extreme” and subject to punishment. Does the school expect a lot of white kids to come in with Mohawks and start humming The Ramones in 2020? Banning “carvings, mohawks, spikes, etc.” is not a race-neutral policy. Judge Edison almost seems to nod to that at the top of the opinion going out of his way to explain that the style “is extremely common among African Americans” and citing a popular recent children’s book on the subject but he just couldn’t push this over the hill of the particular pleading. We know hairstyle policies are constitutionally problematic with federal agencies and the courts on both sides of the question.
The Catch-22 breakdown here is that, probably worried that the Fifth Circuit wouldn’t embrace hair discrimination claims, the plaintiffs tried to reach the issue a different way — but that way didn’t actually make sense. And this is pretty much always the way: plaintiffs are cut off from challenging the policy by precedent and cut off from challenging the practice by the fact that the policy is specifically written to ensure there’s never a similarly situated white student. It puts some of the most pernicious acts of racial discrimination permanently locked in the “stupid but constitutional” category.
At least the assault claims against the individual school officials survives another day. Except, as addressed in a footnote, Texas doesn’t recognize claims like these against school districts and there is precedent “[H]olding that claims based on conduct within the scope of employment is not a suit against the employee; it is in all but name only, a suit against the government unit.” This wasn’t part of the Motion to Dismiss but you can all but guarantee there will come a day soon where they get these tossed on that argument and then… well, then where is the state law remedy needed to cure the Due Process claim?
Catch-22 all over again.
(Read the full opinion on the next page…)
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.