Sunday, July 18, 2010

Fifth Circuit Upholds Boy's Right to Wear Braids

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Some good news for you today.  Recently the 5th Circuit Court of Appeals in Texas upheld a decision protecting a Lipan Apache boy's right to wear his hair long in school.  This dispute called up eerie parallels to the old days of Indian Boarding schools, when officials forcibly cut American Indian children's hair as part of the "civilization process".  The motto at the time was "Kill the Indian, save the man".  The picture above is a famous before and after shot of a student at the Carlyle Indian School.  Many survivors of Indian Boarding Schools have described the experience of having their hair, which they believed to be an extension of themselves and a direct tie to their ancestors, lopped off as a life changing traumatic event.

The contemporary dispute in Texas began when the boy was in Kindergarten.  His elementary school has a strict dress codes that prohibits boys from wearing their hair below their ears.  The child, known in court documents as A.A. for religious purposes has never cut his hair.  His mother, anticipating trouble with the dress code, wrote to the school and the school board on multiple occasions asking if her child's hair would pose a problem.  After several non-replies, she finally was notified that her child would have to cut his hair.  The boy's parents refused and sent him to school.  An exemption was issued allowing the boy to attend if he wore his hair in a bun or down the back of his shirt in one long braid. The parents contended this still infringed on the boys religious rights.  They invoked the American Indian Religious Freedom Act of 1996 in their appeals to the school board.  The boy was placed in in-school suspension for the duration of the struggle.  The ACLU brought the case to the courts.

Lower courts stated that indeed the rule infringed on the boy's religious freedom, and the Fifth Circuit Court of Appeals upheld the ruling.  The case hinged on proving two basic things:  1. That the boy's long hair in fact reflected a true religious belief, and 2. That the school dress code went against the Religious Freedom Restoration Act of 1993 (Texas law). 

Proving that the boy's long hair was in fact a true religious belief involved answering questions about the father's beliefs and practices (the mother is non-Native).  The defense argued that the father was not an official member of an organized religious group, because he was not yet officially enrolled in the State Recognized Lipan Apache Tribe (his enrollment papers were in process).  The court's decision stated the following regarding this accusation:

 When appellees filed this suit, Arocha’s application for membership in the tribe was
still pending. Both the appellees’ brief and the amicus curiae brief of the Lipan Apache Tribe
indicate that application has now been accepted. Though the record on appeal has not been
updated to reflect this development, we take the tribe at its word as to administrative
matters—such as tribal membership—that are within its unilateral discretion. And, in any
event, tribe membership or lack thereof does not materially affect our analysis. See Frazee v.
Illinois Dept. of Employment Sec., 489 U.S. 829, 833 (1989) (explaining that “[u]ndoubtedly,
membership in an organized religious denomination . . . would simplify the problem of
identifying sincerely held religious beliefs,” but that a belief is no less sincere just because the
individual is not “responding to the commands of a particular religious organization”).

 Mr. Arocha also stated that he had worn his hair long as a child according to his family's religious beliefs, and had been forced to cut his hair when he entered school.  He has worn his hair long again for 10 years, even risking dismissal from a job.

In regard to the second tenet, proving that the school's dress code violated the Religious Freedom Restoration Act (RFRA), the court's ruling states:

RFRA expressly adopted the compelling interest test as set 14
forth in a pair of Supreme Court cases, Sherbert v. Verner 15 16 and Wisconsin v.
Yoder. That test “prohibits ‘[g]overnment’ from ‘substantially burden[ing]’ a 17
person’s exercise of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden ‘(1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.’”

That legitimacy accepts that the wearing of long hair and
unconventional dress by most boys may be seen as an act of defiance—and a
rejection of authority. Well and good, but A.A.’s long hair is conceded to be an
exercise, not of rebellion, but of adherence to religious belief. That adherence
does not thwart the school’s pedagogical mission, a teacher’s dominion over her
classroom, or a principal’s ability to maintain an environment conducive to
learning. As the District has conceded, it is an acknowledgment of piety to
religion and fealty to an authority superior to individual whim. The District’s
regulation aimed at this acknowledgment—in the name of authority and
discipline—is not a compelling interest.

Way to go Austin Texas!  You can read the full ruling and order here.

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