Arnold v. Barbers Hill Indep. Sch. Dist.

Decision Date17 August 2020
Docket NumberCIVIL ACTION NO. 4:20-CV-1802
Citation479 F.Supp.3d 511
Parties Everett De'Andre ARNOLD, et al., Plaintiffs, v. BARBERS HILL INDEPENDENT SCHOOL DISTRICT, et al., Defendants.
CourtU.S. District Court — Southern District of Texas

Janai S. Nelson, Patricia Okonta, NAACP Legal Defense and Educational Fund, Inc., Stephen Baldini, Akin Gump Strauss et al., New York, NY, Mahogane Reed, Michaele N. Turnage Young, NAACP Legal Defense and Educational Fund, Inc., Washington, DC, Michael Francis Reeder, II, Cadwell Clonts & Reeder LLP, Roxanne Tizravesh, Nicholas Edward Petree, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, for Plaintiffs.

Sara Hardner Leon, Sara Leon and Associates LLC, Austin, TX, Thomas Phillip Brandt, Caroline Sileo, Christopher T. Brandt, Laura Dahl O'Leary, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, Hans Peter Graff, Sarah Leon & Assoc, Houston, TX, for Defendants Barbers Hill Independent School District, Barbers Hill Independent School District's Board of Trustees, George Barrera, Fred Skinner, Eric Davis, Clint Pipes, Greg Poole, Sandra Duree, Mandy Malone, Rick Kana, Ryan Rodriguez, Doug Anderson, Kirven Tillis.

Thomas Phillip Brandt, Caroline Sileo, Christopher T. Brandt, Laura Dahl O'Leary, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin PC, Dallas, TX, Hans Peter Graff, Sarah Leon & Assoc, Houston, TX, for Defendants Cynthia Erwin, Becky Tice, Benny May.

MEMORANDUM OPINION AND ORDER

GEORGE C. HANKS, JR., UNITED STATES DISTRICT JUDGE

Pending before the Court is a motion for a preliminary injunction filed by Plaintiff K.B. The Court held an evidentiary hearing on the motion over the three days spanning July 22, 2020 through July 24, 2020. (Dkt. 77–Dkt. 79) After careful consideration of the parties’ written submissions, the extensive evidentiary record developed at the hearing, and the other filings in the case, K.B.’s motion (Dkt. 44) is GRANTED .

I. FACTUAL AND PROCEDURAL BACKGROUND

K.B. is preparing to enter his junior year of high school and has enrolled at Barbers Hill High School in the Barbers Hill Independent School District ("BHISD"). BHISD has an excellent reputation in the Texas educational community and Barbers Hill High School is the home of the award-winning Soaring Eagle Marching Band. K.B. has attended BHISD schools since the first grade, excepting part of his sophomore year of high school, when the events giving rise to this lawsuit forced him to transfer from Barbers Hill High School to Sterling High School in the Goose Creek Consolidated Independent School District. (Dkt. 44-4 at pp. 3, 7) K.B. has testified that, while he was enrolled at Sterling High School, he missed Barbers Hill High School, where he was an A/B student and played trombone in the marching band, and wished to return to complete his education there. (Dkt. 44-4 at pp. 7–8)

The dispute that forced K.B.’s transfer to Sterling and ultimately led to this lawsuit revolves around K.B.’s hair. K.B. is African-American and wears his hair in locs1 "because it is part of [his] Black culture and heritage" and because he wants to emulate "[his] loved ones, including extended family members with West Indian roots, [who] have locs." (Dkt. 44-4 at p. 3) K.B. formed his natural hair into locs in the seventh grade and has not cut them since. (Dkt. 44-4 at p. 3; Transcript of preliminary injunction hearing, day one, pages 56–57) K.B. testified that "[l]ocs are meant to grow long" and that "[y]ou don't cut locs" because "they would unravel," undoing "all the hair process and growth" that the wearer spends years cultivating. (Dkt. 44-4 at p. 7; Transcript of preliminary injunction hearing, day one, pages 56–57)

Professor D. Wendy Greene, who testified as an expert for K.B., supported K.B.’s testimony with persuasive historical and sociological evidence showing that "hair texture, like one's skin color, has long served as a racial marker." (Dkt. 44-2 at p. 11) Professor Greene testified that locs are a long-recognized expression both of African-American identity and West Indian identity. (Dkt. 44-2 at pp. 4–8) According to Professor Greene, "K.B.’s claim that his natural hairstyle is an expression of his racial identity is routinely asserted by African Americans today and is entirely consistent with African descendants’ culture that has been widely understood in America since the era of slavery." (Dkt. 44-2 at p. 4) Professor Greene also clarified that "[l]ocs are a symbol of reverence to West Indian ancestors" and that, furthermore, "West Indian cultural traditions prohibit cutting or trimming of locs." (Dkt. 44-2 at p. 6)

When K.B. began his freshman year at Barbers Hill High School, BHISD had a hair-length policy, applicable only to male students, mandating that:

[b]oys’ hair will not extend, at any time, below the eyebrows, below the ear lobes, or below the top of a t-shirt collar. Corn rows and/or dread locks are permitted if they meet the aforementioned lengths. Dkt. 44-4 at p. 3.

To comply with this hair-length requirement without having to cut his locs, K.B. wore a "thin headband and t[ied his] locs up and back, so they did not extend past [his] earlobes, neck, or eyebrows." (Dkt. 44-4 at p. 3) K.B. testified that his hair was scrutinized frequently and extensively by BHISD officials when he was a freshman. During that school year, Barbers Hill High School Assistant Principal Ryan Rodriguez "removed [K.B.] from class at least once per week to ensure [his] locs complied with the hair policy." (Dkt. 44-4 at p. 4) K.B. testified that the intrusive monitoring continued into the fall semester of his sophomore year, when he "was regularly called out of class" so that school administrators could gauge his compliance with the hair-length policy. (Dkt. 44-4 at p. 4) K.B. "received verbal warnings ... regarding [his] hair length" but was allowed to return to class because he "always complied with the hair policy." (Transcript of preliminary injunction hearing, day one, pages 60–62; Dkt. 44-4 at p. 4)

But then BHISD changed its hair-length policy midway through K.B.’s sophomore year, in December of 2019. The new policy—still applicable only to male students—mandated that:

[m]ale students’ hair will not extend, at any time, below the eyebrows, or below the ear lobes. Male students’ hair must not extend below the top of a t-shirt collar or be gathered or worn in a style that would allow the hair to extend below the top of a t-shirt collar, below the eyebrows, or below the ear lobes when let down.
Dkt. 44-8 at p. 56.

The addition of the "when let down" language prevented K.B. from complying with the hair-length policy by tying his locs up and required K.B. to cut his locs to avoid punishment. K.B. did not cut his locs, and was punished with in-school suspension, which he described as being "what [he would] imagine prison to be like." (Transcript of preliminary injunction hearing, day one, pages 65–69) While in in-school suspension, students were completely isolated; they were not allowed to leave the room, talk to any other students, or participate in extracurricular activities. (Dkt. 44-4 at pp. 6–7; Transcript of preliminary injunction hearing, day one, pages 65–69) Students in in-school suspension did not receive instruction from certified teachers and "had to figure out [their] schoolwork and homework on [their] own." (Dkt. 44-4 at p. 7) Eventually, K.B. transferred to Sterling High School to finish out his sophomore year so that he could receive an education and continue to grow his locs without suffering further punishment. (Dkt. 44-4 at p. 7)

BHISD defends the mid-year hair policy change that resulted in K.B.’s transfer by asserting that it has a "legally acceptable right to still have gender-specific hair expectations" and to prevent students from "circumventing" them. (Transcript of preliminary injunction hearing, day two, pages 555–58) Dr. Greg Poole ("Dr. Poole"), the Superintendent of BHISD, testified that the addition of the "when let down" language to the hair-length policy was needed to give "clarity that circumventing and manipulating the dress code policy is not permitted." (Transcript of preliminary injunction hearing, day two, page 531) Dr. Poole also used the term "circumvent" when asked specifically about K.B.’s method of complying with the previous iteration of the hair-length policy by tying his locs up, saying of K.B., "He's a great kid. I know that. But my impression he's circumventing the process to get by the dress code." (Transcript of preliminary injunction hearing, day two, page 554) Pressed on the meaning of these statements, Dr. Poole explained that he and the BHISD Board of Trustees aim to make BHISD's students "clean-cut" and "presentable." (Transcript of preliminary injunction hearing, day two, pages 555–58) Yet Dr. Poole also conceded that K.B. looked "clean-cut" and "very presentable" with his locs tied up. (Transcript of preliminary injunction hearing, day two, page 556) Pressed further, Dr. Poole ultimately simply asserted that, to his knowledge, BHISD "ha[s] a legal right to have gender-specific hair dress expectations." (Transcript of preliminary injunction hearing, day two, page 558)

K.B. and his co-plaintiffs2 subsequently filed this suit against BHISD, alleging the following causes of action: (1) intentional race discrimination under the Fourteenth Amendment's Equal Protection Clause; (2) intentional race discrimination under Title VI of the Civil Rights Act of 1964; (3) sex discrimination under the Fourteenth Amendment's Equal Protection Clause; (4) sex discrimination under Title IX; (5) violation of his First Amendment right to free speech; (6) retaliation in violation of the First Amendment; (7) retaliation in violation of Title VI; (8) retaliation in violation of Title IX; (9) intentional race discrimination in violation of Section 106.001 of the Texas Civil Practice and Remedies Code ; and (10) sex discrimination in...

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