Board of Trustees of Bastrop Independent School Dist. v. Toungate

Citation958 S.W.2d 365
Decision Date13 February 1998
Docket NumberNo. 96-0690,96-0690
Parties123 Ed. Law Rep. 392, 41 Tex. Sup. Ct. J. 48 BOARD OF TRUSTEES OF BASTROP INDEPENDENT SCHOOL DISTRICT, Petitioner, v. September M. TOUNGATE, a/n/f of Zachariah Toungate, a Minor, Respondent.
CourtSupreme Court of Texas

Eric W. Schulze, Paul W. Hunn, Austin, for Petitioner.

Charles Beall, Paul E. Knisely, Austin, for Respondent.

OWEN, Justice, delivered the opinion of the Court in which PHILLIPS, Chief Justice, GONZALEZ, HECHT and ABBOTT, Justices join.

The issue in this case is whether a hair-length regulation that applies to male students at a public elementary school but not to female students violates TEX. CIV. PRAC. & REM.CODE § 106.001(a). We conclude that it does not and accordingly reverse the judgment of the court of appeals and render judgment for Bastrop Independent School District.


Eight year old Zachariah Toungate was a third grade student at Mina Elementary in the Bastrop Independent School District. At the beginning of the school year, school officials observed that Zachariah had a ponytail, popularly known as a rat tail, that extended five inches below the bottom of his collar in violation of a provision of the grooming code that applied to all male students but not to females. The principal of the school advised September Toungate, Zachariah's mother, that her son's hair must be cut. She responded that she would not "force" Zachariah to cut his hair but requested that he be permitted to pin the ponytail up or to tuck it inside his shirt. The school refused to accept either of those alternatives and suspended Zachariah for three days. The Toungates remained steadfast in their refusal to comply with the hair-length provisions of the dress code.

At the end of the three-day suspension, Zachariah was allowed to return to school but was subjected to "in-school suspension," which meant that he was essentially isolated from his classmates. His former teacher prepared his lesson plans, but he was taught by substitute teachers. Except for a few days when other students were also subject to in-school suspension, Zachariah was the sole pupil. His classroom was relatively small, 12 feet by 15 feet, and its windows were covered with heavy paper. Zachariah was not permitted to have lunch with the other children, he took recess alone, and he was not allowed to participate in choral activities or the Christmas program, although he was permitted to attend and observe the latter event. During the in-school suspension, Zachariah's academic performance improved, but after four months of segregation from his classmates, September Toungate withdrew her son from Mina Elementary on the advice of a psychologist and pursued home schooling.

These events prompted September Toungate to file suit against BISD as next friend of Zachariah. The trial court granted summary judgment in favor of BISD. That judgment was reversed in part on appeal, Toungate v. Bastrop Independent School District, 842 S.W.2d 823 (Tex.App.--Austin 1992, no writ), and neither party sought review in this Court. On remand, a jury trial ensued, special issues were submitted, and the jury answered all issues favorably to BISD. The trial court at first rendered a take-nothing judgment against Toungate, but later modified that judgment to instead grant relief to Toungate. In the modified judgment, the trial court held that BISD had violated the Texas Equal Rights Amendment, TEX. CONST. art. I, § 3a, and had violated TEX. CIV. PRAC. & REM.CODE § 106.001(a)(4)-(6). BISD was permanently enjoined from enforcing the hairlength regulation, and Toungate was awarded attorney's fees.

BISD appealed. The court of appeals affirmed the judgment on the basis of the statutory claim but held that the constitutional claim was foreclosed by this Court's decision in Barber v. Colorado Independent School District, 901 S.W.2d 447 (Tex.1995). We granted BISD's application for writ of error.


Before we proceed to the more substantive issues in this case, we briefly address the contention of BISD that the take-nothing judgment that was at first rendered by the trial court is the only valid judgment. BISD argues that the trial court did not timely render the subsequent modified judgment and therefore that it is a nullity. The question arises because the trial court signed the modified judgment when it had plenary power to do so but then waited 31 days to notify the parties, and the modified judgment was not filed until 38 days after it had been signed. BISD asserts that once the trial court signed the modified judgment, it had only 30 days in which to accomplish rendition of that judgment which, it argues, included notification of the parties and filing.

The initial judgment, which was the take-nothing judgment against Toungate, was rendered on November 29, 1994. Toungate filed a timely motion to modify or reform the judgment, and the trial court signed the modified judgment in favor of Toungate on January 10, 1995, well within its plenary power. See TEX.R. CIV. P. 329b. Upon signing the modified judgment, the trial court then had plenary power to set aside or to further modify or reform that judgment within 30 days, absent another motion extending the time periods. See TEX.R. CIV. P. 329b(h), 329b(d). BISD cites TEX.R. CIV. P. 300 and argues that rendition did not occur within the 30-day plenary period after the modified judgment was signed.

Rule 300 does not bear on the controversy at hand. It provides only that judgment shall be rendered on a special verdict or findings of fact by the trial court unless that verdict or the findings are set aside or a new trial is granted. TEX.R. CIV. P. 300. The governing rule is TEX.R. CIV. P. 306a(1):

The date of [sic] judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents that these rules authorize a party to file within such periods including, but not limited to, motions for new trial, motions to modify judgment, motions to reinstate a case dismissed for want of prosecution, motions to vacate judgment and requests for findings of fact and conclusions of law; but this rule shall not determine what constitutes rendition of a judgment or order for any other purpose.

TEX.R. CIV. P. 306a(1).

Accordingly, it is the signing of the modified judgment that determines whether the trial court acted within its plenary power. The modified judgment in this case was rendered when signed on January 10, 1995. Under TEX.R. CIV. P. 306a(4), BISD's right to appeal was still protected even though the parties did not receive timely notice of the judgment. The appellate timetable did not start to run until BISD was notified of the judgment on February 10. We note that the trial court should have submitted the modified judgment to the clerk immediately upon signing it to avoid the burden of a notification hearing. See TEX.R. CIV. P. 306a(3),(4).

We turn now to the merits of this hair-length dispute, which has led to extended proceedings in the trial court and two appeals.


The grooming code provision that gave rise to this controversy provided:

Boys' hair must meet the following guidelines: The rear length must be no longer than to the bottom of a regular shirt collar. On the sides, the ear lobe must be visible. In the front, the length cannot be longer than the top of the eyebrows.

We articulated the proposition in Barber that constitutional challenges to hair-length policies adopted by elementary and secondary schools "do not manifest such an affront to [a student's] constitutional rights as to merit our intervention." 901 S.W.2d at 450. We essentially deemed constitutional challenges to hair-length regulations to be nonjusticiable and abstained from injecting this and other courts into the fray, although we strongly hinted that there was no violation of constitutional rights. Id.

We are now faced with construing a statute that relates to, but stands independent of, the Equal Rights Amendment to the Texas Constitution, TEX. CONST. art. I, § 3a. Our decision in Barber does not resolve the question of statutory construction. The statute is distinct from the ERA and must be applied accordingly, unless it runs afoul of the Constitutions of the United States or of this State. There is no claim in this case that section 106.001, as opposed to the school's grooming code, violates any provision of our state or federal constitutions, and accordingly, the statute should be given full effect. However, it is abundantly clear in examining the history of TEX. CIV. PRAC. & REM.CODE § 106.001, and the wealth of decisions from other jurisdictions construing similar enactments, that this statute was never intended to prohibit the adoption and enforcement of grooming standards by schools.


The statute on which Toungate relies provides in pertinent part:

§ 106.001. Prohibited Acts

(a) An officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a person's race, religion, color, sex, or national origin:

* * *

(4) refuse to permit the person to participate in a program owned, operated, or managed by or on behalf of the state or a political subdivision of the state;

(5) refuse to grant a benefit to the person;

(6) impose an unreasonable burden on the person.

TEX. CIV. PRAC. & REM.CODE § 106.001.

The original version of section 106.001 was enacted in 1967 as TEX.REV.CIV. STAT. art. 6252-16(1)(a) and did not include gender among the prohibited bases of discrimination. See Act of April 18, 1967, 60th Leg., R.S., ch. 72, § 1, 1967 Tex. Gen. Laws 138. The word "sex" was added to "race, religion, color, or national...

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