Material in this article reproduces previously published research by the author. This research appears in: Amir Jaima, “In Defense of the Crown Act,” Philosophia 51, 1977–1992 (2023), https://doi.org/10.1007/s11406-023-00648-7.
I here offer a brief overview of the contemporary legal proceedings in Texas concerning the CROWN Act and then sketch a philosophical defense of the CROWN Act’s importance in combating racial discrimination. The CROWN Act, I contend, signifies an important step forward in antidiscrimination law because it moves beyond untenable characterizations of the traits targeted by discrimination as necessarily being immutable, which occludes grappling with forms of discrimination involving proxies for racial status and/or performative racial “tests.”
The CROWN Act in Texas and Beyond
On May 27th, 2023, Texas Governor Greg Abbott signed House Bill No. 567 (HB 567) into law. HB 567 is Texas’s version of the national legislative trend referred to as the CROWN Act, an acronym for “Creating a Respectful and Open World for Natural Hair.” Texas is the 22nd state to pass such a bill; the first was California in 2019. On the Federal level, a recent version of the CROWN Act passed in the House but failed to pass in the Senate (see HR 2116 and S 888). Accordingly, HB 567 is a commendable amendment to the Texas Labor Code, prohibiting race-based hair discrimination, or “discrimination [in schools and the workplace] on the basis of hair texture or protective hairstyles associated with race”; protective hairstyles include, but are not limited to, “braids, locks, and twists.” The law went into effect on September 1st.
Texas lawmakers were moved to introduce the CROWN Act in large part due to the negative media attention garnered by the Barbers Hill High School (BHHS) in 2020. Following a reinterpretation of the school’s student grooming policy, BHHS indefinitely suspended two Black students—DeAndre Arnold and Kaden Bradford, who happen to be cousins—until they cut their hair, alleging that their long locs violated the revised policy. At the beginning of the school year, the policy stated, in brief, that boys’ hair should be short; specifically, hair should not extend below the eyebrows, below the ear lobes, or below the top of a t-shirt collar. Up until this point, Kaden and DeAndre had complied by tying their locs up and back, a practice that was scrutinized though tolerated by the administration. Halfway through the school year, however, the administration added a crucial clause. The revised policy now stated that the hair of male students should not extend below the aforementioned limits “when let down.” The school district explained that the reinterpretation sought to clarify the grooming expectations and to prevent students from circumventing them.
Rather than cutting their hair, DeAndre and Kaden’s families elected to transfer the boys to the neighboring Sterling High School. Nevertheless, the families sued the Barbers Hill school district. While the case is still ongoing, the Court issued a preliminary injunction in favor of the families, characterizing the school’s grooming policy as racially discriminatory in violation of the Equal Protection Clause. The Court reasoned that 1) the school exhibited a pattern of disproportionately enforcing the hair-length policy against African-American students; 2) revising the policy in the middle of the school year betrayed an inexplicable procedural irregularity; and 3) the school district lacked a persuasive justification for the hair length policy in the first place. Consequently, “Although the hair length policy is facially race-neutral,” the plaintiffs have presented sufficient evidence to establish that it was “enacted with a racially discriminatory motive.”
In spite of this rather decisive legal censure, and the recent signing into law of HB 567, BHHS recently suspended another Black student, Darryl George, for similar reasons, alleging that his locs also violate the hair length policy when let down. Like the Arnold family in 2020, the George family has also filed suit, but this time the defendants are Texas Governor, Greg Abbott, and the attorney general, Ken Paxton. The plaintiffs wish to compel Abbott and Paxton to enforce the new law and prevent the school district from imposing disciplinary measures related to the grooming policy. The school district contends that the grooming policy does not violate the CROWN Act, and has asked the courts to clarify the issue.
A Philosophical Defense of the CROWN Act
The CROWN Act is an important and timely piece of legislation that represents a profound legal, political, and moral advancement in our understanding of discrimination generally, and American racism in particular.
First, the bill amends the operative definition of “race”—or more precisely, it expands the legal and political scope of racial identity—to include some mutable characteristics within the purview of protections delineated by Title VII of the Civil Rights Act of 1964. The complement of classes currently protected under Title VII are all presumed to be immutable aspects of one’s identity. Yet, while clear and coherent in principle, in practice the concept of immutability is an unstable and imprecise premise upon which to base the anti-discrimination statutes. In the words of Richard T. Ford, “academic critiques of immutability doctrine fill volumes” (1418).
Second, our inaccurate understanding of racism has yielded what Wendy D. Greene calls an “unfulfillable evidentiary standard” (1022). In clarifying the definition of race, the CROWN Act also clarifies what counts as evidence of discrimination and/or racism. As Khiara M. Bridges argues, it should facilitate the creation of “a more amenable legal landscape for those challenging employer practices under Title VII” (80).
In brief, there are, effectively, three general forms of racial discrimination. The first and most intuitive consists in the explicit denial of employment or education opportunities on the basis of one’s “racial status” as a member in a protected class. Ford explains that racial status refers to the hierarchical subtext of racial distinctions, where “Black” identity is presumed to be inferior relative to white identity, as was the case formally during the historical period of legal segregation (100). In 2023, one rarely encounters this form of bold-faced racial exclusion.
The second form of discrimination consists in the exclusion of racial characteristics that serve as credible proxies for racial status. For instance, one could surmise that a ban on cornrows is racially prejudicial, but only if one could prove that such a policy was an intentional ploy to exclude Black people indirectly. Providing evidence of such an intent, however, is obviously quite difficult.
The third and most insidious form of discrimination consists in the exclusion of the presumed, inferior associations of “Blackness,” but not Black individuals per se, given Title VII protections. In other words, imagine a predominantly white, professional space where Black individuals are included in principle but where they are asked—compelled even—to hide, mitigate, or counteract their “performances of Blackness,” so to speak. Glenn Bracey and Wendy Moore characterize practices of this sort as “race tests,” which are “performances by white individuals and groups, in the presence of incoming people of color…to preclude or precondition people of color’s participation in predominantly white spaces” (284). Race tests evaluate an individual’s willingness to dissociate themselves from common, though often stereotypical, presentations of Blackness under facially neutral guises such as professionalism or uniformity. For instance, a potential employee may feel inclined to modify their speech patterns. Or they may modulate the volume and pitch of their voice. Or, most germane to the CROWN Act, they may adopt a hairstyle that mimics traditional modes of styling straight hair.
The chief line of reasoning behind the CROWN Act, then, can be explained in terms of taking seriously the second and third forms of racial discrimination outlined here, rather than viewing racial discrimination so narrowly that it could only take the first form. The CROWN Act is grounded in the acknowledgment that racial discrimination does not only occur according to explicit racial policies; it also operates according to “race tests” and facially neutral policies that disproportionally impact members of a protected class.
Conclusion
The preliminary injunction in Arnold v. Barbers Hill Independent School District and the recent passage of HB 567 point toward enforcement of antidiscrimination law that more accurately reflects the reality of racial discrimination. While many forms of racial discrimination past and present have involved claims that racial traits are immutable, in practice discrimination against even immutable traits can be targeted at purportedly mutable traits in order to avoid legal scrutiny. Proponents have advocated the CROWN Act in order to address the shortcomings in the way that U.S. legislation and jurisprudence have lagged behind sociological and philosophical analyses of the phenomenon of racial discrimination. If Texas elects to take seriously this new direction in antidiscrimination law, or if the state is judicially compelled to do so, this will signify a very important step forward in our understanding and enforcement of antidiscrimination law.
Amir Jaima
Born in the archipelago nation of Antigua and Barbuda, Amir Jaima is anAssistant Professor in the Department of Philosophy at Texas A&M University(TAMU). He is an alumnus of Swarthmore College. He completed his doctoral studies in Philosophy at SUNY Stony Brook in 2014. His dissertation examined the relationship between philosophy and literature. His current research is on Black Aesthetics, which sits at the convergence of Aesthetics and Africana Philosophy. Additionally, he is interested in Gender/Genre Theory (specifically Black Male Studies) and Continental Philosophy. Finally, Amir is a creative writer and has a number of working “literary” projects that both inform and are inspired by his philosophical work.
