The so-called “CROWN Act” is effective on September 13, 2020. The new statute makes it racial discrimination to take an adverse action against a student or employee because of their “hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race.” C.R.S. 22-30.5-104(3)(b); C.R.S. 24-34-301(5.3) & (5.8). Under the Act, a “protective hairstyle” includes “such hairstyles as braids, locs, twists, tight coils or curl, cornrows, Bantu knots, afros, and headwraps.” Id. -104(3)(b)(I) & -301(5.3).
The statute classifies according to race, and that raises thorny constitutional issues. Here is what I mean. Say a school has a facially neutral dress code that addresses hair length. The statute would require a school to apply the code differently depending on a student’s race. For example, assume two male students have identical hair length. One is Native American and one is Caucasian. As I read the statute, it requires the school to allow the Native American to wear his hair at that length but not the Caucasian. Race-based classifications such as this are subject to a constitutional analysis called “strict scrutiny.” That does not mean the classification is necessarily unconstitutional, and some race-based classifications have survived strict scrutiny.
I raise the issue because this statute may put schools between a rock and a hard place. For example, if the school follows the statute in the situation I described above, it leaves itself open to a lawsuit for racial discrimination. But if it does not follow the statute, it leaves itself open to an enforcement action under the statute. I urge all schools to consult with counsel if any case under the statute arises.