BOARD OF TRUSTEES OF BASTROP INDEPENDENT SCHOOL DISTRICT, Petitioner, v. September M. TOUNGATE, a/n/f of Zachariah Toungate, a Minor, Respondent, 958 S.W.2d 365

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. I 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-sehool suspension, Zachariah was the sole pupil.

H:is 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 Toun-gate 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 agains t 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.

II 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. Toun-gate 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 TexR. Crv.

P. 306a(l): 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. Crv. P. 306a(l). 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. Ill 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 non-justiciable 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. Crv. 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. A 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. Crv. Prac. & Rem.Code § 106.001. The original version of

section 106.001 was enacted in 1967 as Tex.Rev.Civ. Stat. art. 6252—16(l)(

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 origin” in 1971 during the same session in which the Texas Legislature voted to place the Equal Rights Amendment on the ballot of the next election. Thus,

article 6252-16 would have been effective even if the ERA had not passed, and it read as follows after its amendment in 1971:

Section 1. (

a) No officer or employee of the state or of a political subdivision of the state, when acting or purporting to act in his official capacity, may: (1) refuse to employ a person because of the person’s race, religion, color, sex, or national origin; (2) discharge a person from employment because of the person’s race, religion, col- or, sex, or national origin; (3) refuse to issue a license, permit, or certificate to a person because of the person’s race, religion, color, sex, or national origin; (4) revoke or suspend the license, permit or certificate of a person because of the person’s race, religion, color, sex, or national origin; (5) refuse to permit a person to use facilities open to the public and owned, operated, or managed by or on behalf of the state or a political subdivision of the state, because of the person’s race, religion, color, sex, dr national origin; (6) refuse to permit a person to participate in a program owned, operated, or managed by or on behalf of the state or a political subdivision of the state, because of the person’s race, religion, color, sex, or national origin; (7) refuse to grant a benefit to, or impose an unreasonable burden upon, a person because of the person’s race, religion, color, sex, or national origin; (8) refuse to let a bid to a person because of the person’s race, religion, color, sex, or national origin.

Act of June 15,1971, 62nd Leg., R.S., ch. 989, § 1,1971 Tex. Gen. Laws 2994,2995. The foregoing statute, which was the predecessor of Tex Civ. PRAC. & Rem.Code § 106.001, was amended again in 1988, and those amendments give significant insight into the meaning of the phrase “because of ... sex.” The 1983 amendments reveal that a part of what is now the Human Rights Act, Tex. Lab.Code §§ 21.001-306, which was enacted in the wake of Title VII, 42 U.S.C. §§ 2000e to 2000e-17, was taken directly from former

article 6252-16, including the words “because of ... sex.” Human Rights Act, 68th Leg., R.S., eh. 7, §§ 5.01(l)-(2), 10.02, 1983 Tex. Gen. Laws 37, 45, 56 (formerly Tex.Rev.Civ. Stat. art. 5221k, §§ 1.01-10.01, 10.04-10.05). Subsections 1(

a) and (

b) of

article 6252-16, quoted above, regarding hiring and firing “because of ... sex” or other factors, were moved into the Human Rights Act, and the remaining subsections were renumbered. Id. At the time of this legislation, there were numerous state and federal decisions, dating back more than a decade, that had construed the phrase “because of sex” in statutes virtually identical to the Texas Human Rights Act. With few exceptions, those decisions had held that “because of sex” does not prohibit the imposition of grooming or dress codes that differentiate between males and females. See infra

Part III.C. The Legislature undoubtedly was aware of this precedent when it amended former

article 6252-16 and enacted what is now Tex. Lab.Code § 21.051. If the Legislature had intended “because of sex” to encompass grooming or dress regulations, it would have said so in light of the overwhelming weight of authority to the contrary. It did not. The 1983 version of the Human Rights Act provided that the phrase “ ‘because of sex’ ... includes but is not limited to discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions.” Human Rights Act, 68th Leg., 1st C.S., ch. 7, § 1.04(c), 1983 Tex. Gen. Laws 37,38.

That definition was essentially unchanged when the Act was recodified in the Texas Labor Code. See Tex. Lab.Code § 21.106. There was and is no mention of grooming or dress codes. Thus Tex. Civ. PhaC. & Rem.Code § 106.001 and Tex. Lab.Code § 21.051 have a common origin. Both statutes contain virtually the same phrase: “because of a person’s race, religion, color, sex, or national origin.” Tex. Crv. Prac. & Rem.Code § 106.001(a); Tex. Lab.Code § 21.051.

While there are differences between 106.001 and 21.051 (both apply to state employees and political subdivisions of the state, while 21.051 also applies to many private employers), there has never been any indication from the Legislature that “because of ... sex” means one thing in Tex. Civ. Prac. & Rem.Code § 106.001 and something else in its sibling Tex. Lab.Code § 21.051. It would be an unreasonable construction of

section 106.001 to conclude that “because of sex” prohibits dress codes that recognize a difference between the sexes in light of the history of these statutes. B Another factor to consider in construing the statute is that there are criminal penalties for knowing violations of

section 106.001. Tex. Civ. Prac. & Rem.Code § 106.003. Offenders may be punished by a fine of not more than $1,000, confinement in jail for not more than one year, or both. Id. It is difficult to believe that in 1971, when the Legislature first included “sex” in the predecessor of

section 106.001, it intended to subject administrators of schools all across Texas to criminal penalties for enforcing hair-length restrictions for male students that differed from those applicable to female students. If that is what the Legislature intended, then it also intended criminal penalties to be imposed on school administrators who enforce dress codes that prohibit males from wearing dresses or skirts.

If hair-length regulations are discrimination “because of sex,” then certainly the prohibition of males wearing dresses is “because of sex.” As the District of Columbia Circuit said in discussing the analogy of hair-length rules to requirements that men not wear dresses and that men and women use separate toilet facilities, “[ajdmit-tedly these are extreme examples, but they are important here because they are logically indistinguishable from hair-length regulations.” Dodge v.

Giant Food, Inc., 488 F.2d 1333, 1336 (D.C.Cir.1973) (holding that hair-length restrictions applicable to males but not to females did not discriminate within the meaning of Title VII, 42 U.S.C. § 2000e-2). The fact that criminal penalties are associated with violations of

section 106.001 weighs heavily against construing it to prohibit school officials from enforcing dress codes. There is no indication that the Legislature was of the view that “because of sex” extended that far. As already discussed, there is an almost irrefutable indication to the contrary. See also Duke v. University of Tex., 663 F.2d 522, 526 (5th Cir.1981) (construing former

article 6252-16 and holding that penal provisions of the statute reinforced the conclusion that the charges of discrimination at issue were not prohibited by the statute). C The considerable weight of authority in federal and state courts holds that grooming and dress codes do not violate statutes similar to Tex. Lab.Code § 21.051. The rationale of those decisions is persuasive. Title VII of the Civil Rights Act of 1964, as amended, prohibits certain types of discrimination “because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a). The language of Tex.

Lab.Code § 21.051 regarding discrimination based on sex is almost identical to this federal statute. Of the seven circuit courts that have considered whether an employer’s regulation of the hair length of males violates Title VII, all have held that it does not. See Tavora v. New York Mercantile Exch., 101 F.3d 907 (2d Cir.1996); Barker v. Taft Broad. Co., 549 F.2d 400 (6th Cir.1977); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir.1976); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir.1976); Knott v. Missouri Pac. R.R., 527 F.2d 1249 (8th Cir.1975); Willingham v. Macon Tel.

Publ’g Co., 507 F.2d 1084 (5th Cir. 1975); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir.1974); Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C.Cir.1973); Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C.Cir.1973); Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697 (5th Cir.1968). Similarly, a requirement that men wear ties was upheld in the face of a charge of sex discrimination under Title VII. See Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977).

Most of the foregoing decisions recognize that the purpose of Title VII was to guarantee equal job opportunities for males and females and that there was no indication in the Civil Rights Act or its legislative history that discrimination “because of sex” included hair worn in contravention of an employer’s good grooming regulations. See, e.g., Willingham, 507 F.2d at 1091; Fagan, 481 F.2d at 1125.

Courte have also concluded that hair length regulations “are classifications by sex ... which do not represent any attempt by the employer to prevent the employment of a particular sex, and which do not pose distinct employment disadvantages for one sex. Neither sex is elevated by these regulations to an appreciably higher occupational level than the other.” Willingham, 507 F.2d at 1091-92 (quoting Dodge, 488 F.2d at 1337). The purposes and objectives of Tex. Civ. PRAC. & Rem.Code § 106.001 are similar to those of Title VII.

They are to prohibit the imposition of distinct disadvantages on one sex and to prohibit other discriminatory practices that affect the access of one sex to state benefits, amenities, or opportunities enjoyed by the other sex. Hair-length regulations in schools are not of this nature.

Grooming requirements do not elevate the status of one sex over another or deny educational opportunity “because of sex” any more than an employer’s imposition of grooming requirements would foreclose opportunities “because of sex.” In this regard, there is a similarity between the employer/employee relationship and the relationship between school administrators and students. School administrators stand in loco parentis and are expected to exert some control over the children that they are hopefully preparing to send into the workplace.

There is a valid distinction, which we drew in Barber, between state regulation of adults and state regulation of elementary and secondary school children. 901 S.W.2d at 450-51. For example, it may well be that an attempt by the State of Texas to impose grooming and dress code requirements on the general populace would be unconstitutional as a violation of a liberty interest. Cf.

Earwood, 539 F.2d at 1351 (stating that the right to wear long hair is clearly protected against government interference but that as against an employer, even a government employer, a grooming regulation will be sustained unless it is so arbitrary that it is a deprivation of a person’s liberty interest). Those who have argued that hair-length regulations violate Title VII or similar state statutes have often cited Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1970). See, e.g., Earwood, 539 F.2d at 1351; Fagan, 481 F.2d at 1120; see also Knott, 527 F.2d at 1250-51.

Phillips held that Title VII prohibited a hiring policy that excluded from consideration women with pre-school age children but did not exclude similarly situated men. Some of the circuit courts that have addressed the issue of hair-length regulation have distinguished the decision in Phillips on the basis that Title VII was intended to remove barriers that had operated in the past to favor an identifiable group (males) over another (females). See, e.g., Fagan, 481 F.2d at 1119-20. The reasoning in these decisions is equally applicable to the regulation of hair length in schools.

The requirement that males wear their hair no longer than a certain length may be out of step with the social norms of the moment, but it does not deprive male students of an equal opportunity to receive an education or to participate in school functions. Nor does regulation of males’ hair length elevate females above males any more than a requirement that females wear their skirts no shorter than a specified length elevates males above females. Hair-length restrictions for male students impose no barriers that operate to favor one sex over the other.

This is not to say that dress codes can never be discriminatory “because of sex.” The Seventh Circuit correctly held that an employer had crossed the line when it required women to wear uniforms but not men working in the same types of positions. Carroll v. Taiman Fed. Sav. & Loan Ass’n, 604 F.2d 1028 (7th Cir.1979). That court distinguished the facts before it from decisions addressing the length of men’s hair or the requirement that men wear ties. Id. at. 1032 (citing Fagan, 481 F.2d at 1115, and Fountain, 555 F.2d at 756).

The Carroll court accurately perceived that when some employees are uniformed and others are not, “there is a natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business attire.” Id. at 1033. The court observed that regulation of personal appearance is not necessarily in violation of Title VII even though different standards are prescribed for men and women.

The uniforms at issue in Carroll discriminated on the basis of sex because two sets of employees performing the same functions were subjected to two entirely separate dress codes—one including a variety of normal business attire and the other requiring a clearly identifiable uniform. Id. at 1032. The rationale of Carroll illuminates the difference between discrimination “because of sex” and grooming or dress requirements that differentiate among men and women. It was the obvious stigma associated with a uniform, not the dress code per se, that was discriminatory “because of sex” in Carroll.

Again, this reasoning applies with equal force to grooming and dress codes in our schools. Many states have enacted statutes similar to Tex. Lab.Code § 21.051 and Tex. Civ. PRAC. & Rem.Code § 106.001. Most of the state courts that have construed such statutes have held that regulation of hair length or other grooming or dress requirements is not discrimination because of sex. See, e.g., Pik-Kwik Stores, Inc. v. Commission on Human Rights & Opportunities, 170 Conn. 327, 365 A.2d 1210 (1976) (private employer’s hair-length regulations not discriminatory under statute); Indiana Civil Rights Comm’n v.

Sutherland Lumber, 182 Ind.App. 133, 394 N.E.2d 949 (1979) (private employer’s facial hair regulation is not sex discrimination under the Indiana Civil Rights Law); Bedker v. Domino’s Pizza, Inc., 195 Mich.App. 725, 491 N.W.2d 275 (1992) (private employer’s hair-length regulations did not violate Michigan’s CM Rights Act); Planchet v. New Hampshire Hosp., 115 N.H. 361, 341 A.2d 267 (1975) (private employer’s dismissal of security guard for refusing to cut hair did not violate state statute); Page Airways of Albany, Inc. v.

New York State Div. of Human Rights, 50 A.D.2d 83, 376 N.Y.S.2d 32 (1975) (private employer’s hair-length regulation not discriminatory under New York Human Rights Act); Lockhart v. Louisianar-Pacific Corp., 102 Or.App. 593, 795 P.2d 602 (1990) (private employer’s grooming regulations prohibiting males from wearing facial jewelry did not violate Oregon statute); Albertson’s, Inc. v. Washington State Human Rights Comm’n, 14 Wash.App. 697, 544 P.2d 98 (1976) (private employer’s hair-length regulation not discriminatory under Washington statute). There are a few courts, however, that are of the opposite view.

See, e.g., Idaho Comm’n on Human Rights v. Campbell, 95 Idaho 215, 506 P.2d 112 (1973) (commission stated claim of violation of state statute by school’s hair-length regulation for males); Jacobs v. Benedict, 39 Ohio App.2d 141, 316 N.E.2d 898 (1973) (school’s hair regulation impermissible because not “necessary” for government of schools, as required by state statute); see also Riegler v.

Holiday Skating Rink, Inc., 48 Mich.App. 449, 210 N.W.2d 454 (1973) (skating rink’s refusal to admit males with long hair did not violate statute as existed at that time, but could violate statute as amended to prohibit discrimination on basis of sex). The dissent would follow these cases, but the better reasoned decisions and the history of Tex. Civ. Prao. & Rem.Code § 106.001(

a) compel the conclusion that regulation of the length of male students’ hair but not females’ is not discrimination “because of sex” within the meaning of the statute. The dissent also seems to conclude that the particular punishment meted out by school officials violated the statute. Just how this is so the dissent does not say. There is no indication from the parties or from the record that the particular punishment chosen hacl anything to do with the sex of the student. There is no indication that females who violated the dress code to the same degree as Zachariah Toungate received lesser punishment.

The dissent is obviously offended by the severity of the punishment but cannot seriously contend that the degree of punishment was “because of sex.” IV Toungate urges us to reconsider and overrule our decision in Barber. We decline to do so. The United States Supreme Court has never chosen to resolve the issue of the constitutionality of regulation of hair length by schools. We do, however, have some strong hints that the United States Supreme Court has determined that it will not involve itself in hair-length disputes and that hair-length regulations do not jeopardize constitutional rights.

One such clue is found in Tinker v. Des Moines Independent Community School DistHct, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Although the Supreme Court held that school officials had violated the First Amendment rights of high school students who were suspended for wearing black armbands in protest of the war in Viet Nam, the Court distinguished the regulation of dress and hair length.

The Supreme Court observed that it had “repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional rights, to prescribe and control conduct in the schools.” Id. at 507, 89 S.Ct. at 737. The Court continued, “[o]ur problem lies in the area where students in the exercise of First Amendment Rights collide with the rules of school authorities.” Id.

It then contrasted the peaceable, nondisrup-tive display of black armbands, which it characterized as “closely akin to ‘pure speech’ ” with “the regulation of the length of skirts or the type of clothing, ... hair style, or deportment.” Id. at 505, 507-08, 89 S.Ct. at 736, 737. In so doing, the Supreme Court cited the decision in Ferrell v. Dallas Independent School District, 392 F.2d 697 (5th Cir.1968), on which we relied in Barber, and the decision in Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923).

Ferrell held that the prohibition of “‘Beatle’ type haircuts” for males did not violate the First or Fifth Amendments as applied to the states under the Fourteenth Amendment. Pugsley held that a school could deny admission to a female student for wearing face powder in violation of grooming regulations. Accordingly, the Supreme Court has at least implied that it would not strike down hair-length regulations in schools on constitutional grounds.

An indication of the lack of interest of the United States Supreme Court in hair-length matters in schools is the fact that the circuit courts have divided on the constitutionality of such regulations, and the Supreme Court has refused to grant certiorari when presented with the opportunity to resolve the conflict. See, e.g., Breen v.

Kahl, 419 F.2d 1034 (7th Cir.1969) (striking down hair-length regulation in high school), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970); Ferrell, 392 F.2d 697 (upholding hairlength regulations in high school), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968). Finally, as we observed in Barber, Justice Black refused to vacate the stay of an injunction that had prohibited El Paso school authorities from enforcing hair-length policies. 901 S.W.2d at 450 (citing Karr v. Schmidt, 401 U.S. 1201, 1202-03, 91 S.Ct. 592, 593, 27 L.Ed.2d 797 (1971)).

Justice Black imparted this wisdom: The motion in this ease is ... calculated to leave the impression that this case over the length of hair has created or is about to create a great national “crisis.” I confess my inability to understand how anyone would thus classify this hair length case. The only thing about it that borders on the serious to me is the idea that anyone should think the Federal Constitution imposes on the United States courts the burden of supervising the length of hair that public school students should wear. Karr, 401 U.S. at 1202-03, 91 S.Ct. at 593.

This Court correctly held that “this statement is no less applicable to the Texas Constitution and state courts.” Barber, 901 S.W.2d at 450. Our state courts should not become the arbiters of constitutional challenges to hair-length regulations in schools. ***** For these reasons, we reverse the judgment of the court of appeals and render judgment for BISD. . The pertinent portions of Title VII provide: (

a) Employer practices It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ...; or (2) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s ... sex. 42 U.S.C. § 2000e-2(a).