Hair and Free Speech: Can Employers, Schools Regulate Hairstyles?

From pixie cuts to Afros, braids to locs, fancy mustaches to observant beards — hairstyles and grooming choices can reflect personal style, self-expression, or cultural or religious identity.

So, is hair or a hairstyle a form of speech or expression that is protected by the First Amendment? And, if so, can it be regulated by the government? In short: It can be speech or expression, but it can also be regulated in certain instances.

Is hair free speech?

Choices about hair style and color and facial hair can be a point of pride and express taste, preference or beliefs.

Hair can also be protected from government regulation as a First Amendment or other constitutionally protected form of expression, or by laws that prevent discrimination based on race or religion.

Hair can be protected as free speech or expression

The First Amendment protects speech, including symbolic speech often referred to as expression, from undue government restriction.

The U.S. Supreme Court has held that symbolic speech is protected by the First Amendment if there is an intent to convey a message and it’s likely the message would be understood by those who view it.

This means that if a hairstyle clearly communicates an idea or view, such as dying your hair pink for breast cancer awareness, there is typically a high bar preventing government regulation.

Even if a hairstyle does not communicate a specific message, but someone simply prefers a shaggy mop or a buzz cut, this type of personal expression may be protected from government regulations through other parts of the Constitution, such as the equal protection clause of the Fifth Amendment or the due process clauses of the Fifth and 14th Amendments.

But the right to personal expression through hairstyles and facial hair is not unlimited, regardless of the source of its protection in the Constitution.

The government can sometimes regulate grooming, including for government employees, people in prison and public-school students.

Private schools and private employers are not bound by the Constitution, so a private school or business can more easily set rules and regulations for its students and employees. However, state and federal laws do prevent some kinds of discriminatory regulations on hairstyle by private companies.

Hair can be protected as religious freedom

The First Amendment as well as other federal and state laws protect the free exercise of religion. Some religious traditions include grooming requirements such as wearing a beard or a certain length of hair.

In many cases, people with a religious accommodation are exempt from hairstyle regulations that would prevent them from practicing their religions.

Hair can be protected from discrimination by a CROWN Act

About half of U.S. states have a law known as a CROWN Act, which stand for Creating a Respectful and Open World for Natural hair.

These laws ban hair-based discrimination against people who wear hairstyles associated with a particular race or national origin. This protection is not based in the First Amendment but enhances and clarifies rights under the equal protection clause of the 14th Amendment.

Proponents of such laws note that hair regulations by schools or employers are often written primarily to exclude or punish Black students or employees.

The Texas CROWN Act was tested when a Black student was punished for his pinned up locs. The school district said his style violated its limits on hair length, which are based on the length when worn down. In February 2024, a judge ruled that the school district did not violate the CROWN Act in punishing the student, since the law did not specifically protect hair length. The student transferred to a different school.

Are there times hair can be regulated?

Freedom of speech is not unlimited. Just like other forms of expression can sometimes be limited when the government has a strong reason, sometimes hair can be regulated by the government without violating free expression rights. Courts do not always agree on when hair can be regulated, and they consider many examples on a case-by-case basis.

Generally, symbolic speech like hairstyles can be regulated if the government can demonstrate (1) an important or substantial interest for restricting a certain hairstyle; (2) that this interest is unrelated to any message the person is trying to express through their hairstyle; and (3) that the restriction allows other avenues for the message to be expressed.

Hair as free speech in schools

Federal courts are divided over when and how public schools can enact and enforce rules around students’ hair. Courts have issued opposing rulings on whether students have a right to free expression that hair restrictions would violate, what circumstances might justify schools regulating hair, and how schools must justify hair and grooming rules.  Generally, schools tend to cite safety and health as reasons for these rules.

The late 1960s and early 1970s saw a flurry of student hair court cases as hairstyles changed to be less aligned with strict school rules.

A 1971 study of federal student hair cases found that out of 30 pending cases just three hair rules were upheld because a student’s hair had actually disrupted school or caused health and safety concerns. However, the study also found that often courts deferred to the school officials’ judgment that hair rules were needed, accepting such reasons as aesthetic standards, future employment opportunities or a desire for student uniformity.

While the Supreme Court famously ruled in Tinker v. Des Moines Independent Community School District (1969) that students don’t lose First Amendment rights when at school, the court’s decision that students should not have been punished for wearing black protest armbands also specifically stated that the case was much different than a case over skirt or hair length may have been.

The Supreme Court has never heard a student hair case.

It has declined to review appeals court rulings in at least five cases about students’ hair, including one ruling striking down hair regulations (Breen v. Kahl, 1969) and four rulings upholding school hair rules.

The rulings upholding hair rules deferred to state and local authorities’ expertise on what guidelines their schools needed to ensure effective education. The 1969 ruling said that hair rules weren’t tied strongly enough to the school’s educational goals to justify expelling two students for violating them.

Court cases over students’ hair have declined as a wider range of hairstyles has become more socially acceptable, but hair disputes do continue today.

In addition, generally applicable rules regarding hairstyles must be balanced against each school’s need to protect students’ rights to free exercise of religion as required by the First Amendment and by the federal Religious Freedom Restoration Act and its state counterparts. These statutes require the government to have a compelling interest to justify any substantial burden on a person’s exercise of religion.

In June 2023, Lumbee and Waccamaw Sioux students at a North Carolina charter school persuaded their school to let them wear long hair in keeping with their religious and cultural practices. Their charter school had initially sent letters to parents saying it would begin enforcing a policy against boys having long hair, even if worn up. After receiving petitions from parents and students, the school decided not to enforce the hair policy.

Hair as free speech at work

Government employers, including the military and law enforcement, often have regulations around hair and grooming for their employees. These rules are typically created to protect health and safety and sometimes to ensure a certain public image or uniformity among employees.

Police department hair regulations for officers have been upheld by the Supreme Court, which said in Kelley v. Johnson (1976) that such rules do not violate due process rights under the 14th Amendment.

However, in August 2024, a California ban on department of corrections staff wearing beards was put on hold because it did not include religious accommodations.

Over the past decade, the military has enacted more accommodations for people seeking religious exemptions to grooming standards.

Army Capt. Simratpal “Simmer” Singh successfully challenged on religious grounds the U.S. Army’s ban on long hair and beards. In 2017, the Army issued new guidelines enabling Sikh Army members like Singh to get religious exemptions.

In June 2024, Cpl. Bradford Flores became the first active-duty member of the U.S. Marine Corps to be authorized to wear long hair in keeping with his Navajo religious tradition.

People working or seeking to work at private employers can also ask for religious accommodations to workplace hairstyle rules. Whether such accommodations must be provided depends on the accommodation requested and the needs of the workplace.

Hair as free speech in prisons and jails

People held in prisons or jails can be subject to hair restrictions enacted for health and security reasons.

Most states and the federal prison bureau allow beards of any length for incarcerated people, but some require a stated religious exemption.

In many cases, but not all, religious beliefs must be accommodated with exceptions or waivers to grooming rules.

In 2015, the Supreme Court overturned an Arkansas prison rule banning any beards, including a half-inch beard a Muslim man said was required by his faith. The court said the rule was too burdensome of religious exercise under federal law (Holt v. Hobbs, 2015).

Similarly, in 2024, a federal court said that a Muslim man must be allowed to wear an untrimmed beard as an exception to Florida’s ban on beards in prisons.

However, in 2022, the Supreme Court let stand an appeals court ruling that upheld a Georgia prison system rule limiting beards to half an inch, even if an incarcerated person sought a religious exemption to wear a longer beard (Smith v. Ward).

What's the bottom line on hair and the First Amendment?

Practicing your faith or sending a message with your hairstyle is protected from most government regulation unless it can meet strict standards for why it is limiting the hairstyle.

When hairstyle isn’t sending a message, it may be easier for the government to limit it.

If schools determine that regulations around hairstyles are required to protect health, safety or education, such regulations may be OK if courts agree the regulations are legitimately needed to ensure the school’s goals.

This report is compiled based on previously published Freedom Forum content and with the input of Freedom Forum First Amendment Specialist Kevin Goldberg.