Hair-Raising Case: White Baltimore Arts Executive Fired For Wearing Cornrows

Authored by Jonathan Turley via JonathanTurley.org,

A White Baltimore arts executive was recently fired in September from the Baltimore Rock Opera Society. The reason was not that Kelly Carnes was chronically absent or failed to perform her duties as the new executive director. Rather, it was the hairstyle that she briefly adopted on vacation. You see, Carnes is white, and co-workers were apparently triggered by her getting cornrows while attending the Burning Man festival.

It was not deemed a fun hairstyle choice adopted on a vacation but rather a despicable case of cultural appropriation that warranted her termination.

Carnes was hired on Sept. 8 and was heralded for her more than 21 years of experience in arts leadership, nonprofit strategy, communications, fundraising, and operations.

She said that she adopted cornrows as a ‘protective style’ while attending Burning Man.

We have previously discussed cultural appropriation controversies where people were triggered by cornrows, dreadlocks (and here), food (and here), costumes, big hoop earrings, yoga (and here), songs, opera, or dance styles. Businesses and universities have yielded to these attacks, curtailing a wide array of different forms of free expression in the name of cultural tolerance.

Activists have even targeted artist Bo Derek for wearing cornrows in her Movie “10.” These critics ignore that many hairstyles, like music and dance styles, began with particular cultural groups before becoming popular with general populations.

The Baltimore Rock Opera publicly stated that it knew its new executive director was spotted with cornrows and that it would immediately conduct a full investigation.

The Opera has now triggered a possible hair-raising case in which Carnes could allege racial discrimination. It would also make a novel and potentially important free speech case.

At issue may be Maryland’s CROWN Act, which protects minority employees from discrimination based on traits associated with race, such as hair texture, afro hairstyles, and protective hairstyles. The law must apply equally to all races, including hairstyles adopted by Caucasian employees.

Under the state’s discrimination laws, cornrows are clearly not a matter that would “reasonably preclude the performance of the employment.” It is an objection to the appearance of employees based on racial bias or intolerance.

In my view, this is clearly racial discrimination as well as an abridgment of free expression. This is even clearer after Maryland enacted the CROWN Act, which defines race for anti-discrimination protections to include “traits associated with race,” such as hair texture, Afro hairstyles, and protective hairstyles.

The fact that this was passed with reference to protect African American employees is not determinative. Carnes was fired because of her race and the adoption of a rule barring hairstyles on a racial basis.

Maryland said that it wanted to protect hairstyles. This may not be the litigant that they had in mind, but it is the same form of racial discrimination.

For the left, the Carnes case could be a discomforting moment of having to face racial discrimination done in the name of racial harmony or equity. At one point, the left relished hairstyle freedom as a form of free expression. That was captured in the popular musical Hair, which became a virtual national anthem for the left in the 1970s.

“Hair (hair, hair, hair, hair, hair, hair)
Grow it, show it
Long as I can grow it
My hair

I want it long, straight, curly, fuzzy
Snaggy, shaggy, ratsy, matsy
Oily, greasy, fleecy
Shining, gleaming
Flaxen, waxen

Knotted, polka-dotted
Twisted, beaded, braided
Powdered, flowered, and confettied
Bangled, tangled, spangled (and spaghettied!).”

While the Supreme Court has only addressed hair regulations a few times (often in the context of allowable hair regulations for military or prison settings), hairstyles are (in my view) a form of free expression.

A few lower courts have supported that view. In Breen v. Kahl, the Seventh Circuit found in 1969 that “The right to wear one’s hair at any length or in any desired manner is an ingredient of a personal freedom protected by the United States Constitution.” While the appellate court was equivocal on where this right rested between the First and Ninth Amendments, it concluded that “it clearly exists and applies to the states through the Due Process Clause of the Fourteenth Amendment.”

There can also be religious-clause protections for hairstyles, though that is not the case here. However, there remains good-faith debate over the extent to which hairstyles are protected in comparison to free speech.

That is why this case is more likely to be resolved on the grounds of racial discrimination. Baltimore Rock Opera’s firing of Carnes because of her race appears incontrovertible. If she were an African American, she would still be the executive director wearing cornrows. The Opera is telling employees that their hairstyles will be monitored on the basis of their race.

As Chief Justice John Roberts famously wrote, “It is a sordid business, this divvying us up by race.” While he may have been thinking more about college admissions than hairstyles, it is still true that “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Carnes could make a lasting contribution to constitutional law by standing firm against this discriminatory action. Of course, it is not easy to suddenly find yourself the target of a woke mob. She no doubt feels, as observed in Richard III, that “My hair doth stand on end to hear [these] curses.” However, we are all cursed if the mob is allowed to control how we appear in public.

Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”