A Paper I Wrote in Law School: Part I

Part I – Black Hair

            This is a short story I call Ms. W and the Pink Potion. My kindergarten teacher, Ms. W, was Black. I don’t know what kind of Black but I know she didn’t speak Spanish so she could have been African-American or Afro-Caribbean (like from the Bahamas, for example). I was a quiet rule-follower so I had no more than the necessary interactions with her. She knew what my parents looked like because she saw them dropping me off or picking me up, but they never had any conversations – certainly not with my mom since she only speaks Spanish. One afternoon while working on a group activity, Ms. W discretely pulled me aside and walked me over to her desk. It was like she waited for the perfect moment to avoid any interruptions. She sat down, swiveled to the end of her desk, opened a drawer, and pulled out a mysterious pink potion in a crinkly, white plastic bag. She didn’t even give me enough time to be confused before she told me it was for my hair and instructed I give it to my mom as soon as I got home.

I told my mom all about the exchange when she picked me up that afternoon. We actually hurried home with excitement and opened the bottle together. Now I chuckle at the thought of a mysterious pink potion having the power to create an actual bonding moment, but it did. Anyway, we went in the bathroom and she made sure I translated whether it was a shampoo or conditioner. If it was, the trial would have been postponed to the weekend, because, no water Monday through Friday. It was neither because she squeezed out the pink potion and lathered it on my dry hair immediately. Whatever it was, my mom really liked it because it became one of her staples in my styling routine. My mom was so grateful for Ms. W’s recommendation she made sure to communicate it anyway she could. Since my mom couldn’t speak English, gestures were the way to go; Ms. W was always gifted with the nicer perfumes and scarves.

It all seemed so innocent in the moment. Ms. W saw the only little black girl in her kindergarten class with chemically processed hair and probably recognized my need for products, my struggle, and my mom’s struggle, without the need to incite a single conversation. I hate to say Ms. W was right on the mark because my mom’s hunt for the “perfect” product or method to tame my hair was one of the reason’s for her very existence. An existence that was unfortunately taking us in a circle, rather than finding actual solutions and education. But I’m not blaming her – she tried really hard.

What makes me sad about this story, 20 years later, are the many hidden layers of complicated history and identity issues concealed in Ms. W’s pink potion and so many others like it. An identity of people who, for generations, were robbed of knowing their true selves. I feel like I was robbed but I’m making up for it in my own time. There are several reasons why there are generations of appearance modification within the Black community and they likely do not know what their hair looks like as it grows out of their scalp. I was one of them until just a couple of years ago. All that to say, we keep handing down the bottles of pink potion, instead of decolonizing ourselves and our children. And the law hasn’t exactly helped in the past. It’s not Ms. W’s fault, or any one person’s fault. It just is. But I wish to speak on it because I see it.

A.   THE KINKS AND THE COILS

My experience transitioning highlighted how pervasive the lack of information is. It wasn’t until I went natural that I began to educate myself. I’ve had Black hair since birth but I had no concept of what that meant until my transition. I quickly learned I couldn’t take the journey without the proper education. I am now amazed at how much I did not know about my hair and Black hair in general. I was most astounded to learn that coarse black hair needs water because of… And here I was, staying away from water was indoctrinated in me from such a young age that I was incredulous at first. I thought that was maybe for some naturals, not all. A year and half later, and not a day goes by where my hair doesn’t see water.

 In her Comprehensive Guide to Textured Hair, natural hair author Audrey Davis-Sivasothy, explains the two characteristic presentations of black hair: black hair in its natural state (not chemically treated) and black hair that has been chemically manipulated (chemically straightened). Black hair naturally “twists, bends, and kinks in a variety of interesting angles along the hair fiber,” and very rarely are any two single strands of hair identical.[1] Hair is given its character at the follicle level; the shape of the hair follicle contributes significantly to the shape and appearance of the emerging hair fiber. Kinky hair fibers are produced from elliptical or oval shaped hair follicles in the scalp while Asian and Caucasian hair fibers grow from round or circle-shaped hair follicles. As a result, Asian and Caucasian hair tends to be fairly uniform (in texture and thickness) from root to tip. Black hair does the complete opposite, bending and twisting in random ways. Davis-Sivasothy compares it to the following:

“Imagine the technique used to curl ribbons for gift wrapping. Typically, a piece of straight ribbon is held taut while a pair of scissors is held flat against one side of the ribbon. The ribbon is then pulled against the side of the scissors to produce a curl. In much the same way, [black] ovoid follicles flatten [black] hair fibers on one or both sides as they emerge from the scalp, creating an intense, unpredictable curl.”[2]

In addition, black hair flattens and decreases in diameter along its bends and twists, making it more fragile than Asian and Caucasian hair. In her guide, Davis-Sivasothy also shares research showing that the pulling force required to break a strand of black hair is much less than what is needed to break a strand of Asian or Caucasian hair.[3]

This information is basic and crucial all at once. The science of it is quite clear. Black hair looks and feels different because it grows differently. It is also worth mentioning that black hair grows the way it does because it was an evolutionary tactic.[4] It makes perfect sense that such woolly hair would develop as a defense to the unruly African sun. Personally, I was ignorant of this information and so is my mother, my grandmother, my aunts, and probably most of the women in my family. Then I think about this being multiplied by all my Black female friends who likely share the same experience of growing up with women that simply don’t know their hair. But without this information, there is no background for understanding why black hair doesn’t softly flow, or why the maintenance of black hair looks like a myriad of hairstyles. Some widely accepted, some not. The issues is when you compare which style are widely accepted with those that are not. It’s the difference between what a soft flowy weave says, versus braids.

More importantly, Courts generally protect employer mandated grooming codes and they often give greatest deference to codes that classify individuals on the basis of socially-conditioned rather than biological differences.[5] That is an enormous problem for black women, when their hair is biologically different from the people who write, enforce, and interpret grooming codes.  Discussions of black hair have made its way from southern cotton fields, to the era of Jim Crow, to our court system. But if many black people don’t understand how their hair grows or how to care for it, then it’s hard to imagine a middle-aged white judge understanding what black women need in the workplace or why certain hairstyles go beyond the purview of looks or trend

B.    THE HISTORY

Today, going natural can be a badge of honor or a source of contention. Regardless, of how any natural woman regards her “journey,” she will likely agree that it is a rapidly growing community that shares unique struggles. But the root of that struggle is so deeply hidden and embedded in our social structure, that we lack the information to make our own educated decisions on why we wear our hair the way we do. I know several black women who represent the full spectrum of possible curl types, (with kinky or wavy hair) who often complain about how weak their hair has become over time. Or why their hair is missing the volume and thickness it once had. Or, wondering what happened to their beautiful childhood curl pattern and how to get it back. A lifetime of heat and chemical processes will undoubtedly ruin a natural curl pattern. Yet and still, most black women lack the awareness to see the connection between slavery and their relationship with their hair. With Most of our learning is entrusted to the public education system who caters to the mainstream, the thought of Black hair as a serious topic of discussion is a laugh.

The current knowledgeability on the maintenance and history of black hair is generally limited in the Black community, with the exception of the natural movement or people who have never not been natural. What is interesting is the long-standing cemented relationship between a black person and their hair long before the slave trade; despite the many variations of African hair, one thing remained constant, and that was the social and cultural significance of hair.[6] The significance of this relationship is the insight it provides  in understanding why black people know so little about the maintenance of their own hair and how slave masters used it to oppress them.

In West Africa hairstyles have been used to demonstrate a person’s marital status, age, religion, ethnicity, identity, wealth, and rank within the community. [7]It was common to identify a tribe’s geographic origin based on a person’s hairstyle. Importantly, the aesthetic aspects of hair were just as significant as the social. If a woman’s hair was messy or undone she was deemed to have poor values or she was depressed. In addition, the belief in hair’s spiritual potency added value to hair’s significance in West African societies and cultures. Only the community’s most masterful hands were entrusted with the responsibility of touching such a worthy part of the self. The point I make here is not that African’s were unique for the complex system of social symbols attached to hair, but for the backdrop of why European’s were so confused by the “complexity of styles, textures, and adornments,” instead.[8]

European slave traders and life in the New World provided slaves with a host of threats that would begin to weaken the relationship between them and their hair. One of the first things slave traders did to their new cargo was shave their heads. This was considered one of the most dehumanizing acts – a shaved African head was often interpreted as taking away someone’s identity. Shaving of the head was one of the first methods used to erase the slave’s culture and interrupt a long-standing cultural relationship. When slaves arrived to the New World, they arrived as anonymous chattel, stripped of one of their most important social symbols.

Working conditions in the New World were another factor. Extreme heat, long hours, and poor hygiene led to pervasive ring worm and scalp diseases. Also, the long work hours meant slaves had little time to care for, or even think about, their hair. This was strikingly different to their lives in Africa where women spent much of their time and resources grooming their hair with intricate styles and adornments. The scalp diseases that came with life on the plantation created a new source of shame for what was once a point of pride and identity. Women resorted to hiding their hair behind rags to protect from the sun, in part, and cover their shameful, infected hair and scalps. Over time, the head rag became ubiquitous in slave culture.

Work assignment added, what I argue, the most complicated and significant layer to a slave’s relationship with their hair. Women who worked the fields and lived in separate backhouses wore rags (while men took to shaving their heads and wearing hats). Slaves who worked more closely to their white masters or those who, by trade, had more interactions with white society, wore hairstyles that mimicked that of the ruling social class. Some slaves took to wearing wigs, as was popular in the eighteenth century for white men of stature. Indoor slaves, like cooks and caretakers, were required to keep a neat appearance so they resorted to wearing tight braids and other styles that were “an amalgam of traditional African styles, European trends, and even Native American practices.” [9] The scientific community also gave the white ruling class the evidentiary support it needed to attest their claims of Black inferiority.[10]

By the end of the transatlantic slave trade, a distinct black American culture was newly developed and it “…became an intriguing mixture of African traditions and those developed in the Americas as a means of survival.”[11] This means of survival was applied to hair as well. Sick and unappealing slaves were a negative reflection on slave owners and difficult to sell for their seemingly depreciated value. So, it was around this time slave owners allowed Sundays to be a day of rest. Slave women spent much of their Sunday either at church or grooming their hair for the next week. Alongside the development of Sunday as a day of rest, a new practice began: [a new practice to fit a new reality: grooming one’s hair around the work week, a practice still observed today by many black women. I was thrilled to learn the origins of this wretched practice.

Over time, those grooming practices strayed further away from traditional African designs and much closer to an imitation of white styles. Both men and women were interested in straightening their hair because straight European hair was the ideal standard of beauty.[12] When long, straight, soft hair accompanied by soft features became the feminine beauty ideal, Black women started to perceive themselves as ugly and inferior. It took little time for this internalization to become a universal truth that would transcend generations.

Achieving straight hair to comply with the beauty standard was just one motivator. The value in straight hair was far beyond that of achieving attractiveness; straight hair translated to economic opportunity, social advantage, and a better chance of social acceptance. Giving rise to the “good-hair, bad-hair” dichotomy. In the early nineteenth century, more than 100,000 free black persons were the mulatto offspring of the first African arrivals and their European masters. Lighter skin tones and kinky-free hair texture soon became symbolic of free status. Many blacks who carried these characteristics tried to pass as white for the upward mobility and promise of economic improvement. Along with the brown paper bag test, the general rule of thumb was that if a person showed any bit of kink in their hair, they were unable to pass as white, thus incapable of accessing opportunities for advancement.[13] Black people internalized this oppressive rhetoric and perpetuated the notion that darker-skinned blacks were unintelligent, unattractive, and inferior to lighter-skinned blacks.

Internalizing inferiority does not vanish, it solidified as a cornerstone of the African American culture. The history and context of black hair in America, coupled with a judicial system that means well but fails to understand, black hair remains to be one of the most successful, yet under-the-radar targets for perpetuating systemic oppression in the labor force. Case law demonstrates so. (Still working on thesis. Deciding whether to make the claim that judges are innocent or deliberate in perpetuating status quo). This is not widely discussed, not even in the black community, so it has led to the law’s current promotion of appearance discrimination as well as the perpetuation of a structural oppression. The abstract form of oppression that is difficult to see is important because it is rooted in the overt. The lasting effects of slavery have made their way to the professional spaces continually dominated and traversed by the white patriarchy. How will black women ever make respectable strides towards progress, when their natural hair is still regarded as unkempt?

Learning this history makes me proud to wear my hair natural. I feel even more satisfied knowing that I took it upon myself to learn this history and help shape my identity. Going natural has been a badge of honor but I feel conflicted knowing that my badge of honor might be viewed as a badge of disgrace in a profession that is classically associated with a “clean” look.

 

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[1] Audrey Davis-Sivasothy, THE SCIENCE OF BLACK HAIR: A COMPREHENSIVE GUIDE TO TEXTURED HAIR CARE x-x (2011).

[2]

[3]

[4] see Byrd & Tharps.

[5] Paulette M. Caldwell, A HAIR PIECE: PERSPECTIVES ON THE INTERSECTION OF RACE AND GENDER, 1991 Duke L.J. 365, X-X (1991) (discussing the intersection of race, gender, and law).

[6] There is no one single type of African hair. The spectrum ranges from region to region, finding deep, ebony kinks to loosely curled, flowing locs. Ayana D. Byrd & Lori L. Tharps, HAIR STORY: UNTANGLING THE ROOTS OF BLACK HAIR IN AMERICA X-X (2014).

[7] This source focuses on West Africa.

[8] Ayana D. Byrd & Lori L. Tharps, HAIR STORY: UNTANGLING THE ROOTS OF BLACK HAIR IN AMERICA 1-7 (2014).

[9] 13

[10] Slave owners and white society in general succeeded in demoralizing slaves by insisting that their dark skin and kinky hair were abnormal and unhealthy. In the New World, dominated by fair skin and soft loose hair, all physical traces of Africa were unsightly and many white people insisted that blacks did not have hair, derogatorily referring to it as wool instead. The scientific community commonly deemed dark-skinned persons to be at the bottom of the evolutionary ladder. Science fueled the rhetoric that became the base for the slave masters’ brainwashing. See Byrd & Tharps.

[11] See Byrd & Tharps.

[12] 16

[13]