Author Archives: Brett Dolin

The Cost of Litigating the Right to be Bearded

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Baerte_ohne_textA man fired for refusing to shave his beard has been awarded $65,174.83 in back pay, costs, and attorney’s fees. As reported, Abdulkadir Omar refused to comply with demands from his employer, American Patriot Security & Investigations, Inc., to shave, citing his sincerely held religious belief that, as a male Muslim, he is required to keep a beard. (Contrary to the misleading headline of the linked article, Omar was not awarded “$66,000 in back pay” — $50,791.50 went to attorney’s fees.)

The timeline of the firing, as alleged in the complaint, indicates there may be more to the story than a dress code violation. Omar began working for the private company, American Patriot, as a security guard on May 28, 2009. Five months later, a supervisor ordered him to shave his beard. Omar refused, citing his “sincerely held belief.” Almost six months after that, on April 21, 2010, Omar met with Project Manager Nicole Smith to complain that he had not been “paid all his wages for time worked.” During this meeting, Smith repeated the request that Omar shave his beard. He again refused, and contacted the Council on American-Islamic Relations (CAIR), which issued a letter on April 23 corroborating Omar’s claim. That same day, Scott Jacobs, CEO of American Patriot, suspended Omar without pay over the facial hair issue, and “challenged [his] religious belief.” The statutory claim of religious discrimination is, therefore, alleged as retaliation for Omar’s complaints about unpaid wages.

The judge here found Omar’s claim to be legitimate. The wide latitude given to private employers to govern employee dress and appearance with few constitutional implications is discussed in the “Dressing Professionally” section of Dressing Constitutionally.

As this case shows, regulation of appearance can function as both an end in itself and as a cover for other wrongs: when Omar complained about wages owed, his employer suspended him for a dress code violation, and he won his case on a claim of appearance-based religious discrimination.  Yet as this case also demonstrates, the cost of vindicating rights is high.

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Paintings Depicting Nudity Removed from County Exhibition

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Botticelli_VenusSan Bernardino County officials removed two paintings by Efron Montiel Jiminez and one by Armando Aleman from the annual National Hispanic Heritage Month exhibition at the County Government Center. The paintings feature nude figures from various angles, and their removal has raised First Amendment issues concerning the display of nudity in public buildings.

The county reportedly invited artists to submit works without stipulation, accepted the three, and then installed them in public space inside Government Center. After receiving complaints from “several visitors and county employees,” county officials removed the paintings and asked the artists to pick them up. A third artist reportedly censored his own paintings, with a sign apparently reading “Censored for a ‘Government’ Building.”

The National Coalition Against Censorship and the ACLU of Southern California have taken issue with the removal of the paintings, reportedly sending a letter to the County Board of Supervisors. The letter alleges that the First Amendment applies to Government Center, as a “public space opened to exhibiting artwork,” and that “government officials cannot arbitrarily impose their prejudices on a curated exhibition.” The letter cites the Ninth Circuit case of Hopper v. City of Pasco for the proposition that, “by opening its display space to expressive activity,” it has “evinced ‘an intent to create a designated public forum.’” In a “designated public form” with First Amendment protections, a court should apply strict scrutiny, requiring a “compelling state interest” and a means “narrowly drawn to achieve that end.”

San Bernardino spokesman David Wert has attempted to distinguish the situation at Government Center, reportedly saying, “The county doesn’t believe it’s censorship because the county isn’t an art gallery. People don’t go to the Government Center to see art.” He goes on to cite personnel rules that “guarantee employees a work environment where they’re not subjected to offensive images” and the usual appeals to the sensitivities of children. He describes the removal of the paintings as an act of “discretion” rather than censorship, but acknowledges, “In retrospect, I wish we had taken a look at the artwork in advance.”

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Dallas Pride Parade Dress Code Enforcement Draws Debate

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Cheering_(9178105985)Controversy ensued after organizers of the 30th Annual Alan Ross Texas Freedom Parade (“Dallas Pride”) announced a new effort to enforce state and city public nudity and lewdness laws at the parade. As reported, Michael Doughman, executive director of the Dallas Tavern Guild, organizers of the parade, said, “Just because it’s a day of celebration for our community doesn’t mean we are exempt from the law.” Doughman also reportedly said, referring to Dallas police, “[T]hey’ve looked the other way for years and years and years, but public lewdness and nudity in public [are] not going to continue to be tolerated.”

Dallas police officer and parade security co-commander Jeremy Liebbe reportedly described the effort as a “preventative measure” to address a “trend” in recent years of ignoring laws that had already been in place, but were apparently not rigorously enforced. As Liebbe explained, officers would review and warn marchers in the staging area prior to the parade, and those who had not complied before reaching the parade itself would be “removed from the parade and individuals may be charged with class-B misdemeanor indecent exposure.” If such indecent exposure were to occur in front of a child during the parade route, individuals may have committed felony indecency with a child, a third degree felony. See sections 21.08 and 21.11(a)(2)(A) of the Texas Penal Code. 

400px-Thai_Sunnyboy-Christopher_Street_Day-Berlin_2006While parade organizers and police have presented the new enforcement protocol as “preventative,” critics have charged that, in the words of activist Daniel Cates, “[the] ‘queer’ is effectively being erased from our pride celebration in favor of the most polished, heteronormative representation of our community possible.” According to this view, “family values” and corporate sponsorship have co-opted the meaning of the pride parade, covering its roots in sexual liberation with marriage equality, military service, and dress code enforcement. 

Controversy aside, Dallas Pride occurred with no reported dress code infringements and a large increase in attendance over the 2012 parade. Meanwhile, a man arrested at the 2011 San Diego pride parade has filed a complaint in the United States District Court for the Southern District of California against the City of San Diego, San Diego police officers, and San Diego Pride. He alleges, amongst other causes of action, violation of his 14th Amendment right to equal protection of the laws because of unequal and discriminatory enforcement. His issue? Walters was arrested for public nudity at the parade because of his outfit.

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City “Entertainment District” Proposes Dress Code

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Seeking to create a “sophisticated” and “family friendly” atmosphere, the organization running a Lincoln, Nebraska, “entertainment district” will reportedly enforce a dress code for those using its two outdoor courtyards.

railyardThe “entertainment district” consists of two courtyards separated by a public street, which can be closed and made part of the district during special events. The courtyards also serve as an outdoor dining space for a number of restaurants. The area is across the street from Pinnacle Bank Arena, home of the University of Nebraska’s men’s and women’s basketball teams. 

The dress code, as reported, would ban clothing with profanity, tank tops, cut-off shirts, exposed underwear, excessively long shirts, excessively baggy clothing, wave caps (see below), “any type of clothing that could be used as a weapon,” and “clothing associated with gangs.” In addition, “all hats must be straight forward or straight back and not to the side.” Private security guards, information “ambassadors,” and off-duty police officers will enforce the dress code. 

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banned in the Lincoln “Entertainment District”?

The proposed dress code has already created some controversy in Lincoln, including worry that “those of certain demographics” will be unfairly targeted. Stefanie Warner, who oversees the district for the private operating company, reportedly stated that the project’s goal is “to create a more sophisticated and mature atmosphere for the young professionals we are trying to attract to the area,” “a family-friendly area,” and an area “unique from other areas of Lincoln.”

A vague dress code enforced on what might appear to be a public plaza (and street) by off-duty police officers seems like trouble. Those looking to challenge unfair expulsion from the “entertainment district” may be disappointed, however. While the Lincoln City Council created the district, and the dress code reportedly addresses council members’ security concerns, potential litigants will face the threshold issue of state action.

In the 2008 case of Villegas v. Gilroy Garlic Festival Association, discussed in Dressing Constitutionally, the Ninth Circuit affirmed summary judgment for the City of Gilroy, California, in a civil rights action brought by members of a motorcycle club. Off-duty police officers had expelled the club members from the Gilroy Garlic Festival, held in a public park, for violating a dress code. The “unwritten policy” in that case banned “gang colors or other demonstrative insignia, including motorcycle club insignia.” The Ninth Circuit held that the off-duty police action at the festival did not constitute state action: running festivals is not a “traditional municipal function” and the city was not a “moving force” behind the police enforcement of the dress code. 

The Lincoln City Council has apparently ceded management of the “entertainment district” to a private organization, and the private organization will create and enforce the dress code. Although potential litigants might, for example, compare administration of a street and plaza to a “traditional government function,” they may, like the plaintiffs in Villegas, find the courthouse closed.

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“Littering Case” Becomes Bomb Scare for Man in “Middle Eastern Garb”

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thobesIn a case described as “littering while Muslim,” Boston police arrested Amar Ibrahim last Thursday, charging him with littering, as well as disorderly conduct and interference with public transportation, a felony. Ibrahim, after finishing his chocolate milk, tossed the bottle onto the ground, where it landed underneath the No. 66 bus of the Massachusetts Bay Transportation Authority. At the time, Ibrahim was described as wearing a thobe, a “common article of clothing for men in some parts of the Middle East,” and head covering. 

Meanwhile, aboard the No. 66, a bomb scare ensued. As reported, Boston Police Superintendent-in-Chief Daniel Linskey said the bus driver became alarmed when a man in “Middle Eastern garb” “bent down and appeared to be placing a black object underneath the bus as if attaching some type of device….” The bus was evacuated, Mr. Ibrahim was arrested, and a police bomb squad later discovered the plastic bottle. 

The Council on American-Islamic Relations has called for the charges to be dropped, with spokesman Ibrahim Hooper reportedly saying, “I think you could obviously make the case that it would have been a different reaction, had he not been dressed in quote, ‘Middle Eastern garb.’” Ibrahim’s lawyer, Charles Pappas, reportedly described the situation as a “littering case” and said the rest of the charges had been “blown out of proportion.”

While Mr. Ibrahim was eventually released with no bail (after a night in jail), he still faces felony and misdemeanor charges for a littering violation punishable by a fine (and probably not a night in jail). Of course, one can imagine a more likely punishment for tossing a milk bottle while not in “Middle Eastern garb:” a disapproving glance and no bomb scare.

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The NFL’s Policing of Players’ Tattoos and Spectators’ Purses

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Aaron_HernandezThe NFL may employ “police experts” to investigate players’ tattoos. As reported, after the arrest of former New England Patriots player Aaron Hernandez on murder charges, some linked him to gang activity and pointed to his tattoos as evidence, particularly a tattoo of the word “Blood” as a connection to the Bloods gang. As noted, next to “blood” is tattooed the word “sweat,” as in “blood, sweat, and tears,” so perhaps the tattoo-gang connection remains ambiguous. For a gallery of some tattoos and their supposed meanings, look here and here. 

While it is reported that “it is not illegal to discriminate against someone for tattoos and piercings,” the idea that the NFL would subject its players to some sort of tattoo review is troubling. Tattoos are apparently fairly common among players and potentially quite extensive.  While tattoos are a protected form of expression, private employers are usually free to implement rules governing their visibility on the job. Because the NFL is arguably “private,” this does not raise constitutional issues, but using police “experts” involves the government and there may be collateral consequences.

 

NFLbagIn other NFL news, the League is also concerned  with its fans’ bags.  New size restrictions for handbags are in effect, but HuffPost writer Kimann Schultz says they are so small as to be impracticable or even unavailable. Season ticket holders received a clear plastic bag for their use, expanding an already intrusive bag search to make the contents visible to all, all the time. Schultz concludes: “I encourage the NFL to consider the reality of both retail availability for women when calculating these dimensions and practical application of the few items we have a right to carry with discretion….”  Again, because it is a private forum – – – although stadiums are often heavily financed by governments – – – constitutional questions will remain in the background.  But perhaps there could be a sex discrimination claim?

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Nude Toddlers

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Coppertone_sign_miamiAre toddlers on the Jersey Shore at risk of arrest for public nudity? Trentonian columnist Jeff Edelstein thinks so. As he tells the story, Edelstein and his wife, after a visit to the beach at Spring Lake, New Jersey, removed the bathing suits of their two- and four-year-old children at the public shower. A “beach supervisor” called the police, who let them leave with a verbal warning. 

While some public nudity laws have age limits, those in the town of Spring Lake do not. It may seem unlikely that a toddler (or her parental accomplice) would be arrested for public nudity, but, as Mr. Edelstein and some Internet commenters observe, such laws can be used to enforce social mores or even harass outsiders.

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Color-Coded Dress for Prisoners

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orangeThe Columbian of Clark County, WA, provides an overview of the county’s prison dress code. Inmates receive color-coded uniforms, including:

  • Orange for “violent or unruly” behavior;
  • Blue for a “low threat,” misdemeanor, or nonviolent felony charge;
  • Green for “suicide” watch and for those charged with murder.

The color-coded uniforms are meant to provide “security, order, and frugality.” They also, of course, provide an easy visual shorthand for guards and other inmates to make quick judgments about “their character, how they’re behaving and what their charge is,” as the former prison chief explains. 

The article makes the observation that these prison uniforms were introduced to reflect the rehabilitation goal of criminal law, and to remove the “stigma of incarceration” associated with the old black-and-white striped uniform.

Skeptics may recall the recent practice of Sheriff Joe Arpaio of Maricopa County, AZ, who required some prisoners to wear pink underwear as a form of punishment, discussed along with the constitutional issues around prison dress here.

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Protection for Religious Clothing in Public Schools?

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A_Modern_Village_School-_Education_in_Cambridgeshire,_England,_UK,_1944_D23624Pennsylvania lawmakers have proposed a “Student Religious Liberties Act,” which, among other things, purports to protect the right of public school students to wear “clothing, accessories, and jewelry that display a religious message or symbol in the same manner and to the same extent that a student may wear clothing, accessories and jewelry that display a secular message or symbol.” The bill would require all public schools to implement its policies by January 1, 2014.

As reported, State Rep. Rob Kauffman (R-Franklin), citing his concern that “religious expression is being abridged” in the United States, says, “It is unfortunate that we can’t always depend on the judiciary to properly interpret the Constitution and protect the rights of our citizens.”

First Amendment doctrine would seemingly already protect student religious expression in clothing.  However, the bill may be viewed as part of a larger trend of attempts to “protect” religious expression, including in arguments against same sex marriage and insurance coverage for abortion. The Republican-majority Pennsylvania Assembly has passed a number of bills, including an ACLU-opposed resolution recognizing “National Fast Day” and a ban on abortion coverage in state health insurance exchanges.

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Confederate Flag Attire and School Dress Codes

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HERITAGE NOT HATE.  That was the slogan accompanying the Confederate flag reportedly worn  by students at Nixa High School, in Nixa, Missouri to a Board of Education meeting.  The students were protesting the school dress code provision:  “Clothing with racially inflammatory or verbally harassing material such as Confederate flags or swastikas shall not be worn.” One parent said the shirts were about “Dukes of Hazzard-style stuff” rather than “hate crimes,” while two students spoke about racially-motivated bullying at the school.

The board retained the ban.

Confederate_Third_National_Flag_-_CanceledMany courts have ruled on the constitutionality of school dress codes banning confederate flag attire. The Fourth Circuit recently ruled on the constitutionality of school bans of clothing depicting the Confederate flag in Hardwick v. Heyward. In that case, a student repeatedly wore various shirts depicting the Confederate flag, including one depicting the flag flying on the South Carolina capitol grounds. Her South Carolina school banned student dress that could “cause disruption,” interpreted to include images of the Confederate flag, and she was disciplined for violating the dress code. The student and her parents sued, claiming violations of her First Amendment rights to free speech and expression, and her Fourteenth Amendment rights to due process (for an overbroad and vague dress code) and equal protection (banning Confederate flag shirts but not other “racially themed” shirts).

The court applied the Tinker substantial disruption standard in upholding the ban, as have other circuits faced with the issue in recent years. The court looked at evidence of racial tension in the school, including past incidents involving depictions of the Confederate flag and during the 2000 South Carolina debate about the flag displayed on its capitol dome, and concluded that “school officials could predict that the Confederate flag would cause a disruption.” It further ruled that the ban was not overbroad or vague and, because it found the dress code to be viewpoint neutral on its face and its enforcement to be viewpoint neutral, it found no violation of equal protection.

 

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