The Blog is now retired.
My posts after May 2014 on issues of “dressing constitutionally” can be found over at Constitutional Law Professors Blog and at the CUNY Academic Commons.
The posts from May 2013 – May 2014 remain available and searchable.
Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via
The killer in a rampage near Santa Barbara, California left behind writings and videos expounding upon his hatred for women and his desire for retaliation.
Although the killer has been the subject of more than a few admiring posts, as part of the discussion of misogyny, the usual explanation seemed to be “not all men” are like him. This was countered by a “yes all women” reply on twitter, the notion being that while not all men are guilty of misogyny, all women experience it. The “Yes All Women” hashtag quickly gained prominence, with women providing experiences and observations, with some support and some criticism from tweets seemingly from men.
Perhaps not surprisingly, more than a few tweets describing women’s experiences focused on the same issues discussed in the “dressing provocatively” section of Dressing Constitutionality. Here is a small sampling of the tweets:
https://twitter.com/FlawlesslyLily/status/470587852469063680
#YesAllWomen because too many of us were brought up to believe that "What were you wearing?" is a reasonable question.
— andi zeisler (@andizeisler) May 24, 2014
#YesAllWomen because at my school, taking non-consensual up-skirt photos is a lesser crime than wearing a skirt that is deemed 'too short'.
— Jessica Diamond ♿ (@JessicaXDiamond) May 25, 2014
https://twitter.com/arcticmikeys_/status/470589845560385537
https://twitter.com/nuclearseasons/status/470612053301157888
Because @TorontoPolice cop actually said "women should avoid dressing like sluts" if we don't want sexual attention!" #YesAllWomen #SLUTWALK
— WheezySmurf, History Ninja (@snoopmary) May 25, 2014
#YesAllWomen because I have to attempt to explain to my 11yr old daughter why the school dress code is fixated on what girls can't wear.
— JR (@femhist8) May 25, 2014
#YesAllWomen because my school has a dress code used in order to avoid attention from male teachers
— Rebecca Jane (@Writer_X9) May 25, 2014
Because my daughters school has decided to create a dress code based on how "distracting" it is for the boys. #YesAllWomen
— @boopumpkins (@boopumpkins) May 25, 2014
Because a college professor once "joked" that he'd give me an A if I wore a short skirt and sat in the front row. #YesAllWomen
— Nancy Laichas (@nancylaichas) May 25, 2014
https://twitter.com/feministabulous/status/470420239663251456
https://twitter.com/littlebbygirl/status/470365909878865920
The Classical Academy High School, a Colorado public charter school, has required one of its students to cut his hair, despite a “senior contract” creating a “hairstyle exception” for the school’s graduating seniors. As reported, the senior class can negotiate a contract with the school administration to get certain perks. This year’s contract included a dress code exception, which promised “no gender restriction on hairstyle or length.” The school’s dress code, which requires uniforms and emphasizes modesty, typically requires a boy’s hair to be no longer than the bottom of the ears on the sides and no longer than the bottom of the collar in the back.”
Senior Charlie McGrath grew his shoulder-length hair in reliance on the dress code exception, but was later told he would have to cut it “in front of the entire senior class.” According to his mother, school officials said “they did not want to see a student like Charlie walk across the stage (at graduation); it’s not their image.” Charlie missed four days of school during a “conflict resolution process” and appeal to the local school board, but then cut his hair and returned because of a potential risk to his timely graduation.
While this story is yet another example of a school using its dress code to enforce certain norms, the linked article highlights difference between public charter schools and what it calls “traditional” public schools. The Colorado Safe Schools Act, in section 2(a)(J) requires a school district to establish a “dress code policy that prohibits students from wearing apparel that is deemed disruptive to the classroom environment or to the maintenance of a safe and orderly school. The dress code policy may require students to wear a school uniform or may establish minimum standards of dress.”
Charter schools that operate independently of “traditional” public schools can set their own, stricter dress codes. As reported, Stacy Rader, the Colorado League of Charter Schools spokeswoman, said “It could be argued that this is the beauty of school choice because families can select whichever public school – charter or traditional – that best fits their learning style and family priorities.”
The choice of a stricter dress code is, of course, only one small facet of the complex debate about school “choice.” It does, however, hint at the elitist, classist values behind some not-quite-public charter schools that want to portray a certain image of the modest and uniformed young man or woman. One supposes those who don’t fit the image can simply choose a “traditional” public school.
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In the high-profile criminal trial of Cecily McMillan for assaulting a police officer, perhaps in connection with Occupy Wall Street, McMillan reportedly claims that a police officer grabbed her breast causing bruising. Given this claim, spectators in support of McMillan were reportedly “wearing a pink hand over their right breast” and instructed by the judge that they could not so during the trial.
The banning of spectator symbolic speech, such as a graphic symbol, by a judge raises the specter of a First Amendment claim. In some cases, this First Amendment claim must be weighed against a criminal defendant’s Sixth Amendment right to an “impartial jury.” As I explored in Dressing Constitutionally, one such case is Carey v. Musladin, in which spectators were wearing buttons with pictures of the victim. Although the 2006 opinion in Carey was procedural, Justice Souter concurring wrote to express his view that the First Amendment interests of the spectators was not “intuitively strong.” In a New York case, involving wearing corsages to support the victim, a trial judge stated that while free expression was at the “very core of our organized democratic society,” it had no place in the courtroom, a “holy shrine of impartiality” that was clearly committed to special and defined purposes and not the “airing of general grievances.”
Yet when the support is for the defendant and thus would not interfere with the defendant’s right to an impartial trial, the support for the banning of symbolic speech is shakier. One example is especially striking. In the high profile ‘Central Park Jogger’ criminal prosecution, the trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’” As it turns out, that sweatshirt was right.
The better view is to allow a spectator’s First Amendment rights to symbolic expression when it does not impair the criminal defendant’s right to an impartial trial.
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This one is from the Jefferson Davis Parish in Louisiana. Named after the President of the Confederacy, the parish has now reportedly adopted a municipal ordinance banning “saggy pants” including showing underwear. (The Jefferson Davis Parish municipal code is only current to December 2013).
Such a ban is most likely unconstitutional – – – especially if it criminalizes the showing of “underwear.” It can also be a masquerade for racially discriminatory policing.
There’s more on the unconstitutionality of criminalizing “saggy pants” in Dressing Constitutionally including cases in which courts have held such laws unconstitutional under the Fourteenth Amendment’s Due Process Clause and the First Amendment. In the same chapter, there is also an extensive discussion of prohibiting the wearing of the Confederate flag.
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The Seventh Circuit’s opinion in Hayden v. Greensburg Community School concluded it was unconstitutional for a school to require boys — and not girls — to have short hair to play on the basketball team.
As reported, Greensburg Community School allows a coach to decide a team’s hair policy. In the case challenged here, a coach had an unwritten rule that a student on the boys basketball team must have hair “cut above the ears, eyebrows, and collar.” This was to “promote team unity” and “project a ‘clean cut’ image.”
But one student cut his hair to play on the team and then “‘didn’t feel like himself’ with the short haircut,” so his parents challenged the policy in court. They argued that the short hair policy “arbitrarily intrudes upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, [and] because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination” in violation of the Equal Protection Clause and federal law.
The court denied the due process claim, rejecting “the notion that one’s hair length is an aspect of personal liberty so important that it constitutes a fundamental right.” On the sex discrimination claim, however, the Court found the policy unconstitutional. As discussed in Dressing Constitutionally, courts tend to give a weighty deference schools’ pedagogical interests when it comes to student dress codes. Nevertheless, in this case the Seventh Circuit required that the school provide an “exceedingly persuasive” justification for the explicitly gendered policy. Unconvinced by the school’s reasoning, the Court ultimately declared the policy unconstitutional “because the hair-length policy on its face treats boys and girls differently, and because the record tells us nothing about any comparable grooming standards applied to girls playing basketball.” The Court implied that the school could still ban “an Age-of-Aquarius, Tiny-Tim, hair-crawling-past-the-shoulders sort of hair style” for boys if it so wanted — in the meantime, the school cannot force all boys to have a crew cut.
Concurring and dissenting in part, one judge of the three judge panel disagreed with the finding that the school had no comparable standards for girls. He argued that the school showed a general hair policy applying to both boys and girls, banning things like mohawks 
and promoting professionalism — if the “policy applies to both men and women, the fact that it has different provisions based on different social norms or community standards for men and women (or based on different athletic traditions) is acceptable. Distinction is not discrimination.”
Indeed, both the majority and dissent suggest that a change in social norms of boy’s hair is determinative of whether the policy is valid, making a policy that might have been perfectly constitutional just ten years ago now unconstitutional solely because of a shift in cultural perceptions of acceptable gender presentation.
As discussed in Dressing Constitutionally, in earlier decades, the United States Supreme Court refused to grant certiorari in at least nine male hair length cases involving students, often over a dissent by the cantankerous and controversial Justice Douglas if the Circuit Court had found the school policy constitutional. It seems hair length for boys remains a constitutional issue.
It was a partial ban, to be sure: some students on a particular day.
In its opinion in Dariano v. Morgan Hill Unified School District, the Ninth Circuit rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration. Affirming the district judge, the panel applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) to the First Amendment claims, distinguishing Tinker.
While school dress codes and their application can raise grave constitutional concerns, the context as the court explains it here seems to warrant the tailored of school officials, American flag or not.
More of my analysis of the opinion over at the Constitutional Law Professors here.
And lots more about school dress codes in Dressing Constitutionally.
The Ninth Circuit Court of Appeals ruled last week that strict scrutiny should apply to a school uniform that “compels” speech with an emblazoned motto. Roy Gomm Elementary School in Reno, Nevada, instituted a policy in 2011 that would have required students to wear a polo shirt with the phrase “Tomorrow’s Leaders” on the back. An exception provided for uniforms of “nationally recognized youth organizations” if worn on meeting days. Mary and Jon Frudden filed suit, alleging, amongst other claims, a violation of their childrens’ First Amendment right to free expression.
The United States District Court for the District of Nevada dismissed the Fruddens’ First Amendment claim, applying the Ninth Circuit’s rule from Jacobs v. Clark County School District. In Jacobs, the Ninth Circuit upheld a school uniform requirement, noting that “the proper standard for a viewpoint- and content-neutral dress code is intermediate scrutiny: (1) the code must further an important or substantial government interest; (2) the governmental interest must be unrelated to the suppression of free expression; and (3) the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest.” The district court found that the presence of the motto, while “a slightly more complex question of compelled-speech and whether the policy is viewpoint- and content-neutral,” was not so substantial a distinction to rise to the level of a First Amendment violation.
The Ninth Circuit disagreed, holding that requiring children to wear a uniform with the motto “Tomorrow’s Leaders” “compels children to express a particular viewpoint.” Distinguishing Jacobs, where the uniforms featured no “written or verbal expression of any kind,” the court emphasized that the Roy Gomm uniforms “mandate written expression.” The court further found that the “nationally recognized youth organization” uniform exception was content-based, ignoring, for example, locally- or regionally-recognized youth organizations. Both the compelled written expression and content-based exception require a standard of strict scrutiny, and the Ninth Circuit remanded the case back to the District Court. With such a difficult standard to meet, schools considering uniform policies in the Ninth Circuit may want to take note.
The Pensacola anti-camping ordinance is being called an anti-blanket ordinance that operates to prevent the homeless from using a blanket or other means to keep themselves warm.
While blankets may not be expressive and thus within the First Amendment – – – as I analyze over at the Constitutional Law Professors Blog here – – – there should be equality concerns. Or, as the petition directed against the ordinance contends, humanity concerns.
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The killer said he feared the victim
was armed “because his pants were falling down” and his hands were in his hoodie pockets.
Reporters Jeff Weiner and Arelis R. Hernández in the Orlando Sentinel describe a killing and claim of self-defense in Florida today, raising similarities to the controversial acquittal of George Zimmerman for the killing of Trayvon Martin using Florida’s “stand your ground” self defense standard.
The victim’s hoodie or sagging pants should not be considered as evidence of violence. We should not be “profiling clothes.” This includes hoodies and this includes “saggy pants.”
There’s more discussion of the legal consequences of sagging pants, hoodies, “thug wear,” and government’s attempt to regulate what we wear by indirect and direct means in Dressing Constitutionally.
But this is certain:
No one deserves to die for what he or she is wearing. And the law should never suggest otherwise.
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