Hair, “The American Tribal Love-Rock Musical,” came to the stage recently at the Hoogland Center for the Arts in Springfield, Illinois. As reported, the musical was presented complete with a “controversial nude scene.” Director Jen Wallner reportedly included the scene because it shows vulnerability: “They’re showing themselves for everything they have, just like the hippies did.”
While this particular production does not seem to have garnered the attention of concerned citizens, as did a recent production of Love! Valour! Compassion! in Grand Rapids, Michigan, the musical has had its share of controversy, resulting in the 1975 Supreme Court decision in Southeastern Promotions, Ltd. v. Conrad. There, municipal authorities in Tennessee, seeking to safeguard the “best interests of the community,” denied an application to produce Hair. As discussed in Dressing Constitutionally, while the promoters of Hair won their case, the Court avoided deciding on the constitutionality of applying nudity and obscenity laws to the musical. Several months after Southeastern Productions, the Court in Erznoznik v. City of Jacksonville, applied First Amendment protections to expressive nudity against a local ordinance prohibiting the display of nudity in films shown at drive-in theaters.
Dressing Constitutionally explains the Court’s separation of nudity from obscenity in cases such as Miller v. California and Erznoznik, and identifies the areas where continued government regulation of nudity in artistic productions is possible: in otherwise regulated mediums, like television; when regulation occurs in a government funding scheme, as seen in the Love! Valour! Compassion! situation; and when the regulation targets the “secondary effects” of the nudity.
Last week, high school administrators suspended a transgender student, Staceyy Holidayy, for wearing a shirt that violates the girls dress code, despite allegedly forbidding her from also using facilities designated for female students.
As reported, Staceyy purposely violated the dress code by wearing a backless top to bring attention to the administration’s inconsistent treatment of her gender identity. She told reporters, “I don’t know how they can suspend me because I broke rules for girls when I can’t use the girls restroom or locker room.”
The administration disputes Staceyy’s claims, telling reporters it was agreed that Staceyy would use the nurses office for the restroom and changing. They thought it would be “safer” for her to do so rather than use the regular facilities.
The administration also assured reporters that it adheres to California’s legal requirements in place to protect transgender students. However, Staceyy alleges that she was not given a choice in the matter. Thus, the arrangement may violate the law’s requirement that a student “be permitted to … use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”
Signed into California law just last August, the School Success and Opportunity Act, or AB1266, requires a school to allow a student choice in gendered assignments like restrooms, classes, and sports teams. Despite the need to protect LGBTQ youth from institutionalized bullying, the law is under threat as anti-LGBTQ groups successfully organize for its repeal.
For transgender students, ascertaining equal protection and relief via constitutional means is not a guarantee and indeed, such avenues can take years and can be immensely expensive. With affirmative legislation like California’s law, however, a student may be afforded protection and more effective means for recourse. Indeed, in Staceyy’s case, the administration is quick to discuss its compliance with AB1266 in its accommodations for Staceyy.
As far as the suspension goes, however, AB1266 has little to say. Some commentators have lauded the administration’s recognition of Staceyy’s gender by enforcing the girls’ dress code against her (though one wonders whether it is generally so strictly enforced). But regardless of gender identity, the fact that any student is suspended for two days over an arbitrary dress code violation leaves little room for applause.
According to a report in the Sun Sentinel by Lisa J. Huriash relying on a police report, a “North Miami Beach police officer has been arrested, accused of refusing to take off a mask he wore while on the street protesting the federal government’s new healthcare law.” The protesting police officer interestingly adopted the Guy Fawkes mask (pictured below) made popular during Occupy protests, as a symbol.
Guy Fawkes Mask
According to the police report, the protesting police officer wouldn’t tell police who he was, “stating his anonymity was his cause, thus the mask. … He stated the mask was used by movement groups around the world for protest.” He was also carrying a gun, but was charged only with obstruction of traffic and “wearing a hood or mask on the street.”
The charge may be a difficult one to make stick. Florida’s anti-masking laws derive from attempts to criminalize KKK activities and are thus linked to intimidation and civil rights violations.
Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.
BUT, another Florida statute, §876.155 limits the provisions the various anti-masking statutes, stating these statutes will apply only if the person was wearing the mask, hood, or other device:
(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;
(2) With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the person’s exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;
(3) With the intent to intimidate, threaten, abuse, or harass any other person; or
(4) While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.
The Florida statutory scheme could certainly be construed to include the protesting police officer’s acts under subsection (4) above, given that he stated he was trying to avoid identification (to protest anonymously) and that he was reportedly charged with another violation (obstructing traffic).
Constitutionally, the protesting police officer could also challenge the charge as a violation of the First Amendment. The likelihood of success on the challenge is mixed, a subject I discuss in the book, Dressing Constitutionally.
As the holiday season begins, retail stores vamp up to sell merchandise to crowds of shoppers, but also to stop shoplifting. Retailer, Hot Mama, is in hot water for its particularly aggressive anti-theft policy, which has employees racially profiling customers according to the ACLU of Colorado.
Hot Mama is a large nationwide retailer, selling women’s clothing in over 40 stores and online. Their anti-theft policy tells employees to identify a potential shoplifter if “a customer that doesn’t look like the typical Hot Mama shopper.” Once identified, the employee should “stick to potential thieves by following them everywhere in the store. Make them feel uncomfortable. Ask questions.” The policy warns that,
“Shoplifters will try to make YOU feel uncomfortable. They may say: ‘Are you following me because of my race?’ Please respond: ‘We like to give each customer one-on-one service.’ Don’t worry about making them uncomfortable. That is your goal in this situation. The more uncomfortable they become, the quicker they leave…forever.”
“The curious phrasing of this description of a ‘potential thief’ suggests that it is a subtle coded encouragement of racial targeting. Who is and who is not a ‘typical Hot Mama shopper’? A review of Hot Mama’s website, which features an overwhelming proportion of white women modeling the clothing, suggests the answer. The price point of the clothing, along with the dearth of models of color on the website, suggests that Hot Mama regards its ‘typical Hot Mama shopper’ as an upper-middle-class white female, and that it is persons of color who are more likely to be identified as ‘potential thieves’ on the ground that they don’t ‘look like the typical Hot Mama shopper.’”
Moreover, the ACLU notes that the policy’s acknowledgement that customers will ask if employees are racial profiling creates a suggestion for employees to do so. The ACLU also references a Hot Mama manager who questioned the racialized policy and was told that some stores had “problems with black gangs.” Saying the policy is in violation of federal and state law, the ACLU adds that the policy “creates an environment in which people of color will be followed, intimidated, and have their rights violated when attempting to shop at Hot Mama.”
The ACLU’s action against Hot Mama is not isolated — just in October, both Barneys and Macy’s made news and faced lawsuits for alleged racial profiling to mitigate shoplifting. The Macy’s suit includes allegations against the NYPD for their role in the shoplifting prevention operation, creating clear state action for a possible Equal Protection challenge.
As the holiday shopping season begins, hopefully stores will learn from these mistakes and make sure to prevent theft with a non-racialized means, implementing policies that do not disproportionately impact shoppers of color. It may be wise for businesses to avoid policies that give an employee the goal of making a customer so uncomfortable that she will “leave … forever,” when the customer asks whether she is profiled for her race. Indeed, such strong language leads one to wonder whether the policy is meant to prevent theft, or to prevent certain groups from shopping at their stores and from wearing their clothing.
For some, this (re)opens the issue of the trial for the death of the 15 year old Martin. This includes pundit Geraldo Rivera, who famously blamed Trayvon Martin’s “hoodie” and continues to do so. Rivera writes that although Zimmerman
may be nuts now, but was he nuts then? That’s the bigger issue, whether he is crazy because of the trauma of Trayvon’s death and his trial and being broke and besieged and aimless or was he crazy the night he killed the kid?
This seems within the realm of possibility. However, the validity Rivera’s obsession with Trayvon Martin’s hoodie as “thug wear” seems less plausible, arguing that even if Zimmerman did not act in self defense but was
a hunter looking for game that night, picking a fight because with his hand near that concealed weapon ready to draw and fire he knew he had the advantage, the verdict would have been closer.
Still, he would have been acquitted, because of the hoodie.
As I argue elsewhere, hoodies are ubiquitous items of clothing having no connection with the propensity to commit violence.
Earlier this month, an 18 year-old transgender student fought and won a battle to wear a tuxedo in his yearbook photo, despite his school’s initial reaction that the photograph would not conform with “community standards.”
As reported, the South Texas school refused to allow high school senior Jeydon Loredo to wear his tuxedo in his senior photograph because “they were a conservative school” and as a consequence, his “photograph would be included only if he wore feminine attire, such as a drape or blouse.” As discussed in Dressing Constitutionally, yearbook photos have frequently been a locus for regulating students’ gender expressions, but the administration’s reasons often do not justify their actions because of First Amendment and Equal Protection Clause protections.
Joining Jeydon and his family, the Southern Poverty Law Center wrote the school district officials a demand letter, describing how the refusal to include the photograph “violates the student’s freedom of expression, which is protected by the First Amendment. It also violates the Equal Protection Clause of the 14th Amendment, which protects the student from discrimination, as well as Title IX, which bars discrimination on the basis of sex by any education program receiving federal money. Refusing to publish the photograph would even violate the school district’s own anti-discrimination policies.” The Center then threatened a suit against the District if they did not make a decision to include the photograph of Jeydon in the tuxedo within eight days.
But as the Center said in a recent Press Release, the District allowing the photograph is much larger than just the best interest of Jeydon and the community — it sends the message “that transgender students should be recognized as important members of their communities rather than ostracized and subjected to discrimination.”
School officials have suspended an eighth grader at Anderson County Junior/Senior High School after he refused to remove his Vera Bradley “purse.” Skyler Davis, 13, was reportedly called to the Assistant Principal’s office and told to either remove the bag or face suspension. Davis refused, and the school sent him home.
As we have seen in othersituations, timing and shifting rationales are suspicious factors in this dress code enforcement. According to Davis’s outraged mother, Leslie Willis, he had been wearing the bag since August without issue. Meanwhile, Anderson County School District Superintendent Don Blome explained the rule: “all students, whether male or female, are prevented from having bags, purses, satchels and backpacks in the core classrooms like English and math.” No gender discrimination here! All bags are banned equally. Davis’s mother, meanwhile, insists that the student handbook contains no mention of bags or purses, noting: “Skyler has been going to school since August with that same Very Bradley bag on, hasn’t taken it off. What is the problem?”
Perhaps the problem had nothing to do with the bag. With his mother’s support, Skyler returned to school, wearing the bag, and was again suspended. This time, school administrators reportedly told him he had never been suspended for wearing the bag, but in fact for “foul language.” Willis says she was told that “the suspension wouldn’t be lifted until Skyler stops wearing the purse.”
A few constitutional issues are raised here: gender discrimination (girls can wear purses; boys cannot) and freedom of expression (Davis claims to express himself through his bag). The school might counter by showing a rule of equal application to female and male students and, as explained in Dressing Constitutionally, “[attire] bearing words or symbols is much more likely to meet the expressive threshold necessary to invoke First Amendment protections.” Davis, however, might note how enforcement of a dress code often serves as a proxy for enforcement of expressive and gender norms. And a hopeful sign: the support of his mother and many others, including Vera Bradley. Perhaps sensing opportunity, the company has offered Davis words of support — and products.
The controversy surrounding celebrity rapper Kanye West’s adoption of the Confederate flag for his new tour is expertly analyzed by Elon James White in his article in his article in The Root and there has been a call to boycott the tour gear.
But what if a student wanted to wear Kanye West attire to school, perhaps accepting West’s articulation about the symbol’s meaning?
Kanye West notwithstanding, the school can most likely constitutionally prohibit the student from wearing Confederate flag gear. Here’s my recent column for the London School of Economics blog, and we’ve previously covered the Confederate flag issue here and here.
There is continuing controversy regarding law enforcement’s implementation of stop-and-frisk in racially discriminatory ways. Regarding NYC’s highly publicized practices, a federal district judge’s decision to enjoin the current practices was not only stayed by the Second Circuit, but the judge herself removed from the case, a removal which is being challenged. Meanwhile, with the election of a new mayor in New York City, the litigation may be moot.
But whatever happens, there are certainly conversations about the possibilities of racially neutral criteria to support the “suspicion” constitutionally required by Terry v. Ohio under for stop and frisk. Many seemingly neutral criteria are in fact racial (and gendered) criteria. This includes clothes.
suspect attire mixes with race, gender, and age into a combustible cocktail targeting young men of color. The most explosive element is the racial one, for focusing on people based upon their race violates our basic understandings of constitutional equality. Current constitutional doctrine of equal protection, however, generally allows a racially disproportionate impact if there is no intent to be racially discriminatory. Enter clothes as convenient camouflage. Or, as one court phrased it, “although the prosecutor may have a bias ‘against people who sag,’” that does not mean the prosecutor’s exclusion of the juror was “based on race.”
Because, let’s be honest,
it is not every single person in a hoodie, in saggy pants, or in an university sweatshirt who merits suspect status. Indeed, the hooded sweatshirt has been around since the 1930s, was arguably popularized by the Rocky movies beginning in 1976 in which a boxer played by white actor Sylvester Stallone wears a hooded sweatshirt, and has been adopted and adapted by skaters, grunge artists, Facebook billionaires, and hip-hop culture. Saggy pants are often argued to have their source in the no-belt prison environment, but as white singer, model, and now actor “Marky” Mark Wahlberg demonstrated in the early 1990s with the Calvin Klein ads, fashionable underwear was meant to be seen, even while wearing pants. Today, it’s rare that underwear for men does not boast at least a waistband that is more than suitable for exposure. And as for clothes with university or pro-team logos, a visit to most colleges or to an NFL football game quickly demonstrates the popularity of these lucrative lines of apparel.
Let’s not allow attire to be a seemingly neutral rationale for masking other stereotypes. After all, as Dressing Constitutionally shows again and again, what we’re wearing is rarely, if ever, neutral.
The Supreme Court has, without comment, declined to review the Fourth Circuit’s ruling in Hardwick v. Heyward. We previously discussed the case, where then-high school student Candice Hardwick repeatedly violated her high school’s dress code by wearing various Confederate flag t-shirts. The Fourth Circuit applied the Tinker substantial disruption standard, looking at evidence of racial tension in the school and past incidents involving displays of the flag (including on South Carolina’s state capitol grounds), concluding that “school officials could predict that the Confederate flag would cause a disruption.”
Hardwick appealed the Fourth Circuit’s March ruling. As reported, her attorney Kirk D. Lyons of the Southern Legal Resource Center (SLRC) had this to say: “The school and the courts will not respect your children’s inalienable rights to proclaim and be proud of their Southern Heritage [sic], and in all areas of traditional culture it will only get worse!” The SLRC, while proclaiming to defend the “legal and civil rights of all Americans,” is especially concerned for “America’s most persecuted minority: Confederate Southern Americans.”
Bemoaning the “fall” of Tinker, SLRC makes note of some other shirts banned in Hardwick’s high school: “t-shirts declaring ‘I AM BLACK,’ images of ‘controversial figures’ such as Malcolm X and Bob Marley, as well as displays declaring pride in differing sexual orientations.” Despite the odious source (and the dubious claim of concern for everyone’s rights), one is reminded that the First Amendment permits a wide range of speech, and the legal debate around what messages and images are allowed in public schools is worth having. The Tinker standard and the clash of school discipline and free expression are discussed in the Dressing Disruptively chapter of Dressing Constitutionally.
Hair, “The American Tribal Love-Rock Musical,” came to the stage recently at the Hoogland Center for the Arts in Springfield, Illinois. As reported, the musical was presented complete with a “controversial nude scene.” Director Jen Wallner reportedly included the scene because it shows vulnerability: “They’re showing themselves for everything they have, just like the hippies did.” 
![via]](http://commons.wikimedia.org/wiki/File:BrAdeH.jpg){kind=link}