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 Army passed controversial new rules for soldiers’ tattoos, hair, and grooming standards. The Army Times reports that the stricter guidelines are a response to 
the past decade’s crunch to get soldiers, allowing in persons with visible tattoos and other appearances that would otherwise offend the Army’s ideals of professionalism.
The current soldiers whose tattoos violate the new policy will be grandfather in, unless the tattoo is sexist, racist, or extremist. Not surprisingly, no definition of what a sexist, racist, or extremist tattoo is given, though Army Sargent Major Ray Chandler opined the majority of soldiers’ tattoos are not those.
The regulation also caused controversy over new guidelines for women’s hair, which many contend are racially biased against soldiers who are women of color. Publishing guidelines with pictures to clarify the policy, the regulation bans various twists, braids, and cornrows, and completely forbids dreadlocks, which Sargent Jasmine Jacobs of the Georgia National Guard says “offer little to no options for females with natural hair.” Finding other avenues to garner change unsuccessful, she started a White House petition that calls the policy “racially biased” and says “the lack of regard for ethnic hair is apparent.” She poignantly told reporters, “I’m disappointed to see the Army, rather than inform themselves on how black people wear their hair, they’ve white-washed it all.”
With similar sentiment, the Women of America’s Congressional Black Caucus (CBC) issued a letter to the Secretary of Defense. They called the changes “discriminatory rules targeting soldier who are women of color with little regard to what is needed to maintain their natural hair.” The letter adds, “the use of words like ‘unkempt’ and ‘matted’ when referring to traditional hairstyles worn by women of color are offensive and biased.”
With such strict rules for tattoos and racially charged hair policies, the new changes raise various First Amendment and equal protection considerations — however, any such challenge risks being unsuccessful because of strong deference to the Army. For example, the 1986 opinion in Goldman v. Weinberger, extensively discussed in Dressing Constitutionally, involved a soldier wearing a yarmulke and the Supreme Court deferred to the military prohibition. Congress later altered the law. Thus, pressure from the CBC and activism from within the ranks might prove more fruitful to changing the present benighted policy.
On his blog, Hercules and the Umpire, United States District Judge Richard George Kopf, writes:
True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.
In a recent case involving this fine young lawyer every female law clerk in the building slipped in and out of the courtroom to observe her. I am not exaggerating. I later learned that word had gotten around about this lawyer’s dress. Acknowledging that the lawyer was really good, the consensus of the sisterhood was uniformly critical. “Unprofessional” was the word used most often. To a woman, the law clerks seethed and sneered. They were truly upset.
From the foregoing, and in my continuing effort to educate the bar, I have three rules that young women lawyers should follow when considering how to dress for court:
1. You can’t win. Men are both pigs and prudes. Get over it.
2. It is not about you. That goes double when you are appearing in front of a jury.
3. Think about the female law clerks. If they are likely to label you, like Jane Curtain, an ignorant slut behind your back, tone it down.
The blog post is entitled “On being a dirty old man and how young women lawyers dress.”
Judge Kopf is responding – at least in part – to a recent post on Salon.com, Amanda Hess, Female Lawyers Who Dress Too “Sexy” Are Apparently a “Huge Problem” in the Courtroom, Slate (March 21, 2014).
But it would seem that it’s Judge Kopf who is part of the “huge problem,” although note that he does try to shift some of the responsibility to women and the ways they police professional attire among themselves.
This title from Jezebel says it all:
“Yet Another Law School Lectures Women on How to Not Dress Slutty.”
The article is worth a read.
Although it’s not only law schools that concentrate on female attire, as the origins of “slutwalk” demonstrate; more discussion in Dressing Constitutionally.
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In response to increasing complaints about dress- and appearance-based religious workplace discrimination, the Equal Employment Opportunity Commission has released new guidelines for employers to insure compliance with laws protecting religious garb and grooming. The guidelines include a question-and-answer sheet on rights and responsibilities and a fact sheet on the applicable law. As reported, EEOC spokesperson Justine Lisser attributed the new guidance to a “persistent uptick in religious discrimination charges” and said the EEOC is responding to religious groups, who “asked for more EEOC outreach in this area.”
Title VII of the Civil Rights Act of 1964 protects against discrimination based on religious dress and grooming. According to the EEOC press release, Title VII-covered employers “must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer’s business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.” Underlying this new discussion of existing protections and new guidelines is the fact that, according to the press release, complaints of religious discrimination have more than doubled since 1997.
We have reported on dress- and grooming-based job discrimination and policy changes over the past year (here concerning hijabs at work, here at the Pentagon, here on the costs of litigating these issues, and here concerning gendered hair policies) and more examples of religious discrimination are noted here. Constitutional protections for religious dress and grooming in a variety of settings are discussed in the Dressing Religiously chapter of Dressing Constitutionally.
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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.
How “professional” should the President on the United States dress when he’s on the telephone to another world leader discussing a crisis?
According to the Daily News: “On Saturday, the President spoke with Putin for 90 minutes after Russian troops entered the Ukraine’s Crimean Peninsula, but many detractors took to social media to rebuke his informal attire.”
Kim Brooks, in her review of Dressing Constitutionally, over at Jotwell:
One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.
Dean Brooks (and her hair) pictured below:
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.
Kansas state representative Peggy Mast (R-Emporia) recently proposed a comprehensive code of dress and conduct for legislative interns. As reported, the code would have required a very specific look for the “ladies” and “gentlemen” of the incoming class of interns. Violations of the proposed would lead to dismissal.
Women would have to wear business or “dressy” attire, and avoid, amongst other items, “skirts/pants that are too tight, skinny dress pants and revealing necklines.” Men would be required to wear a suit or other business appropriate dress, and abide by various hair restrictions: clean, neat hair without “over-the-top colors,” and either very short or no facial hair. Further, only women could wear earrings (and only one in each ear), and interns could have no visible tattoos and would have to remove all other piercings.
The reason for these detailed restrictions? While the code is apparently in response to “a few complaints about decorum,” Representative Mast is also reportedly concerned with the inner lives of interns: “We want to set it up so they can take pride in the position they hold. Hopefully, they’ll benefit from it.”
However, one wonders how stripping persons of their self-expression and enforcing rigid conformity will result in pride or benefit. The linking of “pride” and “benefit” to a dress code obscures the underlying assumptions about what kind of people take “pride” in their work, and the limitations on access to intern positions that might arise from forcing participants to purchase and wear potentially expensive clothing.
Luckily, the proposal did not find support among Kansas lawmakers, and the rules were “edited out” of the legislative intern guide. The dress of interns remains at the discretion of individual lawmakers, at least some of who will not “worry about facial hair, tattoos, and piercings.”
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