By Ruthann Robson
Los Angeles Times
NEW YORK: Hey kids, what are you going to wear to school today?
A miniskirt? How short? “Sagging” pants: Is that kosher? What about a do-rag? Fishnet tights? Or hoodies, tattoos, sweat pants, frayed jeans, an Afro puff or, if you’re a boy, long locks? How about a breast-cancer-awareness bracelet featuring the word “boobies”?
All of these are real examples of fashion choices that schools across the country have recently attempted to restrict. The wrong choice could get you kicked out of class or suspended; and if you want to fight for your right to a hoodie or a short skirt, you and your parents may have to file suit and head for court.
Your defense would probably be the First Amendment, and the first hurdle would be proving that your desired dress is “expressive.” But courts often decline to find that “mere style” conveys a message, a rather anomalous conclusion given that school dress codes seem predicated on prohibiting styles precisely because they express something: disrespect, sexuality, rebellion or even fashionableness.
Symbols or words on clothes are most likely to clear the speech hurdle; they will then be evaluated against the “disruption” standard articulated by the Supreme Court in the watershed case Tinker v. Des Moines Independent Community School District. Tinker involved students wearing black armbands to protest the war in Vietnam. Borrowing from civil rights cases, the court decided for the protesters: Authorities had to show that speech materially and substantially interfered with appropriate school discipline in order to ban student speech.
Later lawsuits have had mixed results. In a flurry of cases involving representations of the Confederate flag, the courts leaned toward upholding school bans. Students promoting the Straight Alliance (and who donned shirts that proclaimed “Be Happy Not Gay”) were generally more successful, although a few judges thought the message could disrupt gay students’ learning. And just last month, students’ “I (heart) boobies” bracelets were validated by the U.S. 3rd Circuit Court of Appeals: The school in question could not ban an expression that was not “plainly lewd.”
Most school dress codes seek to bar only the most problematic images and words, but some schools try a total ban on images and words on any article of clothing. As it turns out, the stricter a dress code, the better its chances of survival. Claims of discrimination against a viewpoint or group by the school are much more difficult to make in such cases.
For example, a few years ago the U.S. 5th Circuit Court of Appeals upheld a dress code that banned T-shirts with printed messages unless they were approved school-related slogans or logos smaller than 2 inches by 2 inches. When one student eventually chose to wear a shirt emblazoned with the text of the First Amendment, neither the school nor the courts approved it.
School dress codes also raise questions of equality. Gender-specific guidelines for hair, jewelry and cosmetics are being tested, especially by transgender students. Bans on saggy pants or Afro puffs are applied to all students but can be seen as racially biased. Outlawing sweat pants or frayed garments might well have a disproportionate effect, depending on a family’s economic status, although this argument would be more persuasive to a school board making policy than to a court applying constitutional doctrine.
At their heart, school dress codes that go well beyond safety concerns and basic decency rest on the unequal relationships between adults and youth. School officials like to tout the rules as preparation for employment, but those standards are hard to pin down: Billionaire Mark Zuckerberg would be suspended at most schools with detailed dress codes.
Dress codes also hearken back to a time when kings, queens and government councils routinely proscribed all manner of attire, with special attention to prohibiting people of “mean condition” from certain styles — purple, for example, was reserved for royalty. But the English went even further, regulating how frilly men’s collars could be or how revealing their tunics could be. Colonists brought such traditions with them to America. The Puritans prosecuted women who wore lace and Southern colonies included matters of dress in their slave codes.
When we look at school rules in this context, it’s clear they rely on anti-democratic principles. The Supreme Court famously opined in 1925 that the state does not have the power to “standardize” its children, but too-detailed school dress codes seek to accomplish just that.
It’s time for school districts to worry less about student attire. Dress codes may seek to foster an educational environment, but their very existence can divert attention from substantive learning by fetishizing the number of inches between the hem of a skirt and the top of a knee.
There are some common-sense provisions. Gang color restrictions may make kids at some schools demonstrably safer, and general decency rules should apply as they do outside schools. But policing poofy hairdos or the message on a bracelet or the fabric of a child’s pants isn’t serving the interests of students or society. Let’s exert our energies toward preparing our kids to become the independent thinkers necessary for a democracy rather than the subjects of seemingly arbitrary rules.
Robson is a law professor at New York’s City University School of Law and the author of Dressing Constitutionally. She wrote this for the Los Angeles Times.