The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don’t – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.
See the Table of Contents and Read the Introduction here
US BOOK LAUNCH/PRESENTATION at CUNY LAW September 19, 2013
CANADA Book Launch/Presentation at Osgoode Hall September 23, 2013
UK Book Launch/Presentation: November 26, 2013
Listen to a 5 minute interview with Jacki Lyden aired on NPR’s ALL THINGS CONSIDERED here; a 12 minute interview with Mocrieff aired on NewsTalk IRISH radio here (starts at 35:00); a 60 minute interview on NPR’s The Diane Rehm Show here; a 20 minute interview with Brian Lehrer of WNYC here; a 15 minute interview on LA’s KPCC “AirTalk” with Larry Mantle on school dress codes here; a 60 minute discussion on Wisconsin Public Radio’s The Joy Cardin Show here; a 15 minute discussion with Margaret Ramirez on CUNY’s “Book Beat” here.
Watch for “Fashion and the Law” panel at CUNY Graduate Center (February 25, 2014); Dressing Constitutionally talk at Columbia Law Center for Gender & Sexuality (March 5, 2014); and Author Meets Reader Panel at Law & Society Conference (June 2014).
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.
In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state’s statutory prohibition of “secretly photographing or videotaping a person ‘who is nude or partially nude,’” G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women’s skirts (“upskirting”).
The defendant had argued that if § 105 (b ) “criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad,” but because the court “concluded that § 105 (b ) does not criminalize the defendant’s alleged conduct,” it did not reach the constitutional questions.
Yet, as in many cases, the court’s statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute “does not penalize the secret photographing of partial nudity, but of “a person who is ... partially nude” (emphasis in original). Courts have long struggled with definitions of “nudity” – - – recall the United States Supreme Court’s recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor. [More on this issue is in Dressing Constitutionally].
Additionally, the court reasoned that the statutory element of in “such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed” did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth’s argument emphasizing the “so” in “so photographed” – - – that “because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt” by interpreting “so” as simply referential.
The court concluded that at the
core of the Commonwealth’s argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of “upskirting” conduct at issue in the case. Given the court’s opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.
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.”
The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, issuing a clarifying order:
The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”
The Eighth Circuit’s opinion was typically cursory at three pages, basically deferring to prison officials, and relying on a previous Eighth Circuit case, Fegans v. Norris. Chapter 6 of Dressing Constitutionally extensively discusses the problem with Fegans:
Michael Fegans, an inmate in Arkansas and a member of the Assemblies of Yahweh, argued that the newly enacted hair-length regulation for male inmates did not withstand the “least restrictive means” requirement of RLUIPA. The Eighth Circuit, however, was not convinced by Fegans’ arguments that the Arkansas policy was more restrictive than other prison policies and was also gendered, mandating hair above the ears and no longer than the middle of the nape of the neck in the back for male prisoners and the allowance of shoulder-length hair for female prisoners. The court found it important that these arguments were contradicted by the testimony of prison officials, even if the officials’ statements seemed to be bare declarations. For example, Norris, the Director of the Arkansas Department of Corrections, testified that more liberal policies would be “less effective” in the Arkansas system since “he had seen one of these policies at work in the past” and “security wasn’t nearly as good then as it is now.” Similarly, Director Norris had something to say about gender differences: “Women are not generally as violent as men. They are not as escape prone as men. They are not as prone to give us problems with contraband as men.” In neither case did Fegans contradict this testimony. As the dissenting judge in Fegans v. Norris correctly argued, however, Fegans did not have to refute Norris’ statements. Under RLUIPA, the prison authorities have the burden and mere assertions should not meet that burden.
Fegans v. Norris illustrates the precarious relationship between RLUIPA and the religion clauses of the First Amendment.
There’s more analysis of the Court’s grant of certiorari over at Constitutional Law Professors Blog.
In its opinion in Knight v. Thompson, the Eleventh Circuit upheld an Alabama Department of Corrections (DOC) policy that bans long hair for incarcerated men. A group of Native Americans initially challenged the policy in 1993, alleging it unlawfully burdens their religious tenet to wear unshorn hair. Over the last two decades, the case has worked its way to the Supreme Court with the group now petitioning the Court to hear their appeal.
In total, Alabama prisons and jails house approximately 200 persons who practice the Native American faith of which having long hair is a fundamental belief. Despite numerous requests, the DOC has not given incarcerated Native Americans a religious exemption from the ‘no long hair’ policy. Thus, the group claims the policy is unlawful under Religious Land Use and Institutionalized Persons Act (RLUIPA).
RLUIPA allows a policy to infringe on incarcerated persons’ beliefs if the policy furthers a compelling interest and is the least restrictive means to achieve that interest. So, in defense of the policy, the DOC argues that safety concerns require the long hair ban — incarcerated persons could hide contraband in their hair or grab the hair during fights — and that long hair encourages gangs, undermines order and control, and raises hygiene issues. The challengers, however, argue that a total ban is not the least restrictive means to achieve safety and order — after all, Alabama’s women’s prisons allow long hair and over 38 men’s prisons in the U.S. do as well. But the lower court found that incarcerated women pose “less risk of violence and escape” than men based on warden testimony, and the circuit court also found that other prisons allowing long hair does not necessitate Alabama to do the same. Ultimately, the court denied the Native Americans’ claim, saying RLUIPA “does not give courts carte blanche to second-guess” prison officials.
The challengers also put forward a slew of Constitutional arguments — they claim the policy violates their 1st Amendments rights to free exercise of religion and freedom of association, and the right to due process and equal protection, among others. The court addressed only the equal protection claim, saying the remaining claims were not properly raised. And the court again upheld the policy, rejecting the equal protection challenge: given the finding that women pose less of a safety concern than men, it is not arbitrary or unreasonable to allow incarcerated women long hair but not men.
As discussed in Dressing Constitutionally, dubious rationales rooted in anecdotal evidence and broad generalizations are typically sufficient to justify a prison’s policy that treats groups differently. Indeed, despite lack of evidence or a challenger’s showing to the contrary, courts give a hefty deference to prison officials because of the weight given to safety concerns.
In response to the loss in the circuit, a member of the Native American petitioners told reporters, “I wish the courts could see or feel how something as simple as a lock of hair can mean.” Perhaps if confronted with the full meaning and the right (or lack thereof) at issue for an incarcerated person, the court might not be so quick to uphold a prison policy without a more rigorous showing of substantiated facts — adequately justifying why a prison finds it necessary to control a person’s physical appearance and thwart his personal, religious, or spiritual expression.
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:
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.
Last month, the Council on American-Islamic Relations New Jersey (CAIR-NJ) filed a complaint with the Equal Employment Opportunity Commission (EEOC) on behalf of a woman whose employer ordered her to remove her hijab, causing her to lose her job.
According to reports, the complaint alleges that Ms. Naima Mnasri “ was ordered to remove her hijab at her second day of work” when she was waiting to start her shift at a factory that manufactures plastic bottles. Supervisors told her that she needed to remove her head scarf for “safety reasons” and that “no religious symbols were permitted at the factory.” When asked by reporters if she felt her hijab was a potential “safety hazard,” Ms. Mnasri said “absolutely not.” Removing the hijab would violate Ms. Mnasri’s religious beliefs, so she had to leave her job.
Filing a complaint with the EEOC on her behalf, CAIR-NY is a civil rights organization that frequently advocates for Islamic civil liberties in the U.S. Their complaint alleges that the supervisor’s order violated state and constitutional law. It states that the ban of religious symbols “directly violates the U.S. Constitution and the very foundations the country was built upon.”
Ms. Mnasri recounted the incident for reporters:
“It’s upsetting. I was upset. I know I live in this country. The constitution protects my rights. I even told him that I have rights in this country and I’m going to pursue my rights … He said, ‘ma’am either you take that off, meaning the hijab, or you go home.’ I told him it’s part of my religion. I cannot take it off.”
Professor Ruthann Robson has previously discussed this kind of “Hijab Hysteria” last year, saying that an employer need not claim safety reasons in order to bar hijabs from the workplace. Instead, as the Tenth Circuit suggested in 2013, the burden is on the woman to explicitly inform her employer that she wears the hijab for religious reasons and request accommodation.
But Professor Robson suggests that rather than focus on the reasons why a woman chooses to wear a hijab, religious or secular, “we should be more worried about the beliefs and biases of those who seek to control women’s attire, whether they are focused on headscarves or something else.”
In this “Oppressed Majority” video from France (with English subtitles), so much of the sexism involves attire.