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.
As I argue over at the Cambridge University Press blog 1584,
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.