Author Archives: Brett Dolin

Charter School Hair Norms

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433px-Duerer01The Classical Academy High School, a Colorado public charter school, has required one of its students to cut his hair, despite a “senior contract” creating a “hairstyle exception” for the school’s graduating seniors. As reported, the senior class can negotiate a contract with the school administration to get certain perks. This year’s contract included a dress code exception, which promised “no gender restriction on hairstyle or length.” The school’s dress code, which requires uniforms and emphasizes modesty, typically requires a boy’s hair to be no longer than the bottom of the ears on the sides and no longer than the bottom of the collar in the back.”

Senior Charlie McGrath grew his shoulder-length hair in reliance on the dress code exception, but was later told he would have to cut it “in front of the entire senior class.” According to his mother, school officials said “they did not want to see a student like Charlie walk across the stage (at graduation); it’s not their image.” Charlie missed four days of school during a “conflict resolution process” and appeal to the local school board, but then cut his hair and returned because of a potential risk to his timely graduation.

While this story is yet another example of a school using its dress code to enforce certain norms, the linked article highlights difference between public charter schools and what it calls “traditional” public schools. The Colorado Safe Schools Act, in section 2(a)(J) requires a school district to establish a “dress code policy that prohibits students from wearing apparel that is deemed disruptive to the classroom environment or to the maintenance of a safe and orderly school. The dress code policy may require students to wear a school uniform or may establish minimum standards of dress.”

Charter schools that operate independently of “traditional” public schools can set their own, stricter dress codes. As reported, Stacy Rader, the Colorado League of Charter Schools spokeswoman, said “It could be argued that this is the beauty of school choice because families can select whichever public school – charter or traditional – that best fits their learning style and family priorities.”

The choice of a stricter dress code is, of course, only one small facet of the complex debate about school “choice.” It does, however, hint at the elitist, classist values behind some not-quite-public charter schools that want to portray a certain image of the modest and uniformed young man or woman. One supposes those who don’t fit the image can simply choose a “traditional” public school.

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EEOC Issues New Guidelines for Religious Garb and Grooming Discrimination

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EEOCIn 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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Ninth Circuit Applies Strict Scrutiny to Motto-Bearing School Uniforms

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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.

roy_gomm_banner_topThe 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.

Public Lewdness Bill Returns to New York Legislature

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Fire-Island-Nude-BeachAssemblyman Ken Zebrowski (D-New City) has reintroduced a bill that would increase penalties for “public lewdness” in New York State. The bill provides for felony conviction and addition to the sex offender registry for such acts as exposing oneself where a child under 14 is “likely to be present.” The same bill passed the State Senate last year, but failed in the Assembly. The text of the bill is here.

We discussed the bill and some of its potential consequences here.

Spokane Might Hold Vote on Public Nudity Ban

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Citizens of Spokane, Washington, are gathering signatures for a proposed anti-nudity initiative. The initiative would create a misdemeanor, punishable by up to one year in prison, for exposure of “at least half of a female breast, any part of of a female areola or nipple, or any part of male or female genitals or anus at any place the public has a right to be or see.” The Spokane City Council rejected similar rules in October, leading supporters to seek voter approval through the initiative process.

SweetSpotCafeThe nudity ban movement reportedly arose as a result of “Topless Tuesday,” a promotion for local espresso chain “Devil’s Brew,” now known as “XXXtreme Espresso.” Workers at the event wore “G-strings and pasties” to serve coffee drinks to the public. The event caused concerned citizens to worry about Spokane’s family values. City Councilman Mike Fagan, sponsor of the failed October proposal, reportedly said, “If we’re going to promote Spokane based on family values, we’re going to let this continue?”

The initiative implicates more than the “family values” concern about what children might see in a public place, however. The proposed ban is overinclusive, if aimed at the larger issues of nudity or exploitation in marketing (see, for example, allegations of prostitution at a similar Washington State “bikini espresso stand”). The ban also criminalizes women who staff espresso stands. Stand owners, who presumably crafted these dress policies in a bid for increased profits, likely wouldn’t face misdemeanor charges under this proposal.

And the idea of people voting on the expressive rights of others is troubling. In Spokane, however, both sides of the issue agree that a public vote is best. As reported, ban opponents on the City Council are in favor of letting the public decide. And so is Sarah Birnel, owner of Devil’s Brew/XXXtreme Espresso, who told the council that “voters should set nudity standards.” Referring to the vote, she is quoted as saying: “As an American, this is what we should stand for.”

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“Etiquette Police” Proposed for Kansas Legislative Interns

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1954KansasBorderKansas 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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Hair and Nudity on Stage: “Just Like the Hippies Did”

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HairHair, “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.

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Art or Obscenity? Love! Valour! Compassion! and Nudity in Grand Rapids

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A production of Terrence McNally’s play Love! Valour! Compassion! at the Actors’ Theatre in Grand Rapids, Michigan, has drawn criticism for its onstage nudity, raising questions about public financing of artistic pursuits. Actors’ Theatre, although an independent organization, reportedly received $19,000 in funding from the public Grand Rapids Community College and the group performs at GRCC’s Spectrum Theatre. The play, according to a favorable local review, “follows a group of eight homosexual males” who discuss AIDS, infidelity, and “other ‘real people’ situations.” At least one character is nude for “a good portion of the play.” 

The problem, according to some, is that GRCC is endorsing nudity as entertainment, with taxpayer money. Concerned citizen Joan Ridderbos, who reportedly did not see the play but did hear about it from friends at church, made the complaint to a meeting of the board of trustees. Trustee Richard Ryskamp agreed, having previously accused GRCC funding of being used to “mock Jesus Christ” and “popularize homosexual conduct.” One suspects the upset is about something more than nudity on stage. 

500px-Titian_Venus_Mirror_(furs)The Grand Rapids controversy and its articulation in concern about nude entertainment highlights another controversy discussed in Dressing Constitutionally. In 1975, the Supreme Court decided Southeastern Promotions Ltd. v. Conrad, a case about the musical Hair, which also features onstage nudity. As discussed in the book, it is clear that a production of Love! Valour! Compassion! is protected by the First Amendment. The GRCC’s budget, however, is fair game for the political process, and concerned citizens may attempt to censor the stage through a denial of funding, recalling efforts in the 1980s and 1990s to defund the National Endowment for the Arts and NEA v. Finley.

Trustee Ryskamp, meanwhile, noting that artistic abilities are not “the issue,” has declined an invitation to see the Actors’ Theatre’s next production: Venus in Fur.

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What’s the Problem with Skyler’s Bag? A School Dress Code and a Boy’s “Purse”

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VeraBradleyBagSchool 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 other situations, 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.

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Confederate Flag Attire and School Dress Codes, Revisited

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Confederate_Third_National_Flag_-_CanceledThe 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.

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