Content uploaded by Todd A. DeMitchell
Author content
All content in this area was uploaded by Todd A. DeMitchell on Jun 27, 2020
Content may be subject to copyright.
376 Ed. Law Rep. 421
West's Education Law Reporter
June 11, 2020
Commentary
Todd A. DeMitchell, Ed.D., Christine Rienstra Kiracofe, Ed.D., Richard Fossey, J.D.,
Ed.D., Nathan E. Fellman, M.Ed., Ed.S.aa1
Copyright © 2020 by Thomson Reuters/West - No Claim to Original U.S. Government
Works; Todd A. DeMitchell, Ed.D., Christine Rienstra Kiracofe, Ed.D., Richard Fossey,
J.D., Ed.D., Nathan E. Fellman, M.Ed., Ed.S.
GENDERDIZED DRESS CODES IN K-12 SCHOOLS: A
MIXED METHODS ANALYSIS OF LAW & POLICYa1
I. The Issue: Gendered Dress Codes
“Girls, particularly those with ample hips and breasts, are almost exclusively singled out,
typically told their outfits will ‘distract boys.’ As if young men cannot control themselves
in the presence of a spaghetti strap.”1
She was in seventh grade and an excellent student. She consistently dressed
conservatively. One day she wore a large t-shirt with an advertisement across the front
of her shirt announcing an upcoming solar eclipse (she is greatly interested in space
studies). The school did not have a dress code policy, however, her third period teacher
told her that she should not wear a shirt with writing on the front. The implicit meaning of
the directive was clear and angering.2
Twenty years ago Christopher Gilbert wrote, “What students wear has become a
major issue in the nation's schools.”3 This debate over what to wear has not abated.4 In
2013-2014, 63.8% of U.S. schools enforced a strict *422 dress code.5Consequently, six
of every ten schools has adopted a formal dress code policy. When a student's decision
about what to wear to school is at odds with a school's dress code, a conflict arises that
can extend beyond the clothes closet to the principal's office and on to the federal
courts. While some students will hunt for something that is reasonably clean, others will
look for something to say with their attire such as a t-shirt with the phrase “Be Happy,
Not Gay”6 worn in response to a school activity that was supportive of tolerance to gay
and lesbian students, or sagging pants as an expression of identity.7
Recently, there has been a shift towards asking whether the dress codes, which
on the surface appear to apply equally to both male and female students, in effect single
female students out for additional scrutiny. For example, it was reported that a senior
female student at Hickory Ridge High School in Harrisburg, North Carolina was accused
of violating the school dress code because her shirt showed her collarbone and
shoulders.8 The increased focus on female students and inequitable treatment is
particularly persistent for “Black girls [who] face unique dress and hair code burdens.”9
*423 A. Focus of the Study
This article will explore the emerging question: Do dress codes restrict female
students' choices in clothing to a greater degree than they do male students? Or,
alternatively, do sex-based school dress codes “merely reflect harmless differences in
the expected dress for young boys and girls that already exist in society.”10
This commentary is organized as a law law and policy analysis and discussion. The
legal analysis consists of Section I, introduction and controversy of choice and
restriction, Section II, the constitutional free speech rights of students, and Section III,
examples of dress code cases. The policy analysis is in Section IV constitutes a policy
analysis that explores gendered dress code research and policy responses. It reviews a
focus group study on student responses to dress codes and a model dress
code. Section V includes an exploratory study reporting on a document analysis of 25
randomly selected New Hampshire dress code policies.11 Themes were developed from
the analysis of dress code policies using a document analysis qualitative
approach.12 Section VI concludes with a discussion of our takeaways from the law and
policy analysis.
B. Student Choice and School Restrictions: The Controversy13
Many students simply want to wear clothing of their choice such as blue
jeans,14such as middle school student Amanda Blau want to wear clothes that “look nice
on [her]; that she ‘feels good in’ and that expresses her individuality.”15 Amanda lost her
lawsuit against the school's dress code. Portions of the school's dress code included
such restrictions as: “no blue *424 jeans,” “... [no] low necklines and midriff shirts,”
“shorts[] or skorts that must be mid-thigh or longer,” “... [no] low, scoop, plunging or
revealing necklines,” and a prohibition on “[a]ny material that is sheer or lightweight
enough to be seen through.”16
Relying heavily on the Blau decision, one student went to court because the
dress code required her to wear “bland colors” which she argued could exacerbate
emotional issues such as depression. The federal district court in Bell v. Anderson
Community Schools,17 in an unpublished opinion, held that self-expression does not
necessarily equate to the expression of ideas, and that “vague and attenuated notions of
expression of ideas or opinions” do not always enter the marketplace of ideas.18
While the majority of dress code cases center on an alleged violation of the student's
First Amendment rights,19 University of Chicago Professor of Law Justin Driver raises the
question about the constitutionality of gendered dress codes such as the one at the
center of Amanda's lawsuit. In his discussion of the Blau decision, he wrote, “Perhaps
predictably, a large number of the school's restrictions can be understood as
communicating anxiety about clothing that is thought to display young women's
sexuality.”20 Furthermore, he cautioned that prohibitions on what students may wear to
school present “opportunities for arbitrary discrimination.”21 We first explore professor
Driver's caution by reviewing the free speech rights of students.
II. Constitutional Standards for Student Attire: Tinker and Bethel
“The very nature of public education requires limitations on one's personal liberty in
order for the learning process to proceed.”22
A seemingly innocuous morning decision about what to wear to school can
sometimes become a controversy that extends from the clothes closet to the school, and
from the school to the courts. Again and again, students have gone to court to oppose
school rules about what they can, cannot, and must wear to school. Fossey and
DeMitchell note, “Without a doubt considerable litigation has established that the once
benign and mundane issue of what students choose to wear to school is now draped
with constitutional considerations.”23 Student clothing choices raise a number of
important policy issues, such as the school's interest in insisting on modest attire, school
concerns about political messages worn on clothing, and the school's responsibility to
shield vulnerable students from clothing messages that are demeaning to gay and
lesbian students; promote drugs, alcohol, tobacco, weapons and violence; or that
denigrate students based on race and ethnicity.
*425 Moreover, school policies that require students to wear school uniforms24 or
clothing that conforms to a school's dress code raise important constitutional issues
about a student's right to free speech while in the school environment. Over the years, a
surprisingly large volume of litigation has been generated over the efforts of school
authorities to regulate what students wear to school. Most of this litigation juxtaposes the
constitutional right of students to express themselves in clothes and accessories with the
school's interest in providing a climate that supports instruction and that is appropriate
for children and adolescents who do not possess the full panoply of rights guaranteed to
adults.
Disputes over what can be worn to school have led to litigation, and the outcome
of this litigation has been mixed. “As a result, dress code litigation tends to look more like
potpourri than a unified, articulated body of case law.”25 Unfortunately, the U.S. Supreme
Court has not yet ruled on a dress code-specific case. Consequently, educators must
rely on the Court's prior student speech decisions and decisions from lower courts.
The issue of student speech is important because, as noted school law professor Nelda
Cambron--McCabe stated, “School officials confront students' speech rights on a daily
basis in public schools.”26 The U.S. Supreme Court has issued four primary decisions
focusing on student speech: Tinker v. Des Moines Independent Community School
District;27 Bethel School District No. 403 v. Fraser,28 Hazelwood v. Kuhlmeier,29 which
involved issues related to school-sponsored speech, and Morse v. Frederick,30 which
focused student *426 speech related to drug use. Tinker and Bethel are relevant to the
issue at hand and will be discussed below.
A. Tinker v. Des Moines: The Magna Carta for Student Free Speech31
In December of 1965, then-Senator Robert F. Kennedy (RFK) called for a truce to
the Vietnam War. To show support for RFK's proposal, and object to the continued
conflict, a small group of students in the Des Moines Independent Community School
District (including John and Mary Beth Tinker) planned to wear black armbands to
school. Administrators in the district learned about the students' plan and passed a
preemptive policy on December 14, 1965 “[t]hat any student wearing an armband to
school would be asked to remove it, and if he refused he would be suspended until he
returned without the armband.”32 Although students were aware of the new policy, they
wore the armbands to school several days later and were subsequently suspended. The
students filed suit in federal court, arguing that it was unconstitutional for the school
district to suspend them for engaging in constitutionally protected speech.
The U.S. District Court for the Southern District of Iowa held that “[t]he wearing of
an armband for the purpose of expressing certain views is the type of symbolic act that
is within the Free Speech Clause.”33 Despite this, the court dismissed the case opining
that in this instance the “[d]isciplined atmosphere of the classroom” and not the students'
right to free speech was “[e]ntitled to ... protection.”34 The Eighth Circuit Court of Appeals
sitting en banc affirmed the lower court's decision in an equally divided court, without
opinion, in November 1967.35
In February 1969, the U.S. Supreme Court reversed the Eighth Circuit's decision
and remanded the case.36 The High Court characterized the armbands as symbolic
speech protected by the First Amendment's free speech clause.37 Weighing the need for
schools to both maintain order and protect students' First Amendment rights, the Court
observed “[t]his case does not concern speech or action that intrudes upon the work of
the schools or the rights of other students.”38
The Supreme Court took issue with the district court's decision that “the action of
the school authorities was reasonable because it was based upon their fear of a
disturbance from wearing of the armbands.”39 The Court *427 clarified that
“[u]ndifferentiated fear or apprehension of disturbance is not enough to overcome the
right to freedom of expression.”40 Referencing language from a 1966 Fifth Circuit
decision in Burnside v. Byars,41 the Court opined that only speech that could create a
material and substantial disruption to the operation of the school could be constitutionally
silenced.42 “It can hardly be argued,” the Court famously noted it “can hardly be argued
that either students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”43 The Court struck a balance between the
“scrupulous protection of Constitutional freedoms of the individual”44 and the compelling
need for the public schools to perform their proper educational function.
In Tinker, the Supreme Court expressly differentiated between a school's
restrictions on a student's constitutionally protected speech and a dress code. In fact, the
Court emphasized that “[t]he problem posed by the present case does not relate to
regulation of the length of skirts or to the type of clothing. Our problem involves direct,
primary First Amendment rights akin to ‘pure speech.”’45
Since this landmark decision, school officials have frequently applied what came
to be known as the “Tinker test” to make decisions regarding student-sponsored speech.
The Tinker test proscribes school officials from prohibiting student speech simply
because they disagree with the message that an item of dress communicates. Instead,
student speech can only be censored if school officials have reason to believe that the
speech might “materially disrupt[] classwork” or provoke “substantial disorder in the
school environment.”46 This is a high bar for school administrators to meet. Second,
student speech may be prohibited when it involves a “collision with the rights of other
students to be secure and to be let alone.”47 Although the Tinker decision is now 50
years old, it remains the seminal case in student-sponsored speech jurisprudence.
Despite its significance, the Court established a new, different student speech test
sixteen years later in Bethel School District No. 403 v. Fraser.
*428 B. Bethel School District No. 403 v. Fraser: Lewd, Vulgar, or
Offensive Speech48
In 1983, petitioner Matthew Fraser was a senior at Bethel High School in
Tacoma, Washington. Having nominated one of his peers for the position of student vice
president, Fraser delivered a nominating speech during a school assembly filled with
sexual innuendo. The text of the speech was excerpted by the Ninth Circuit in its
decision:
I know a man who is firm--he's firm in his pants, he's firm in his shirt, his
character is firm--but most of all, his belief in you, the students of Bethel is firm. Jeff
Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue
and nail it to the wall. He doesn't attack things in spurts--he drives hard, pushing and
pushing until finally--he succeeds. Jeff is a man who will go to the very end--even the
climax, for each and every one of you. So vote for Jeff for ASB vice-president--he'll never
come between you and the best our high school can be.49
Fraser's speech was met with both laughter and confusion. Several older
students, who understood the innuendo, made sexual gestures, “hoot[ed]” and “yell[ed]”
in response Fraser's vulgar speech.50 Other students were described as “[r]ather
bewildered, not understanding what the kids were clapping about.”51
The day after the assembly Fraser was informed that he had violated the school's
“disruptive conduct rule” and was suspended for three days.52 Fraser subsequently filed
a Section 1983 claim against the school district arguing that his rights had been violated
under the First and Fourteenth Amendments. The U.S. District Court for the Western
District of Washington found for Fraser, and the Ninth Circuit affirmed.
The U.S. Supreme Court reversed the Ninth Circuit's decision, disagreeing with
the lower court's application of Tinker to mean that “[t]he use of lewd and obscene
speech” in a nominating speech was “[e]ssentially the same as the wearing of an
armband ... as a form of protest or the expression of a political position.”53 The Court
underscored the important role of public schools in promoting “[m]anners of civility” in
students.54 This role, the Court opined, encompassed the prohibition of vulgar language,
stating, “the determination of what manner of speech in the classroom or in school
assembly is inappropriate properly rests with the school board.”55 The key issue before
the Court was the nature of what made the speech inappropriate. Sexually suggestive
language, like that used throughout Fraser's nomination speech, can be constitutionally
silenced by the school district. However, a school *429 district could not similarly silence
political language simply because the school district or administrators disagreed with the
viewpoint of the message.
C. Student Free Speech Inside the Schoolhouse Gate
Free speech is a coveted right with strong protections against its infringement by
government. For example, Justice Cardozo described the freedom of speech as “the
matrix, the indispensable condition of nearly every other form of freedom.”56 It is a robust
right critical to the liberties of the citizenry embracing “a bedrock principle” that restricts
government from prohibiting “expression of an idea simply because society finds the
idea itself offensive or disagreeable.”57
However, the right is not without limits. This is especially true within the special
circumstances of the public school a place where the right to free speech is not full-
bodied. Even though students do not shed their constitutional rights at the schoolhouse
gate,58 they do not receive the same measure of protections for their free speech as
adults outside the schoolhouse gate. “Students are free to express themselves in many
ways outside the schoolhouse gate, but inside the schoolhouse gate it is another
matter.”59 Restrictions are placed on children that are greater than those placed on
adults.60
Public schools have a duty to protect the constitutional rights of their students.
That includes attire that is protected by free speech. However, that right is not
unfettered; it is balanced by the fundamental interests of society in providing for an
educated populace.61
III. Dress Codes
As a principal of a Canadian High School wrote in a letter to parents: “Girls wearing
short skirts should think about how they sit and what is revealed when they bend
over .... It's my job as principal to keep students contained in an environment where they
[boys and teachers] can learn [and teach] without distraction.”62
In a 1923 decision, the Arkansas Supreme Court upheld a school rule banning
students from wearing transparent hosiery, face-paint, cosmetics, or immodest dress.63 It
is important to note that all of these restrictions implicitly target female students. School
administrators, according to the court, need only act reasonably when enacting dress
codes. They did not have to secure the constitutional rights of their students. The courts
were “very reluctant to declare a board's student-conduct regulation to be
unreasonable,” *430 even when the court believed that the regulation was “unwise” or
“inexpedient.”64
From Pugsley's reasonableness standard ninety years ago to the present day,
the relationship between students and the schools has changed dramatically. Today,
schools, must not only act reasonably when dealing with their students, they must also
uphold their students' constitutional rights. Consequently, what to wear to school today
has become a constitutional question for the courts to resolve.
Some students approach their morning decision of what to wear to school with
studied indifference, asking only “is it clean enough to wear?” Others carefully select
clothing that reflects their beliefs, their values, their evolving sense of the wider world,
and their emerging personality. As a federal district court in Nevada noted, “the choices
that students make in dressing themselves can be--and often are--guided by much more
nuanced and complex considerations than simple aesthetics.”65 The issue of what
morning choice of clothing is appropriate for the school environment is often contested,
not only between parent and child, but also between the school officials and the student.
One principal responded to a research question about the need for student dress codes,
“Some would come Nude without it.”66
There are two forms of policies that restrict a student's ability to choose their
attire--dress codes and mandatory school uniforms. Regarding dress codes, students'
demands to choose their attire often conflict with school dress codes, which define the
clothes that cannot be worn. Clothes that do not adequately cover the buttocks, breasts,
bellies, and boxers and clothes that are revealing, advertise alcohol or drugs, or create
or are likely to disrupt the school are often targets of dress codes.
For example, clothing that depicts violence or weapons has been the subject of
dress codes, and their enforcement has formed the basis for litigation. Michael
Shoenecker, a Wisconsin high school freshman, began wearing two T-shirts to school
that prominently featured weapons. He stated that he was a sport-shooting enthusiast
and appreciated the Second Amendment's recognition of the right of Americans to
possess firearms.67 One T-shirt displayed the legend “Celebrate Diversity” with images of
a variety of weapons, and the second T-shirt spelled “LOVE” with stylized letters in the
form of weapons including a pistol, a hand grenade, two knives, and a rifle.
The principal, John Koopman, told Schonecker that he could not wear clothing that
depicted weapons, even though the dress code did not explicitly ban such clothing. The
dress code was later amended to explicitly prohibit clothing that depicts weapons.68 Suit
was brought against Koopman in his *431 individual and official capacity seeking
declaratory and injunctive relief that would allow the student to wear his T-shirts to
school without being disciplined.69 A short time later he wore a T-shirt that read with no
images, “IF GUNS KILL PEOPLE, I GUESS PENCILS misspell words[,] CARS drive
drunk & SPOONS make people fat.”70
As a threshold matter, the court found that all three T-shirts constituted speech.
Thus the court selected Tinker as the applicable school speech standard. The school
district asserted three issues that supported its argument that school officials reasonably
concluded that the T-shirts would disrupt the school environment.71 The court dismissed
all three.
First, in the court's view, no connection was established between the T-shirts and
a decline in test scores. Similarly, no connection was shown between the T-shirts and an
upsurge in truancies. Furthermore, no specific facts were offered that showed that there
was a substantial disruption, and no evidence was presented that teachers, who felt
uncomfortable about the T-shirts, were negatively affected. Finally, the school district had
not been able to show that there was a disruption among students over the T-shirts. In
short, the defendant failed to establish that there was a reasonable belief that wearing
the T-shirts will “create a threat of substantial disruption.”72
In contrast to dress codes, which specify clothing that students are forbidden
from wearing, school-uniform codes specify clothing that students must wear. School
districts with school-uniform policies may see their dress regulations challenged on First
Amendment grounds by students who insist they have a constitutional right not to wear a
uniform while they are in school. Requiring students to wear uniforms to school, student
plaintiffs assert, restricts their right to expressive conduct through their choice of
clothing.
Although lawsuits against school dress codes and school-uniform policies often
involve similar legal arguments, a school student-dress code is different from a school-
uniform policy. School uniforms define what must be worn to school while dress codes
define what must not be worn to school. Dress codes contract clothing options for
students, whereas mandatory school uniforms define the clothing options. Generally,
dress codes are intended to protect the school environment and its students from what is
inappropriate, whereas school uniforms are intended to improve the school
environment.73
This article focuses on dress codes.
*432 IV. Gendered Dress Codes: “I'm Tired ...”
I'm “tired of male teachers warning [female students] they can see their bra straps or
having to wear duct tape over ripped jeans.” I'm tired of “being told [we] are distracting
the boys if [we] show [our] shoulders, and with being taken into the hallway to conduct
the “fingertip test” to see if their shorts are long enough. I'm tired “of watching [my] male
counterparts break the rules daily, seemingly without consequence.”74
“One concern is that many dress codes are explicitly gender-specific, targeting girls but
not boys, or at least selectively enforced such that they impact female students
disproportionately”75
One recent spring, a female middle school student sent a letter signed by 34% of
the seventh grade class, to the administration of the school on behalf of other female
students. She wrote:
I want to bring to your attention the issue among girls regarding the
length of shorts required by the dress code. I believe that it should be changed
from the bottom of our fingertips to the bottom of our fists or knuckles. In my
opinion the dress code for the length of shorts at school needs to be changed.
This past week the weather got up to 85 degrees fahrenheit [sic]. On this
day there were quite a few girls were wearing leggings or jeans. I talked to them
and found that they wore long pants because they did not have any shorts that
were dress code. Most shorts either don't fit dress codes or they are so long that
they are almost capris. Most girls have to go to many different stores just to find
a few pair of shorts that fit the dress code. There is even a price difference
between dress code and other shorts. At most stores there is about a five dollar
difference. This difference can add up quickly. Just buying five pairs of shorts can
create a 25 dollar difference. This can even represent a financial burden for
families
Not to mention, dress codes targets [sic] in unfair ways. It Is not fair, boys
were never told they couldn't wear their favorite pair of shorts, so why is it fair for
girls to be told that they can't wear theirs? By changing it to our fists families can
save money, girls don't have to wear jeans in very hot weather, girls won't have
to go to several different stores just to get a few pair of shorts, and girls can wear
a variety of different shorts without having to worry about being dress coded.
Thank you for your time. I hope you will consider my request of changing
the length of shorts to our fists. I appreciate you [sic] time and hope you will
consider.
Sincerely,
Students of XXX School76
*433 This letter expresses the concern that dress codes have genderized the clothing
choices of students in a way that disproportionately impacts female students. The
student letter raises issues of differential cost for clothing and the unequal opportunities
for clothing choice based on gender. Was the rule regarding wearing shorts more
restrictive for female students than male students? Is it easier for male students to meet
the finger rule, if it even applies to them?
A new type of challenge has surfaced that is not necessarily rooted in free
speech: Are dress codes discriminating against female students by singling them out for
restrictions based on “gendered” expression?77 The gendered restrictions are in large
part based on the premise that if female students wear “X” to school the boys will be
distracted from their studies. The argument is that the girls are responsible for the
distractibility of boys. In other words, boys cannot help themselves, and the female
students therefore must protect boys from themselves by creating a “distraction-free
learning zone” for them. This argument in a New Jersey dress code protest inspired the
hashtag #IAmMoreThanADistraction.78
While genderized dress codes have been challenged in the courts over the
years, much of that litigation centered on boys seeking to wear items that historically
have been associated with female attire. For example, in a case involving a second-
grade male student, a Louisiana Court of Appeals upheld a school prohibition against
boys wearing earrings. The state appellate court held that the gender-based regulation
served three “legitimate”79 objectives: (1) the avoidance of disruption and distraction in
the classroom; (2) the fostering of respect for authority and discipline; and (3) the
conformation to community standards.80 Another earring case involving a fifth grade
student who used the same rationale to uphold the ban of males wearing earrings as
“inconsistent with community standards.”81
However, community standards often change over time. For example, school law
scholar Suzanne Eckes and her colleagues note that courts have become increasingly
sympathetic to students who desire to wear clothing that conflicts with traditional gender
stereotypes. “[R]ecent cases suggest a general trend toward permitting students to wear
gender nonconforming attire and accessories.”82 In other words, former taboos are giving
way to new norms of *434 acceptance.83
As part of the general trend to relax restrictions on student clothing, a focus on
the specific sections of a dress code has surfaced. An August 2018 article in Education
Week succinctly captured the rising momentum with the title, “Do School Dress Codes
Discriminate Against Girls?”84 Two issues were raised; first, girls are forced to conform to
gender stereotypes (as part of prevailing community standards, most often of
modesty);85 and second, there is an unequal application of the dress code especially for
Black male and female students.86 A 2019 Wall Street Journal noted that “[c]lothing once
considered taboo is now permitted as more districts across the U.S. relax student dress
code policies, deemed disproportionately targeted at females, and toward more gender-
neutral or suitable dress codes.87 For example, consider a video of the Oakville High
School's principal apologizing to parents for telling the female students “they should not
show off their bodies for fear of ‘distracting’ male classmates.”88
*435 A. Body--Shaming
One type of discriminating responses to female student choices is body-shaming,
or as some call it, slut-shaming.89 The argument is two-fold. First, the clothing choices
that are available for female students to purchase are limited and not designed to meet
school dress codes. Law professor Meredith Johnson Harbach notes the production and
marketing of “sexy” clothing that highlights sexuality in child and teen sizes.90 One parent
wrote that shorty shorts and form-fitting shirts are what are sold by major mainstream
brands.91 The author cited Catherine Pearlman (a licensed clinical social worker and
associate professor of social work) who, tongue-in-cheek, invited the school principal on
a blog to go shopping: “To reward you for treating my daughter with such concern, I am
cordially inviting you to take my daughter shopping,” she wrote. “Now, don't forget that
you will have to find something in the stores that also meets with your dress code
requirements.”92 Her five-foot seven-inch daughter had been cited two times in a row for
wearing shorts that were too short according to the fingertip rule.
The second concern is the perception that a female student's body is something
to be ashamed of especially if the student is well developed; that their bodies were the
cause of inappropriate thoughts and possible conduct. Being singled out and being
required to wear identifying clothing makes girls self conscious about their bodies.
Ms. Pearlman relayed a story regarding her daughter in which a teacher told her that she
could not wear yoga pants “because the boys would get turned on and then be
embarrassed.” The student's mother stated,
I think there are these subtle messages that sort of carry on that we shouldn't
show something. Why shouldn't we show something? Because something's
wrong with our body, “she said.” We need to be teaching the boys what
appropriate behavior is instead of teaching the girls that they have to cover up to
protect themselves from the boys.93
Similarly, a fifteen-year-old who was given an in-school detention for wearing
shorts to her mid-thigh stated that the school was sending a message that she should
cover up and be ashamed. She responded,
If I show a little bit of my body, I'm considered a bad girl, “she said.” Just because
I'm wearing this doesn't mean that I want people to look at me sexually. I want to
be seen as a woman. I don't want to have to feel bad about my body.94
*436 Referring to inequitable application of the dress code, the fifteen-year-old student
stated, “If one kid with no boobs can get away with it, so can someone with large
boobs.”95
B. The Skirts Only Regulation
A North Carolina charter School, Charter Day School (K--8 school), had a school
uniform regulation requiring female students to wear skirts, shorts, or jumpers and for its
male students to wear pants or knee length shorts. Three sets of parents on behalf of
their daughters brought suit in federal district court alleging a violation of the equal
protection rights of only the skirt requirement.96 The plaintiff students asserted that the
skirt option is less warm and comfortable than the male student's pants and, “more
importantly, restricts plaintiffs' physical activity, distracts from their learning, and limits
their educational opportunities.”97 Additionally, they argued that the skirt policy sends a
message that the comfort and freedom of the girls to engage in physical activity are less
important than their male classmates. The plaintiffs asserted:
The skirts requirement forces [the plaintiffs] to pay constant attention to the
positioning of their legs during class, distracting them from learning, and has led them to
avoid certain activities altogether, such as climbing or playing sports during recess, all
for fear of exposing their undergarments and being reprimanded by teachers or teased
by boys.98
The Board argued that the skirt requirement supports its “traditional values”
approach to education that is expressed in its policies and that a change in one policy
“risks in advertently changing the broader goal.”99 These policies, the Board maintained
“work seamlessly together in a coordinated fashion in a disciplined environment that has
mutual respect between girls and boys” by allowing students to act more appropriately
towards the opposite sex.100 While the Board makes much about its test scores and
achievements, it does not offer any connection between the skirt requirement and
academic achievement.
Judge Howard concluded that “the skirts requirement causes the girls to suffer a
burden the boys do not, simply because they are female.”101 The Board failed to
demonstrate that there were similar burdens borne by boys and girls as a result of the
school uniform policy. The judge wrote:
[The] plaintiffs in this case have shown that the girls are subject to a specific
clothing requirement that renders them unable to play as freely during recess,
requires them to sit in an uncomfortable manner in the classroom, causes them
to be overly focused on how they are sitting, distracts them from learning, and
subjects them to cold temperatures on their legs and/or uncomfortable layers of
leggings under their knee-length skirts in order to stay warm, especially moving
out-side between *437 classrooms at the School. Defendants have offered no
evidence of any comparable burden on boys.102
This is an unusual case in that it was brought under equal protection103 rather than free
speech and is one of the earliest if not the earliest case involving dress regulations and a
charter school. In Peltier, the concept of “traditional values” as an anchor for dress code
was called into question as were the norms of the school community.104 The days when
school authorities could regulate students' clothing based on poorly articulated
“traditional values” are waning. As Judge Howard, quoting Hayden, stated, community
standards “do not remain fixed in perpetuity.”105
C. Tank Tops and Her Thong: Contradiction and Resistance
The voice of female students, while sprinkled through popular literature, is largely
missing as a research artifact. We will next explore their voice by discussing research by
Rebecca Raby.106
Professor Raby conducted eight focus group sessions during 2004 and 2005
involving secondary school students in southern Ontario, Canada. While the focus
groups gathered to discuss school rules, dress codes received particular attention. Male
students were part of the groups. However Raby focused on how the female participants
negotiate dress codes “both contest[ing] and reproduce [ing] institutional and peer
regulation of girls' dress.”107 Her study explored the fine line that girls walk between
being “attractive and provocative”108 in their choice of school attire. While this research is
instructive in adding the voice of female secondary students, caution must be exercised
in generalizing beyond the four corners of this research.
*438 The plaintiffs in court cases based on free speech often discuss the
negative impact that dress codes have on their self-expression. However, the
participants in Raby's focus groups, similar to Peltier discussed above, emphasized the
practicality of a relaxed dress code. They argued “that tank tops, spaghetti straps, short
skirts and muscle shirts should be acceptable when it is hot rather than mentioning a
desire to look good, to be sexy, or to experience pleasure in dress.”109
Participants focused on practicality also stated that the dress code rules on
revealing clothing unfairly targeted female students. For example, participants in Focus
Group 1 stated:
Catherine: That's like the spaghetti strap rule is like kind of unfortunate because
it's like for boys its not a problem, and it's just like, “Sorry I am a female like its hot and I
would like to wear a spaghetti strap tank top,” but it's like “No, no you must not expose
skin,” which is kind of ridiculous cause /
Janice: You are not even showing anything, just your arm [laughs].
Catherine: Yeah you're really not; it is just your body; it's like “Oh no the human
body.”110
A second issue that surfaced in the research was the lack of equity and
inconsistency of enforcement of the dress code policy through the application of
personal interpretation of what is inappropriate. They identified two groups, which they
believe were singled out for more stringent enforcement. First, larger, more developed
girls were more likely to be singled out for dress code infractions, as this Focus Group
conversation demonstrates:
Barbara: There is some favoritism /
Lana: with dress code stuff ‘cause ... um, who was it? A couple of days ago she
had a--she just had a tank top on and because she had like, bigger breasts [pause and
chuckling] she got told to put a shirt on. But someone else who has like, you know,
smaller and everything, they just don't care.111
A third theme of Raby's study was the problem of provocative clothing. This
section begins with a criticism of the clothing industry and boys' preference for seeming
to “prefer to go out with girls who wear sleazy clothes and the fashion industry for
shaping girls' dress.”112 Broader cultural patterns impact the decision of what to wear to
school.
While wanting the practicality to wear clothes that fit the temperature and the
activity, the participants shared a concern and a “hostility” against girls wearing revealing
clothing and expressed “a consequent appreciation of dress codes”113 at least when
targeting revealing clothing. Their criticism was often couched in the language of self-
respect. For example, in response to the facilitator's question about provocative dress,
“What does that mean, *439 ‘something degrading to themselves'?” Crystal from Focus
Group 1 responded, “Uh, whorish. [Laughing], and Allison stated, “Basically ‘I have no
self-respect, I'm going to flaunt myself in the hope of feeling loved.”’114
In spite of the criticisms leveled at the dress codes, the participants identified
common ground with the dress code goals. They lamented the revealing dress of their
peers. The hostility was evident in the language choice of the students: “whorish, slutty,
disgusting, disturbing, and wrong.”115 Several focus groups cited the importance of
appropriate dress at school, identifying it as a special environment in contrast to the mall
or any other social gathering place. Barbara from Focus Group 4 asked, “Why would you
need to attract that kind of attention at school? I mean like who--like who are you there
to impress when you're there for, like ... education.”116And, possibly in response to the
riposte, well if you don't like, don't look, Nicole (Focus Group 3) responded regarding
revealing dress, “For me it's disturbing. Like ‘great. You're wearing a thong, show it to
your boyfriend, show it someone who cares.”117 The participants, like Nicole, talked
about the “forced gaze”--the idea that there was nowhere else to look.118
Professor Raby concluded that there are gender inequalities in school dress
codes. These inequalities are influenced by social factors outside of the school yet they
intrude inside the school environment. Female students are forced to negotiate a path
that is ill-defined and fraught with contradictions, yet of consequence. While the obstacle
to the practicality of dressing in response to the environment was an aggravation, the
participants were not ready to completely abandon dress codes that target revealing
clothing even though the difference between revealing clothing and practical clothing
may be difficult to define.
D. The Oregon NOW Model for School Dress Codes (2016)
We have explored several of the issues associated with gendered dress codes.
We will next look at the Oregon NOW Model Student Dress Code (2016) (hereinafter the
Model) created by the National Organization for Women (NOW) to assist school districts
in updating their school dress code policies to “support equitable educational access and
... not reinforce gender stereotypes.”119 The Model responds to dress codes that are
overreaching and detrimental to some K--12 students starting with its value statement to
which the policy adheres.120 While originating in Portland, *440Oregon, the model policy
has impacted schools across the nation, probably propelled by student and parent
protests that were picked up in the national press and the social media.121
Essentially the model dress code seeks to leave the clothing choices up to
students; “parents can decide with their children what is appropriate to wear to a public
school.”122 The Model is organized into five sections: Goals of a Student Dress Code;
Recommended Dress Code Policy; Training for School Administrators, Teachers &
Students; Dress Code Enforcement at Schools; and Teaching About Consent v Sexual
Harassment: A Step Beyond Dress Code.
The Recommended Dress Code Policy starts with a Basic Principle: Certain body
parts must be covered for all students. Genitals, buttocks, and nipples must be covered
with opaque material, but cleavage should not require coverage.123 The Policy is
organized into what students must wear (a top, a bottom, and shoes); what students
may wear (e.g., midriff baring shirts, pajamas, leggings and yoga pants, and tank tops,
including spaghetti straps, halter tops and tube (strapless) tops; and what students
cannot wear (e.g., violent language or images, drugs, or alcohol, hate speech and
language or images that creates a hostile or intimidating environment based on a
protected class).124
The enforcement section addresses student concerns about unequal application
of the dress code policy.125 This section prohibits: shaming (including kneeling, or
bending over to check attire), being removed from the classroom for a dress code
violation, requiring students to wear extra clothing, or calling parents to come to school
with alternative clothing. The policy explicitly states that no students will be
disproportionately affected by *441 dress code enforcement because of gender, race,
body size, or body maturity.126
The Model focuses on the concerns about restrictions on female students' attire.
It seeks to find the balance between types of clothing that many female students chose
to wear in their life away from school and revealing clothes that the participants in the
Raby study discussed. This type of clothing is protected. The decision of the court in
the Peltier would fit within the Model's dress code.
The “may” section in the Model Policy captures the in-school issues along with
their enforcement concerns. The types of contested applications of dress codes are
centered in the “cannot” wear section. This section is not focused on the specific type of
attire127 but, rather on what is being communicated. These are the controversies that
typically populate courts cases. For example, Fossey and DeMitchell, in their analysis of
dress code litigation, did not identify any courts' cases in which the right of students to
wear pajamas, tank tops, yoga pants, or crop tops showing the midriff (bellies) was
adjudicated.128 However, they discussed a number of cases involving messages on
clothing, including messages that the Model identified as ones that should not be worn
on clothing worn at school. The Model would not change the controversy over what
speech, found on student attire, was protected.
V. Dress Code Policy Analysis: Coverage & Sexualizing
“I always used to wish my school had uniforms, because teachers were so grossly unfair
with who they decided to pick out as appropriate or not, and call me old fashioned, but I
believe clothing should clothe, and I don't want to see peoples' personal bits.”129
A New England high school condensed its dress code into the following standard for
ease of enforcement: “No Killer ‘Bs': No Butts, Breasts, Bellies, or Boxers.”130
A policy is an authoritative choice from among competing values, made by a
governing authority, representative of a society's intents and priorities and an
authoritative allocation of resources to meet those intents and priorities in order to
induce a shift of behavior.131 Professor Frances C. *442 Fowler defines policy as a
“dynamic and value-laden process through which a political system handles a public
problem.”132
Understanding policy is important because, as Professor Patricia First stated,
“[p]olicy drives the educational system.”133 In most states the decision to adopt a policy
defining and/or restricting the attire that a public school student may wear to school is a
discretionary act. Elected school boards have the authority to decide what is appropriate
for students to wear to school and to provide guidance as to what types of clothing are
prohibited (dress code) or what kind of clothing is mandated (school uniform).
Consequently, the exploration of gendered dress codes is augmented by a review of
dress code policies.
For this exploratory study we analyzed dress code policies from New Hampshire,
which was selected as a convenience sample. A list of school districts with a high school
of at least 300 students was generated and numbered. A random selection process was
used to identify 25 school districts. Caution must be exercised in generalizing beyond
this sample of school dress code policies. New Hampshire is a relatively racially
homogenous population with a small urban population and a significant rural population.
Document analysis is a form of qualitative research that interprets documents.
Public records, such as adopted school board policies, are one of the primary types of
documents in which this method is used.134 The analytical procedure involving selecting
the policies (convenience random selection of policy manuals), “appraising (making
sense of), and synthesizing data contained in the documents ... organi[zing] [the data]
into major themes, categories, and case examples.”135
First, each dress code policy was reviewed for three categories: gender neutral
statements, sections specific to female students, and sections specific to male students.
Statements that did not fit into one of these three categories were discarded as not
applicable. The statements for each category were then hand coded to identify emerging
themes. This was an iterative process of winnowing until the final themes were arrived
at. Throughout the process “objectivity (seeking to represent the research material fairly)
and sensitivity (responding to even subtle cues to meaning) in the selection and analysis
of data from [the] documents” informed the document analysis.136
Careful attention was paid to what constitutes a gendered policy statement.
Males and females often wear clothing that is appropriate for both genders. For
purposes of this research, policy sections that do not reference a particular gender or
are capable of being applied to either a male or female gender are considered neutral.
*443 A. Gender Neutral Policies
While 23 of the 25 policies have gender neutral sections, nine of the 25 policies
did not have any gender specific provisions. Instead they relied on statements of
purpose and intent. The two outlier policies did not offer any examples of prohibited
clothing. One stated,
It is impossible to prescribe dress code regulations that cover every contingency.
In the majority of cases, discretion and good taste should be guideline enough.
In the event a particular dress style detracts from the educational
process/atmosphere, constitutes a threat to the safety or self or others, or is in
violation of lawful statutes, the school will take corrective action. In the event a
particular dress style detracts from the educational process/atmosphere,
constitutes a threat to the safety and health of self or others, or is in violation of
lawful statutes, the school will take corrective action.137
The second policy stated:
All students are expected to be groomed and to dress appropriately with respect
to the following criteria: Cleanliness and Safety, Educational Distraction,
Offensiveness and Common Courtesy.138
These two policies are indicative of the general principles that are found
throughout all 25 policies. The difficulty with these policies is that they only have general
principles and offer no examples to assist the school administration with enforcing the
policy or students with complying with the policy. Such questions as what constitutes
“good taste,” “common courtesy,” and “distract[ion]” are raised by these potentially vague
requirements implicating the due process rights of the students.139
The other general neutral general policy pronouncements include:
• “Clothing that may prove distracting or offensive to the general school population is
unacceptable.”140
• “If a student's dress or grooming disrupts the educational process or climate, is
unclean, or unsafe, the student will be removed from the class and asked to change.”141
• “While it is the right of the student to express oneself by dressing according to his or
her preference, the execution of this right must not *444 interfere with the rights of
others.”142
With the exception of the two school district dress code policies cited above, all
23 other policies offered examples of prohibitions. The most commonly cited examples in
the category of general, non-gender specific code sections include the following
examples, which are organized into prohibited types of speech, types of student attire,
and clothing fit:
Types of speech/communicative content
• Statements, depictions, and promotions of alcohol, drugs, tobacco;
• Offensive, racist, vulgar language;
• Sexual vulgarities/innuendos/explicitness;
• Weapons and/or violence; and
• Promotes gangs and/or gang activity.
Types of Student Attire
• Caps, headgear, bandanas, hoodies, and sunglasses;
• Nylon and spandex;
• Wearing undergarments as outer clothing;
• Dangerous clothing like heavy chains, studded belts, and spiked bracelets; and
• Slippers and wheels attached to footwear.
Clothing Fit
• Clothing that is too tight or too loose;
• Exposed mid-section, buttocks, clothing covering the body from the armpit to the mid-
thigh;
• Shorts/tops must cover the top of the pants; and
• Visible underwear.
B. Policy References to Male Students
There are significantly fewer dress code restrictions that target male students to
a greater degree than female students. Several can be described as covered by the
gender neutral prohibitions but the practice seems to be aimed more at male attire. For
example, the no-visible-underwear rule applies to female and male students, but general
prohibition also makes a specific reference to sagging pants (“pants worn at the hips”).
The other specific prohibitions are muscle shirts and sleeveless undershirts. This
statement was part of a gender neutral section and is an example of targeting a specific
gender. The section in inappropriate clothing reads, “Exposed undergarments or clothing
meant to be worn as undergarments. This includes men's sleeveless undershirts.”143
Furthermore, the reference to muscle shirts in the code is aimed at males. Male
specific dress sections are found in five of the 25 dress code policies. As will be explored
below, clearly, male students have fewer restrictions associated with their gender than
their female peers.
C. Policy References to Female Students
“In the wake of ‘new’ styles that girls have been sporting in the late 20th and early
21st centuries, a pervasive panic over dress has ensued in most *445 North American
high schools.”144 As seen above, there are some, although very few, specific references
to restrictions targeting males, while there were sixteen of the randomly selected dress
codes that had sections specific to female students. In these 16 policies, there were a
total of 62 specific references to female attire. Most of the prohibitions did not specifically
state that they were targeted at females but the descriptions of the attire clearly left the
reasonable person to conclude that the section referred to females. Because the
categorizing involved a subjective application of the standard as “reasonably associated
with females as opposed to males” does not mean that alternative conclusions of
exclusion and inclusion of specific sections of the policy are reasonable. With this
limitation, the following are our findings.
The 62 female references were sorted into two themes, coverage and
sexualization. Coverage refers to covering parts of the body that are usually covered
through social convention and in some cases laws on decency. These dress code
sections typically refer to covering breasts and buttocks. The second theme of
sexualization refers to attire that arguably imputes sexuality. For example, straps to a top
do not cover breasts or buttocks but they are prohibited because they are considered
“sexy.” Similarly leggings cover the anatomy but they are considered as sexy because
they accentuate the female body, and backless tops do not reveal breasts. An example
of the difference between the two themes is found in policies on tank tops. The qualifier
applied to tank tops that places them in the coverage theme is “low cut.” The two themes
should not be considered as separate and distinct, with no bright line distinction. Instead
they are often mutually reinforcing. For example, Dress Code #20 prohibits, “Apparel
that is sexually suggestive, including clothing whereby its brevity or sheerness is
sexually explicit. This includes pants, skirts, tops and other clothing which does not
provide appropriate coverage.”
1. Coverage
Coverage refers to the 37 provisions that focus on clothing that is too short and
fails to cover specific parts of the female anatomy. Specifically they refer to breasts,
midriffs, and buttocks, as well as skirts, dresses, and shorts that expose the inner thighs.
Essentially, these dress code provisions state that a female student must sufficiently
cover up body parts that may be considered sexualizing the female student, and as
some commentators have argued, distracting the teenage boy from his studies.
Examples of coverage sections that pertain to female students include short
skirts (8 policies), short shorts (7 policies), exposing breasts/cleavage (7 policies), and
transparent clothing (6 policies). Length is an important part of many of these dress code
sections. The dress code from school district #5 captures coverage and the
measurement of coverage for female students. It reads:
Clothing that is transparent or does not adequately cover the body (spaghetti
straps, halter, midriff tops, or low cut tank tops. Shoulder straps will be at least 2″
(or three fingers wide). Short shorts and skirts are inappropriate. Shorts must
have an inner seam of 5″ or more. For *446 skirts, stand straight drop hands
straight to sides and add an inch of length. When wearing leggings, untucked
shirts must cover waist and 1 inch in length. Skin should not be visible any time
around the waist.145
These types of dress code policies appear to assert that female students must be
subjected to measurements as if moral climate of the school and the responsibility for
upholding it and not distracting male students from their proper duty of getting an
education can be reduced to inches or the length of fingers.
2. Sexualization
Prohibited sexualized clothing (N = 25) covers but is identified as sexualizing the
female student. The majority of these dress code sections focus on what holds up the
top the female student is wearing. For example, the terms spaghetti straps, tube tops,
halters, backless, and strapless are found in 19 of the 25 provisions. Midriff revealing
tops is one of those crossover apparel items that involves covering, the stomach,
presumably because uncovered stomachs are sexually provocative. Nevertheless, as
one commentator has noted, “The stomach and belly button are not inherently sexual
body parts, as sex is not their primary function.”146
Other types of prohibited clothing include leggings and clothes made of Lycra. As
stated above, these clothing items cover but also reveal. Pajamas and lingerie were also
found in the dress code policies. Both could be considered inappropriate and pajamas
could be listed as gender neutral, but lingerie is clearly female attire and is often
considered sexy sleepwear.
As seen in the discussion above, there are many prohibitions on student dress
that are gender neutral. They are designed to reinforce a “proper” atmosphere for
students. However, the dress codes also identify gender specific clothing with the
majority of genderized sections targeting female students. These dress code sections
can be organized into two themes: covering a student's body, especially breasts and
buttocks, and clothing that tends to sexualize the student. As seen in Raby's
study147 female students seek flexibility and equality with their male counterparts in
wearing clothing that is appropriate to the weather and allows for comfort, but they are
also conscious of and concerned about the sexualization of the female student that can
take place through wearing clothing that is inappropriate for school.
However, the problem with this theme is the ascribing of “provocation” to female
clothing; in other words the dress choice of females is presumed to be designed to
attract attention from males. Too often women's dress tacitly depicts them “as sexualized
objects who have the potential to affect and disrupt men.”148
VI. The Balancing Act: Fair and Reasonable Regulations
A federal district judge in New Mexico asserted that while public school children enjoy
some measure of free speech within the schoolhouse gate that *447 freedom “is
balanced against the need to foster an educational atmosphere free from undue
disruptions to appropriate discipline.”149
In our view, it is inappropriate for school administrators to regulate female
students' clothing based on the argument that female students are responsible for the
irresponsible actions of teenage boys who might be “distracted” by their female
classmates. After all, males, whether they are students or adults, are responsible for
their own conduct. The excuse of “boys will be boys” and “girls must act like girls” “foists
upholding the morality of the school onto the girl's shoulders.”150
Professor Pomerantz's case study of Marcia Stevens, a 15--year-old student at
Pine Grove Secondary School in Langley, British Columbia, Canada provides an
excellent discussion of a teenage girl's confrontation with the “border war” of ascribing
the boundaries “between a proper and improper femininity, or a right and a wrong kind of
girl.”151 Marcia wore a tank top with spaghetti straps that was deemed a violation of the
dress code because “‘it showed too much cleavage.”’152 Marcia was more developed
than many of the other girls at the school--less developed female students who wore
similar tops were not asked to change out of their tops. Marcia's father responded with
bewilderment to a query from a reporter stating, “What are they trying to do, make my
daughter ashamed of her body?”153
We agree with Professor Pomerantz when she writes: “Thus this seemingly
neutral form of school law needs to be continually patrolled, particularly in an era when
dress codes are being rewritten in order to deal with how girls are dressing these
days.”154Moreover, one commentator suggested,
If we believe a student's choice of attire is inappropriate or insensitive, we are
obligated to a dialogue, which is where learning can occur. This is where the
blurry line between confident comfort with one's body and the risks of self-
objectification can be examined.155
We offer the following conclusions from our exploratory study. These walkaways are not
meant as an end punctuation, period, to the conversation, but rather a hyphen to invite
continued conversation on the topic.
1. School is a special place. It is not the local mall or any other informal gathering
place for adolescents and teenagers to socialize. Student and adult attire should reflect
the importance of the environment and be comfortable enough for students to fully
engage in the range of activities that are sustained over six plus hours a day.
2. Coverage. Society expects that certain body parts (breasts, buttocks, and
genitals) must be covered up in while in public. This expectation should apply to all
students, both male and female.156
*448 3. Gender neutral policies. Gender neutral policies should be adopted to the
greatest extent possible, while providing enough specificity for students and educators to
know what is prohibited.
4. Body shaming practices. These practices are demeaning to students and are
ineffective. Students must be treated with respect. Body shaming practices, such as
having to wear a T-shirt that states the student violated the dress code, must be
eliminated as a practice. Similarly, comments that demean a student such as telling a
student that she violated the dress coded because she was “busty” or telling students
not to wear leggings “unless you are a size 0 or 2” are unacceptable.157
5. Inches. Dress code policies that resort to the use of inches or finger tips to
define the difference between appropriate and inappropriate should be deleted. It is
demeaning to apply a ruler to a student's body. Disagreements over inches or the length
of a finger are very seldom ever resolved in a manner that leaves everyone feeling that
the process was fair.
6. If males can wear it, why not females? Given the requirement for coverage,
how many dress choices for school attire are considered acceptable for males, while the
same choices are not considered acceptable for females? The default for student dress
should be one of equality and only a demonstration of unreasonableness should move
that default. This is particularly true when the weather is hot. Attire should fit the weather
in order for students to be comfortable in their work setting.
7. Sexualized clothing. The regulation of provocative clothing should be
approached carefully. Concepts of modesty and traditional values change over time.
While considerations of appropriateness are valuable, they can become ancient and
absurd customs. For example, the notion that female students should only wear dresses
or skirts is no longer a viable standard for regulating students' dress. When drafting
dress-code regulations, school administrators should consider whether traditional
understandings of modesty and appropriateness need to be revised in light of changing
cultural values.
8. Fair Rules, enforced fairly for all. Student dress regulations should be based
on the simple principle of fairness. Students should feel that they are being treated fairly
and equitably. Dress regulations that unfairly burden girls send a message that the
school environment is governed arbitrarily and capriciously.
9. The unreasonable, unnecessary, and unenforceable regulations. Eliminate
these regulations do not serve the goals of schooling or the interests of students.
*449 Schools can and must require appropriate dress within the schoolhouse gate. After
all schools are a special educational environment dedicated to educating youth. The
challenge is to find the right balance between an overly prescriptive environment and an
overly permissive environment. What lessons do students learn from dress codes that
target female students while privileging the education of male students? What lessons
do students learn from the inequalities of enforcement?
Footnotes
a1
The views expressed are those of the authors and do not necessarily reflect the views of the
publisher. Cite as 376 Ed.Law Rep. [421] (June 11, 2020).
aa1
Todd A. DeMitchell is the John & H. Irene Peters Professor of Education & Professor, Justice
Studies Program at the University of New Hampshire. He can be reached at
todd.demitchell@unh.edu. Christine Rienstra Kiracofe is Professor and Director of the Ph.D.
in Higher Education at Purdue University. Dr. Kiracofe can be reached at
ckiracofe@purdue.edu. Richard Fossey is the Paul Burdin Endowed Professor of Education
at the University of Louisiana at Lafayette. Nathan E. Fellman is a Ph.D. Student in the
Leadership & Policy Studies program at the University of New Hampshire and an Assistant
Principal at Ross A. Lugio Middle School, Bedford, New Hampshire.
1
Peggy Orenstein, Opinion: The Battle Over Dress Codes, NY TIMES, June 13, 2014,
https://www.nytimes.com/2014/06/14/opinion/the-battle-over-dress-codes.html.
2
The communication (Nov. 2, 2018) on this incident is in the possession of author DeMitchell.
Permission to use the incident was given by the student and her parents. Because the
student is a minor, all identifying information has been removed.
3
Christopher B. Gilbert, We Are What We Wear: Revisiting Student Dress Codes, 1999 BYU
EDUC. & L.J. 1, 3 (1999). See also, Deborah M. Ahrens & Andrew M. Siegel, Of Dress and
Redress: Students Dress Restrictions in Constitutional Law and Culture 54 HAR. C.R.-
CLL REV. 49, 51-2 (2019) (writing, “A substantial and rapidly growing percentage of
American public school students are now required to wear school uniforms, and a
significantly larger percentage are required to adhere to rigid dress codes that drastically limit
their sartorial choices.”)
4
See, e.g., Alexander LaCasse, Epping student told to remove Trump T-shirt, PORTSMOUTH
HERALD Portsmouth, NH (April 12, 2019). The 15-year-old freshman student wore a Trump
“Make America Great Again” T-shirt to school on school spirit day. The principal asked the
student to remove it fearing that the student would be harassed. One week later at a public
forum, the principal offered an apology along with the superintendent who noted that the T-
shirt incident created a “tsunami that impacted the school community, the community, even
the states and country.” Alexander LaCasse, Epping moves forward after T-shirt
incident, PORTSMOUTH HERALD, Portsmouth, NH (April 19, 2019). Hair regulations, as a
controversial topic about student appearance, have long been the topic of debate. A private
Catholic high school male sophomore was disciplined for his response to a directive to cut
his braided hair, which was above the collar but fell below the eyebrows and was in violation
of the school's dress code. Kristen Taketa, School suspended black student for
insubordination after wearing braids, THE SAN DIEGO UNION-TRIBUNE (Jan. 14, 2020),
https://www.sandiegouniontribune.com/news/education/story/2020-01-13/school-suspended-
black-student-three-days-for-wearing-braids. In an earlier hair regulation dispute, a black
high school wrestler, immediately before his match, was forced to choose between the
options of cutting his dreadlocks or not wrestling. New Jersey Governor Philip D. Murphy
characterized the choice as “between giving up who he is or giving up his ability to compete
was nothing short of disturbing.” Michael Gold & Jeffrey C. Mays, Civil Rights Investigation
Opened After Black Wrestler Had to Cut His Dreadlocks, NY TIMES (Dec. 21, 2018),
https://www.nytimes.com/2018/12/21/nyregion/andrew-johnson-wrestler-dreadlocks.html.
Since 2019 three states, California, New York, and New Jersey have passed laws “banning
discrimination based on hair styles or textures that are commonly associated with a person's
race or nationality.” Kalyn Belsha, States and cities are banning hair discrimination. Here's
how that's affecting schools, CHALKBEAT (Jan. 16, 2020),
https://chalkbeat.org/posts/us/2020/01/16/how-hair-discrimination-bans-are-affecting-
schools/?utm_source=newsletter&utm_medium=email&utm_campaign=cb_bureau_national
The author further stated, “Black students being disciplined for how they wear their hair have
fueled debates for years about the amount of control schools should be able to exert over
their students-particularly students of color.” Id.
5
Anlan Zhang, Lauren Musu-Gillette, & Barbara A. Oudekerk, Indicators of School Crime and
Safety: 2015, INSTITUTE OF EDUC. SERVICES, NAT'L. CTR. FOR EDUC.
STATISTICS (U.S. Dep't of Education & U.S. Department of Justice Office of Justice
Programs) (May 2016) at 103.
6
Zamecnik v. Indian Prairie Sch. Dist. , 636 F.3d 874 (7th Cir. 2011).
7
Bivens v. Albuquerque Pub. Schs , 899 F. Supp. 556 (D.N.M. 1995).
8
Galen Sherwin, 5 Things Public Schools Can and Can't Do When it Comes to Dress Codes,
ACLU, May 30, 2017, https://www.aclu.org/blog/womens-rights/womens-rights-education/5-
things-public-schools-can-and-cant-do-when-it-comes.
9
Ayiana Davis, et al., Dress Coded: Black girls, bodies, and bias in D.C. schools, NATIONAL
WOMEN'S LAW CENTER, April 5, 2018, https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-
content/uploads/2018/04/5.1web_Final_nwlc_DressCodeReport.pdf. A CNN report noted
that a national effort known as the CROWN ACT (Creating a Respectful and Open World for
Natural Hair), which focuses on protection against discrimination based on hair texture and
protective styles (see supranote 4 for a discussion of discrimination based on hair style)
resulted in three states introducing or advancing bills banning hair discrimination. Harmeet
Kaur, In just 1 week 3 states considered banning discrimination on hair texture or style, CNN
(Feb. 16, 2020), https://www.cnn.com/2020/02/16/us/hair-discrimination-bills-trnd/index.html.
10
Jeremiah R. Newhall, Sex-based Dress Codes and Equal Protection in Public Schools ,
12 APPALACHIAN J. L. 209, 224 (2013).
11
See, e.g., Lara Bricker, Middle School Students Work to Change Dress
Code, PORTSMOUTH HERALD (Portsmouth, N.H.) A6 (Oct. 21, 2016) (students challenged
a school's dress regulation specifying the length of shorts for girls and the strap-width
requirement for girls' tank top shirts).
12
Glenn A. Bowen, Document Analysis as a Qualitative Research Method, 9 QUAL. RES. J. 27
(2009).
13
For a discussion of dress code litigation see RICHARD FOSSEY & TODD A. DEMITCHELL,
STUDENT DRESS CODES AND THE FIRST AMENDMENT: LEGAL CHALLENGES AND
POLICY ISSUES (2014).
14
Bannister v. Paradis , 316 F. Supp. 185 (D.N.H. 1971) (overturning the prohibition against
wearing dungarees, writing, “It can be fairly concluded that wearing clean blue jeans does
not constitute a danger to the health or safety of other pupils and that wearing them does not
disrupt the other pupils.') id at 186.
15
Blau v. Fort Thomas Pub. Sch. Dist. , 401 F.3d 381, 386 (6th Cir. 2005).
16
Id. at 399-400.
17
Bell v. Anderson Community Schs , No. 1:07-cv-00936-JDT-WTL, 2007 WL 2265067 (S.D.
Ind. Aug. 6, 2007).
18
Id. at *7 citing to Blau, 401 F.3d at 390 and Brandt v. Bd. of Educ. , 480 F.3d 460, 465 ((7th
Cir. 2007).
19
TODD A. DEMITCHELL & RICHARD FOSSEY, THE CHALLENGES OF MANDATING
SCHOOL UNIFORMS IN THE PUBLIC SCHOOLS: FREE SPEECH, RESEARCH, AND
POLICY, 6 (2015).
20
JUSTIN DRIVER, THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME
COURT, AND THE BATTLE FOR THE AMERICAN MIND, 132 (see asterisk) (2018).
21
Id. at 131.
22
Richards v. Thurston , 424 F.2d 1281, 1285 (1st Cir. 1970).
23
Fossey & DeMitchell, supra note 13, at 5.
24
For a discussion of school uniforms, see, e.g., DeMitchell & Fossey, supranote 19; Ronald D.
Wenkart, School Uniform Policies, School Dress Codes, and the First Amendment: A Fourth
Category of Student Speech , 238 Ed. Law Rep. 17 (2008); Todd A. DeMitchell, & Mark A.
Paige, School Uniforms in the Public Schools: Symbol or Substance? A Law & Policy
Analysis , 250 Ed. Law Rep. 847 (2010).
25
Fossey, & DeMitchell, supra note 13 at 101.
26
Nelda Cambron-McCabe, “Students' Speech Rights In an Electronic Age.” 242 Ed. Law Rep.
493 (2009).
27
Tinker v. Des Moines , 393 U.S. 503 (1969).
28
Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675 (1986).
29
Hazelwood v. Kuhlmeier , 484 U.S. 260 (1988). The U.S. Supreme Court took up a student
free speech case two years after Bethel in Hazelwood v. Kuhlmeier , 484 U.S 260 (1988),
which added further restrictions on the free speech of students in public school settings. At
issue in Hazelwood was the potential publication of two student-authored articles in the
school newspaper as part of a journalism class. Upon reviewing the articles before their
publication, the principal made the determination that the two submitted articles (one dealing
with divorce and one with teen pregnancy) would not be published. A lawsuit ensued that
went all the way to the Supreme Court. The Court emphasized that this case was unlike
previous cases in that it dealt specifically with school-sponsored speech. As such, the Court
developed a new judicial test, holding that the principal had a legitimate pedagogical reason
for censoring the selected articles (id. at 273) especially when the speech was school
sponsored or bore the imprimatur of the school (id. at 271)
30
Morse v. Frederick , 551 U.S. 393 (2007). In 2002, the winter Olympics torch was scheduled
to pass by a Juneau high school. As students were assembled along the street across from
the high school to watch the procession, student Joseph Frederick held up, with the help of
some of his peers, a large homemade sign that read “BONG HITS 4 JESUS.” Frederick was
subsequently suspended by his principal Deborah Morse. The Court found for the school
district, establishing a new judicial test allowing the censorship of speech related to the use
of illegal drugs. The majority decision affirmed the authority of school officials to ban student
expression in the school environment that officials could reasonably interpret as promoting
illegal drug use. For a more in-depth discussion of the Morse v.
Frederickdecision, see Kathleen Conn, The Long and Short of the Public School School's
Disciplinary Arm, Will Morse v. Frederick Make a Difference? 227 Ed. Law Rep. 1 (2008).
31
Martha McCarthy, Student Expression Rights: Is a New Standard on the Horizon? 216 Ed.
Law Rep. 15 (2007).
32
Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 504 (1969).
33
Tinker v. Des Moines , 258 F. Supp. 971, 972 (S.D. Iowa 1966).
34
Id.
35
Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 383 F.2d 988 (Mem.) (8th Cir. 1967), rev'd, 393
U.S. 503 (1969).
36
Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503 (1969).
37
Id. at 504.
38
Id. at 508.
39
Id.
40
Id.
41
Burnside v. Byars , 363 F.2d 744 (5th Cir. 1966).
42
Tinker, 393 U.S. a t 509.
43
Id. at 507.
44
Id.
45
Id. at 513.
46
Id. Professor Driver asserts that Tinker's “reasonable-forecast-of substantial disruption test
has emerged as the dominant approach.” (Driver, supra note 20, at 87).
47
Id. at 508. See Todd A. DeMitchell, Richard Fossey, & Casey Cobb, Dress Codes in
the Public Schools: Principal, Policies, and Precepts, 39 J. L. & EDUC. 31, 36 (2000)
(writing, “Consequently, the second prong of Tinker may add to a dress code that seeks to
protect the school environment from unwelcome, unwanted, and uncivil expression.”). For an
application of this prong of Tinker to a dress code, see Harper v. Poway Unif. Sch. Dist., 445
F. 3d 1166, 1182 (9th Cir. 2006) (holding, that public schools can ban students from wearing
T-shirts “that flaunt demeaning slogans, phrases or aphorisms relating to core characteristics
of particularly vulnerable students and that may cause them significant injury.”) See,
also McCarthy, supra note 31 for a discussion on the vitality of the second prong.
48
Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675 (1986).
49
Fraser v. Bethel Sch. Dist. No. 403, 755 F.2d 1356, 1357 (1986), rev.d, 478 U.S. 675 (1986).
50
Id. a t 1359.
51
Id. at 1360.
52
Id. at 1357. The school's handbook characterized disruptive conduct using Tinker-specific
terminology, stating that disruptive conduct is “[c]onduct which materially and substantially
interferes with the educational process.”
53
Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 680 (1986).
54
Id. at 681.
55
Id. at 683.
56
Palko v. Connecticut , 302 U.S. 319, 327 (1937).
57
Texas v. Johnson , 491 U.S. 397, 414 (1989).
58
Tinker, 393 U.S. at 506 (1969).
59
DeMitchell, et al., supra note 47, at 47.
60
See Ginsberg v. New York , 390 U.S. 629 (1968).
61
The Supreme Court supported this proposition writing, “We have recognized the public
schools as a most vital civic institution for the preservation of a democratic system of
government and as the primary vehicle for transmitting the values on which our society
rests.” (Plyler v. Doe , 457 U.S. 202, 221 (1982)).
62
Jessica Wolfendale, Dangerously Provocative, DANGEROUS WOMAN PROJECT July 4,
2016, http://dangerouswomenproject.org/2016/07/04/dangerously-provocative/.
63
Pugsley v. Sellmeyer , 250 S.W. 538, 539-40 (Ark. 1923).
64
Newton Edwards, Legal Authority of Boards of Education to Enforce Rules and Regulations,
31 ELEM. SCH. J. 466, 466 (1931).
65
Jacobs v. Clark Cnty. Sch. Dist., 373 F. Supp. 2d 1162, 1172 (D. Nev. 2005).
66
DeMitchell, et al., supra note 47 at 45.
67
Schonecker v. Koopman , 349 F. Supp. 3d 745, 747 (E.D. Wis. 2018). The court heard a
motion for a preliminary injunction (plaintiff) and a motion to dismiss (defendant). The
plaintiff's motion was granted, while the principal's motion was denied.
68
The amended Markesan High School Handbook 2018-19 at 24 ECF No. 21-1 reads:
Clothing or articles displaying obscenities, suggestive slogans and/or images, nudity, gangs,
crime, violence, occult worship, slanderous or harassing material, encouragement of
disruptive behavior, weapons, beer/alcohol, tobacco, marijuana or other drug designs are
prohibited. Id. at 478.
69
Id.
70
Id.
71
Id. at 752-3.
72
Id. at 753.
73
See DeMitchell & Fossey, supra note 19, at 57. See also Jacobs v. Clark Cnty Sch. Dist. ,
526 F.3d 419, 422 (9th Cir. 2008)(“Public school districts across the country have
increasingly turned to the adoption of mandatory dress policies, sometimes referred to as
‘school uniforms policies,’ in an effort to focus student attention and reduce conflict.”).
74
Natalie Pate, Salem-Keizer Public Schools to revamp dress code students consider “archaic”
and “sexist,” STATESMAN JOURNAL (Salem, Oregon), June 18, 2019,
https://www.statesmanjournal.com/story/news/education/2019/06/18/salem-keizer-school-
district-dress-code-policy-students-protest/1433039001/.
75
Meredith Johnson Harbach, Sexualization, Sex Discrimination, and Public School Dress
Codes , 50 U. RICH. L REV. 1039, 1043 (2016).
76
A copy of this letter is in the possession of co-author DeMitchell. Identifying information has
been stripped from the communication.
77
Kira Barrett, When School Dress Codes Discriminate. NEATODAY, July 24, 2018,
http://neatoday.org/2018/07/24/when-school-dress-codes-discriminate/. See also, Matt
Zalaznick, School Districts Loosen Dress Code after Gender-Bias Complaints, DISTRICT
ADMIN., July 16, 2018, https://www.districtadministration.com/article/school-districts-loosen-
dress-codes-after-gender-biascomplaints.
78
Brenda Alvarez, Girls Fight Back Against Gender Bias in School Dress Codes, NEATODAY,
January 6, 2016), http://neatoday.org/2016/01/06/school-dress-codes-genderbias/.
79
The U.S. Supreme Court declared that a classification based upon gender must survive
“intermediate scrutiny.” Reed v. Reed , 404 U.S. 71 (1971). “To withstand constitutional
challenge .... classifications by gender must serve important governmental objectives and
must be substantially related to achievement of those objectives.” Craig v. Boren , 429 U.S.
190, 197 (1976).
80
Jones v. W.T. Henning Elem. Sch. , 721 So.2d 530, 532 (La. App. 1998).
81
Hines v. Caston Sch. Corp. , 651 N.E.2d 330, 336 (Ind. App. 1995).
82
Suzanne Eckes, Todd A. DeMitchell, & Richard Fossey, Breaking Social Norms at Prom: Is
There a Constitutional Right to Wear Gender Nonconforming Attire at the Prom? PRINCIPAL
LEADERSHIP 10, 12 (April 2015).
83
For example, noting some of the dress code restrictions from the DeMitchell et al. study and
comparing them to the New Hampshire random sample of dress code policies found that the
following restrictions from 2000 do not appear in the current research: no make-up, no black
lipstick, no Butt Naked Apparel, no athletic girdles, no cross dressing, no visible tattoos, no
hair rollers, no swimming attire, no beard, and no prescribed hair length for males.
DeMitchell, et al, supra note 46, at 44. It is noteworthy that what was forbidden in 2000 was
not even mentioned almost 20 years later in New Hampshire. Twenty years from now will
educators find that now-accepted student-dress restrictions were not more than an “ancient
and absurd custom”? See Morrison v. State Bd. of Educ. , 461 P.2d 375, 383 (Cal. 1969)
(citing a list of conduct that was once considered immoral and unprofessional that had come
to be seen as “ancient and absurd customs.”).
84
Sasha Jones, Do School Dress Codes Discriminate Against Girls, EDUC. WEEK, Aug. 31,
2018), https://www.edweek.org/ew/articles/2018/09/05/do-school-dress-codes-discrimate-
against-girls.html. For a further example of the reach of this reaction to dress codes sections
that target female students, see Mackenzie Mays, Teen Boys Don Dresses to Protest School
Dress Code, MIAMI HERALD (Miami, FL), Feb. 2, 2016,
https://www.miamiherald.com/news/nation-world/national/article57871978.html. One of the
female students who switched gender norms for dress stated, “Our district's dress code
should not favor or discriminate against any gender. We believe everyone should be able to
express themselves equally.” Id.
85
For an example of community norms see Loumay Alesali & Christina Zdanowicz, She Told
Them Leggings Were Too Suggestive, So They Wore Them In Protest, CNN, Mar. 31, 2019,
https://www.cnn.com/2019/03/28/us/mothers-problem-with-leggings-trnd (writing, “Leggings
are so naked, so form fitting, so exposing .... ‘You couldn't help but see those blackly naked
rear ends. I don't want to see them-but they were unavoidable. How much more difficult for
young guys to ignore them.”’ Id.
86
See Alyssa Pavlakis & Rachel Roegman, How dress codes criminalize males and sexualizes
females of color, PHI DELTA KAPPAN, September 24, 2018,
https://kappanonline.org/pavlakis-roegman-dress-codes-gender-race-discrimination/ (quoting
Emma, a White female teacher discussing the unequal enforcement of a dress code at her
high school, “When you have a Black girl and a White girl walking down the hall, and the
Black girl gets called out. I mean, that's the issue.”). For an insightful analysis of African
American female students, see Edward M. Morris, Ladies or Loudies? Perceptions and
Experiences of Black Girls in Classrooms, 38 YOUTH & SOCIETY 490 (2007).
87
Tawnell D. Hobbs, Schools Relax Dress Codes in Bid to End Body ShamingWALL STREET
JOURNAL, July 13, 2019, https://www.wsj.com/articles/schools-relax-dress-codes-in-bid-to-
end-body-shaming-11563010202.
88
Jones, supra note 84.
89
See Eliza Murphy, Student Forced to Wear ‘Shame Suit’ for Dress Code Violation,
ABCNEWS (Sept. 4, 2014, 5:43 PM), http://abcnews.go.com[US/student-forced-wear-
shame-suit-dress-code-violation/story?id=25252041 (requiring students to wear red sweat
pants and an oversized neon yellow shirt with the statement “Dress Code Violation); Laura
Bates, Opinion, How School Dress Codes Shame Girls and Perpetuate Rape
Culture, TIME (May 22, 2015), http://time.com/3892965/everydaysexism-school-dress-
codes-rape-culture/.
90
Harbach, supra note 75 at 1942.
91
Kelly Wallace, Do school dress codes end up shaming girls? CNN, May 30, 2017,
https://www.cnn.com/2017/05/30/health/school-dress-codes-body-shaming-girls-
parenting/index.html.
92
Id. The blog post on today.com was viewed 2 million times.
93
Id.
94
Id.
95
Wallace, supra note 91.
96
Peltier v. Charter Day Sch., Inc. , 384 F. Supp. 3d 579, 587 (E.D.N.C. 2019).
97
Id. at 584.
98
Id. at 587.
99
Id. at 588.
100
Id. at 596. This seems to argue that the dress of girls influences the behavior of boys, once
again placing the responsibility for boys' behaviors on girls' actions and decisions.
101
Id. at 597.
102
Id. Furthermore, the court found that “[w]hile defendants emphasize that the uniform policy is
most frequently enforced against boys for failure to wear a belt, there is no evidence that
wearing a belt inhibits the boys' ability to fully participate in the programs or activities of the
School.” Id. For an application of this standard to workplace dress and grooming
codes, see Jesperson v. Harrah's Operating Co., 444 F.3d 1104, 1110 (9th Cir.
2006) (asserting, that appearance and grooming policies may differentiate between men and
women. “The material issue under our settled law is not whether the policies are different but
whether the policy creates an ‘unequal burden’ for the plaintiff's gender.”)
103
For a discussion of the application of equal protection to dress codes, see
Harbach, supra note 75, at 1052-1057 (writing, “All these factors suggest that even when
schools can articulate legitimate and nondiscriminatory justifications for their dress policies,
their methods of implementation and enforcement raise serious sex-discrimination
concerns.”) at 1057.
104
Richard Fossey & Todd A. DeMitchell, Peltier v. Charter Day School: A Charter School's
Regulation Requiring Female Students to Wear Skirts is Ruled Unconstitutional, TEACHERS
COLL. RECORD, May 22, 2019, https://www.tcrecord.org, ID Number 22803.
105
Peltier v. Charter Day Sch., Inc. , 384 F. Supp. 3d at 596.
106
Rebecca Raby, Tank Tops Are OK but I Don't Want to See Her Thong: Girl's Engagement
With Secondary School Dress Codes, 41 YOUTH & SOC'Y 333 (2010).
107
Id. at 334.
108
For a discussion of provocative dress, see Wolfendale, supra note 62, at 618 writing “The
social privileging of male sexual desire occurs when men's sexual desire is taken as a ‘given’
that women must try to monitor and negotiate through their behavior and outfits.”
109
Raby, supra, note 106, at 339-40.
110
Id. at 340.
111
Id. at 341.
112
Id. Patricia from Focus Group 1, echoing the discussion, infra Section IV (A), stated, “But you
know what's really wrong though, that all girls' clothes are made to be a slut.” Id. In Edward
W. Morris' two-year ethnographic study, supra note 86, identified the term “hoochie mama”
clothing described as “overly provocative” and “inappropriate.” Id. at 18.
113
Id. at 343.
114
Id. at 343-44.
115
Id. at 345.
116
Id. at 344.
117
Id.
118
Id. at 346. Nicole (Focus Group 3) stated about revealing clothing, “This girl that was in my
tech class in Grade 9. We all sat on stools and she'd sit in front of me and she'd pull her
thong out of her pants, so you could see it when she sat down. I'm just like [look of surprise].
And then I'd ask her ‘could you please not do that,’ and she's like ‘look somewhere else!’ It's
like ‘where else do you look?’ There!” Id. at 347.
119
Author, Oregon NOW Model Student Dress Code, 2016, NATIONAL ORGANIZATION FOR
WOMEN, February 2016 https://noworegon.org/wp-
content/uploads/sites/12/2018/01/or_now_model_student_dress_code_feb_2016_1_.pdf.
The policy was written for the Portland, Oregon School District.
120
Our values are:
• All students should be able to dress comfortably for school without fear of or actual
unnecessary discipline or body shaming.
• All students and staff should understand that they are responsible for managing their own
personal “distraction” without regulating individual students' clothing/self expression.
• Teachers can focus on teaching without the additional and often uncomfortable burden of
dress code enforcement.
• Students should not face unnecessary barriers to school attendance.
• Reasons for conflict and inconsistent discipline should be minimized whenever possible.
Id. at 1.
121
See Nadra Nittle, Students are waging war on sexist and racist dress codes-and they're
winning, VOX, Sep. 13, 2018, https://www.vox.com/the-goods/2018/9/13/17847542/students-
waging-war-sexist-racist-school-dress-codes; Sabrina Rojas Weiss, These school districts
are actually changing their dress codes in response to student complaints, YAHOO, August
8, 2018, https://www.yahoo.com/lifestyle/school-districts-actually-changing-dress-codes-
response-student-complaints-225203474.html.
122
Samantha Matsumoto, Oregon's ‘Model Dress Code’ Aims to Make School Policies More
Fair, OPB (Portland, Oregon) Sept. 21, 2018,
https://www.opb.org/radio/programs/thinkoutloud/segment/oregon-model-dress-code-
portland-public-schools/ (writing, “And more and more schools are listening to these protests,
adopting guidelines that reflect a new understanding of what constitutes “appropriate”
student dress.”)
123
Oregon NOW, supra note 119, at 2 (emphasis in original).
124
Id. at 3. Educators may reasonably question whether wearing pajamas to school is
appropriate.
125
“A school dress is only as effective and fair as its enforcement”, id. at 4.
126
Id. at 5.
127
A few examples of types of clothing that gave rise to court cases include Isaacs v. Bd. of
Educ. Howard Cnty. , 40 F.Supp. 2d 335 (D. Md. 1999)(holding that the dress code regulation
against hats including head-wraps was constitutional) as well as cases discussed
above Blau, supra at notes 9-10, wearing clothing that she liked, and Bell, supra notes 11-
12. Had the Model policy been in place it is arguable that the student plaintiffs in the cases
above would not have been kept from wearing their chosen attire.
128
See Fossey & DeMitchell, supra note 13.
129
An undergraduate's partial response to a school law class assignment on dress codes and
school uniforms. The assignment is used with the permission of the student and is in the
personal files of author DeMitchell.
130
Co-author DeMitchell has the supporting document for this school's practice.
131
See, e.g., CATHERINE MARSHALL, DOUGLAS MITCHELL, & FREDRICK WIRT, CULTURE
AND EDUCATION POLICY IN THE AMERICAN STATES (1989); DEBORAH A. STONE,
POLICY PARADOX AND POLITICAL REASON (1988); L.W. DOWNEY, POLICY ANALYSIS
IN EDUCATION (1988); DAVID EASTON, THE POLITICAL SYSTEM (1953)
132
FRANCES C. FOWLER, POLICY STUDIES FOR EDUCATIONAL LEADERS: AN
INTRODUCTION 5 (4th ed., 2013).
133
PATRICIA F. FIRST, EDUCATIONAL POLICY FOR SCHOOL ADMINISTRATORS (1992).
134
Author, An Introduction to Document Analysis: Triad 3, RESEARCH METHODOLOGY IN
EDUCATION (March 9, 2016), https://lled500.trubox.ca/2016/244.
135
Bowen, supra note 12 at 28.
136
Id. at 32.
137
Dress Code Policy #16. The dress code policy is in the files of co-author DeMitchell.
138
Dress Code Policy #11. The dress code policy is in the files of co-author DeMitchell.
139
For a discussion on vagueness as a principal of due process and the use of the reasonable
person standard in a school law student discipline case seethis judicial explanation,
If people of common intelligence must guess at an enactment's meaning and differ as to its
application, the law is unconstitutionally vague and is void. Accordingly, an enactment must
define the prohibited conduct with sufficient definiteness such that an ordinary individual
understands just what conduct is prohibited and must define the prohibited conduct in a
manner discouraging arbitrary and discriminatory enforcement Wiemerslage v. Maine
Township High Sch. Dist. 207, 824 F.Supp. 136, 139-140 (N.D. Ill. 1993)
140
Dress Code Policy #14. The dress code policy is in the files of co-author DeMitchell.
141
Dress Code Policy #15. The dress code policy is in the files of co-author DeMitchell.
142
Dress Code Policy #17. The dress code policy is in the files of co-author DeMitchell.
143
Dress Code Policy #25. The dress code policy is in the files of co-author DeMitchell.
144
Shauna Pomerantz, Cleavage in a Tank Top: Bodily Prohibition and discourses of School
Dress Codes, 53 ALBERTA J. EDUC. RES. 373, 373 (2007).
145
Dress Code Policy #5. The dress code policy is in the files of co-author DeMitchell.
146
Amber Thomas, The sexualized messages DRESS CODES are sending to students, THE
PUDDING Feb. 2019, https://pudding.cool/2019/02/dress-code-sexualization/.
147
Raby, supra note 106.
148
Wolfendale, supra note 62.
149
Bivens v. Albuquerque Pub. Schs . 899 F. Supp. 556, 559 (D.N.M. 1995).
150
Pomerantz, supra note 144 at 380.
151
Id. at 375.
152
Id.
153
Id. at 376 (emphasis in original).
154
Id. at 374.
155
Steve Nelson, Dress Codes in Schools: Spaghetti Straps, Midriffs; Adults' Need for Control,
HUFFPOST (June 1, 2017), https://www.huffpost.com/entry/dress-codes-in-schools-
sp_b_10223596.
156
Many dress code policies specifically address the issue of cleavage. This can be a
particularly difficult issue to reconcile from a gender-neutrality standpoint. While the term
cleavage technically applies to both sexes, dress code policies are often written in a way that
disproportionately affect large breasted female students.
157
Talia Lakritz, 18 times students and parents said school dress codes went too
far, INSIDER (Feb. 14, 2019), https://www.insider.com/school-dress-code-rules-controversy--
2018-8.
376 WELR 421
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
