Addressing School Dress Codes
By: Anonymous William & Mary Law Student, Class of 2024
When I graduated high school, each student crossed the stage wearing a cap and gown in the school colors. As a longstanding practice, girls wore white; boys wore green. I remember some of my friends questioned why robes were assigned by sex. This could pose a challenge for trans or gender non-conforming students. Could a student request a different color? What if someone was out to classmates, but not to parents? What if a student was non-binary, fluid, or gender non-conforming?
The color of regalia, something so seemingly unremarkable, could overshadow a student’s hard-earned achievements. Though graduation was just one day of my high school experience, schools implement daily dress codes that reify gender norms and racial stereotypes. Though the law purports to protect against discriminatory practices in schools, dress codes deprive marginalized students of a full education.
I. How Dress Codes Harm Marginalized Students
Dress codes are harmful for two reasons. First, dress codes are based on stereotypes and police students’ bodies to reinforce racist and sexist hierarchical structures. Second, schools disproportionately enforce dress codes. This not only demeans vulnerable students and stifles their education, but also increases rates of school discipline and exposure to the juvenile justice system.
A. Dress Codes Reinforce Racist, Sexist Hierarchical Structures
Dress codes impose a vision of girlhood that fluctuates with social norms. Consider the past “scandalous” ways of dressing: 1905, not wearing a corset under your shirtwaist was scandalous; 1925, rolling your stockings (bare legs!); 1945, wearing bobby socks (more bare legs!). Dress codes teach that parts of girls’ bodies are inherently bad or important to others and imply that her body’s appearance is extremely important to her. (Hartnett) Dress codes reinforce body shaming culture, and some link them to eating disorders. Schools cite safety issues for LGBTQ students to justify dress codes.
For example, a student shot and killed their classmate, Lawrence King, an eighth grader from Oxnard, CA, who occasionally wore high-heeled boots and makeup. This approach shifts the onus to prevent such violence onto its victims by complying with social norms rather than addressing those who commit the violence. Dressing inconsistently with one’s gender worsens the already staggering rates of depression and suicidality in trans youth (and vice versa: presenting oneself consistently with one’s gender can alleviate these symptoms).
Schools also endorse dress codes to prevent disruptions in instructional time, again placing the burden on students to comply with gender norms rather than the students who disrupt class. Dress codes assume that girls must cover up their bodies to avoid distracting other students from their education. But in turn, schools objectify students and impede their learning when removing students from class to enforce dress codes. The question then, is which students pay the price for the sexualization of girls’ bodies?
Dress codes are also part of a racial hierarchy. Dress codes and grooming codes prohibit certain hairstyles or cultural staples like headscarves. Along with pajamas, a high school in Houston banned leggings, bonnets, durags, and saggy pants. Dress codes are a part of respectability politics, policing the conduct of minorities to fit white standards of decorum. These dress codes deem which bodies, cultures, and appearances are professional, safety, and respectful. Dress codes rely on prejudice which, along with the power that schools wield, threaten students’ wellbeing.
B. Schools Disproportionately Enforce Dress Codes, Increasing Consequences of Discipline for Vulnerable Students
Furthermore, schools do not equitably enforce dress codes. When clothes fit differently on different bodies, the implicit biases of school administrators result in discriminatory policies that hurt Black girls the most. Black girls are viewed as more adult than their white peers at almost all stages of childhood, especially during the ages of 10 to 14, continuing through ages of 15 to 19.
Adultification is not just misestimating ages. This process places distinct expectations of Black girls during critical developmental periods. They are seen as threatening and needing less protection. This dehumanizes Black children and contributes to the narrative that their actions are intentional or malicious, instead of appropriately childlike. Black children are denied the opportunity to learn by safely making mistakes. Schools are one place in which students build their identities around race, class, and gender. School policies and teacher biases reproduce and exaggerate preexisting inequalities in these areas.
Because Black girls are viewed as more adult than white peers, they are more vulnerable to discretionary authority of teachers or law enforcement. Dress code policies afford a great deal of discretion to teachers and administrators. Implementing dress codes relies on cultural norms, rather than objective standards. For example, black girls are twice as likely than their white peers to be disciplined for minor violations, like dress codes.
The consequences of disproportionate discipline reach beyond missing class or needing to change an outfit. 2/3 of suspensions in Massachusetts in 2012-13 were for nonviolent, noncriminal, non-drug related offenses. (Julien 2208-2210). Massachusetts is not alone: schools across the country suspend students for violating a dress code.
Black girls are more likely to be disciplined for subjective infractions and are disproportionately suspended. In the 2013-2014 school year for grades K-12, Black girls were 15.6% of girls enrolled; 38.6% of in-school suspensions; 41.6% of single suspensions; and 52% of multiple suspensions. On the other hand, white girls were 50.1% of enrollment; 32.9% of in school suspensions; 28.4% of single suspensions; and 22.7% of multiple suspensions.
When students are suspended, they are more likely to be arrested. Suspensions connect to higher dropout rates and increased risk of contact with the justice system. Additionally, many schools appear to be using the juvenile justice system to a greater extent and in a relatively large percentage of cases, for infractions that would not have previously have been dangerous or threatening.
Data shows how differential treatment extends beyond schools and through the juvenile justice system, including police, probation, defense attorneys, prosecutors, judges. The system treats Black girls more punitively, as compared to their white peers. Black girls are more likely to be referred to juvenile justice, more likely to be detained, and less likely to have their case diverted.
Consider the following data. In the 2013-14 school year, Black girls were 15.6% of all girls enrolled in K-12 schools but 28.2% of all girls referred to law enforcement and 37.3% of all girls arrested. White girls were 50.1% of all girls enrolled but 34.3% of all girls referred to law enforcement and 30.2% of all girls arrested. Knowing these statistics and understanding how dress codes are discriminatory raises the question: how can the law protect students?
II. How can the law, if at all, protect against harmful dress codes?
Knowing these statistics and understanding how dress codes affect students sparks a question: how can the law protect students? Dress codes seem to violate many of the values imbedded in the law: free expression, equal protection, and prohibiting the government from discriminating based on gender or race. Students may bring legal challenges under the constitutions and statutes of the federal government or a state.
A. Federal Law
The First Amendment forbids the government from restricting an individual’s freedom of assembly, religion, speech, or expression. One argument against dress codes is that they infringe upon students’ rights to free expression through dress. The Supreme Court has not directly addressed how dress codes may violate the First Amendment. The closest analogous ruling is Tinker v. Des Moines Independent Community School District, 383 U.S. 503 (1969), in which the Court ruled that the First Amendment protected students who wore armbands in protest of the Vietnam War.
More recently, a student raised a claim about dress codes and the right to free expression. K.K. Logan is an African-American person whose sex is male and gender expression is feminine. His peers and teachers embraced him through his senior year as he wore makeup, hair extensions, and carried a purse. When K.K. arrived at prom, however, his principal physically blocked him from entering the venue.
The school said his dress—violated the school’s prohibition on “advertising’ one’s sexual orientation. K.K. sued the school, alleging the principal violated his First Amendment rights. He settled, dropping the suit in exchange for payment and revised school policies. Because courts increasingly defer to schools and hesitate to interfere with how schools educate or discipline students, the First Amendment is not likely to protect against most dress codes.
The Fourteenth Amendment to the U.S. Constitution guarantees, among other things, equal protection of the laws. In other words, the government must treat similarly situated individuals the same. Dress codes that require different groups to dress differently may violate the Fourteenth Amendment.
The Fourth Circuit recently grappled with this issue when students at a charter school in North Carolina challenged that school required all female students to wear skirts. The school defended the dress code as part of its traditional values, like preserving chivalry. The school explained chivalry as a “code of conduct where women are . . . regarded as fragile vessels.” Because the dress code distinguished between sexes based on archaic stereotypes, it violated the Equal Protection Clause of the Fourteenth Amendment.
Schools may also violate the Fourteenth Amendment by unevenly enforcing a dress code. For example, students spoke out when the school suspended female athletes for practicing in sports bras, while allowing male athletes to practice without any shirts. Arguing that dress codes are unconstitutional is likely a difficult feat because 1) courts give broad deference to schools; and 2) the narrow scope of discrimination as conceived by constitutional law does not encompass how dress codes harm students.
Unlike the North Carolina school’s skirt requirement, most dress codes do not explicitly distinguish between groups. A neutrally written dress code is not unconstitutional solely because it disproportionately affects a protected group. Rather, one would need to show that the school enacted the dress code to serve a discriminatory purpose. Schools purport that dress codes facilitate learning and promote safety. These are reasonable, nondiscriminatory goals, especially given that courts give schools wide latitude in deciding how to educate.
Additionally, equal protection jurisprudence siloes different aspects of identity. Widely, courts have not recognized how rules (like dress codes) discriminate based on both race and gender at once, affecting women of color differently than either white women or men of color. Kimberle Crenshaw, who coined the term intersectionality, described this using employment law. The law is unequipped to address the ways that racism, sexism, classism, ableism, and other modes of oppression are inextricably intertwined. Because schools enforce mostly neutral dress codes that insidiously discriminate against marginalized students, courts are likely to uphold them.
Other aspects of federal law beyond the Constitution may apply to dress codes. Two provisions of the Civil Rights Act of 1964, Title IX and Title VII, prohibit discrimination based on sex and race on programs that receive federal funding (Title IX is limited to education programs, while Title VI applies to any program).
The skirt requirement challenged in Peltier also violated Title IX, and most schools eliminated such requirements after Title IX was enacted. Challenges to racially discriminatory dress codes, brought under the Constitution and Title VI, have had mixed results. Under Title VII, students cannot challenge dress codes that are neutral but have a disparate impact on one race. Students may be more successful in challenging dress codes by going through the agencies charged with enforcing these laws. Filing complaints with the Department of Education allows the agency to intervene and often encourages public attention to the issue. Continued filing may also prompt the Department to craft regulations or guidance on dress codes.
B. State and Local Law
Students may also challenge how dress codes infringe on rights secured by state constitutions, which may more broadly protect individuals. One student in Massachusetts challenged how her school applied its dress code. Over a period of several years, the school repeatedly sent a student home for wearing “girls’ clothing.” She eventually stopped attending school altogether and was held back a grade. The next year, the school instructed her family that she could not enroll if she continued to wear “girls’ clothing and accessories.”
The court found that the school was likely infringing on her right to freely express herself through clothing. The school could not legally prevent her from doing so because other students or teachers react to her clothing unfavorably. Nor could the school exert authority over students to enforce gender stereotypes.
Additionally, states and municipalities may protect students. For example, New York City and State laws protect students’ rights to wear clothing that corresponds to their gender identity and expression. Schools may not compel students to shave or groom their hair to look more masculine or feminine. Furthermore, the law obliges school faculty, administrators, and staff to protect students from other students who harass or discriminate against them. School districts, like one in Tucson, enacted policies to prevent schools from discriminating on gender identity, gender expression.
III. Conclusion: How can we change dress codes?
Often, discriminatory practices lurk under facially neutral policies that were ostensibly enacted for compelling reasons. Schools, students, and families alike can agree that schools should foster a safe learning environment and help students develop strong values, social competencies, and positive identities. However, no comprehensive educational theory supports dress codes. Educators advocate for caring, democratic classrooms to facilitate learning but undermine that goal by inconsistently enforcing dress codes.
Dress codes are harmful on their own and are especially invidious because they are entangled with other modes of policing identity. These practices insidiously send a message to students about who belongs, who deserves a full education. Litigation and legislation may shape dress codes, but the law is not consistently capable of untangling the web of racism and sexism in schools.
The prospects of establishing more equitable dress codes, or ending them altogether, may seem bleak. But the law is only one way to spark change and successful advocacy requires multiple approaches. Furthermore, shifting public opinion and community values often precede shifts in the law. By persistently voicing their opinions and sharing their experiences, students can shift the tide. Students have power: just three years after I graduated from high school, the policy changed so all graduates wore the same color robes. The class that graduated three years after I did all wore green robes. Given the increase of laws targeting youth and schools, it’s increasingly important for students and communities to amplify marginalized voices and advocate for inclusive, equitable education.