September 12, 2018

This conversation is not just about leggings or tank tops. It is a bigger issue that zeroes in on unequal enforcement of a student dress code in violation of the Constitution and various civil rights statutes designed to prevent discrimination on the basis of sex.  All school administrators should reexamine their dress codes to guard against unfair practices, guidelines or policies, whether in the classroom, on the internet.

Please note that while the Kenosha Unified School District (KUSD) has responded to the ACLU on numerous occasions, they have not responded to ACLU guidelines yet.  The report the ACLU of Wisconsin received from a female student in July who was reprimanded for wearing a tank top in gym class did not result in the girl being sent home but rather threatened with being sent home two days in the row. The actual outcome of that student’s punishment is unclear, due to KUSD’s practice of failing to document incidents related to the dress code violations.

Moreover, while KUSD’s response that the policy is fair as of March 2018, it is clearly not fairly enforced.  The guidelines for enforcement of the dress code were an administration document not shared with teaching staff and made no commitment to anti-discriminatory enforcement. The school district did not include any precise steps for training staff on consistent practices for monitoring the dress code in the future.

Some guidelines to consider are:

  • Public schools cannot discriminate based on the viewpoint expressed by the student's clothing. 
  • The Supreme Court has recognized that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The First Amendment prohibits schools from picking and choosing which views students are allowed to express. 
  • Dress codes cannot be explicitly discriminatory. While dress codes may specify types of attire that are acceptable, these requirements should not be different based on students’ sex (or their race, for that matter — though race distinctions in dress codes are not always clear in the policy). 
  • A dress code should not require girls, and only girls, to wear skirts or dresses and boys, and only boys, to wear pants or a jacket and tie. 
  • A school can specify “formal attire,” or even “gowns or tuxedoes,” but it cannot require that girls, and only girls, wear gowns or that only boys may wear a tux.
  • Dress codes cannot target or unevenly enforce against particular groups of students as that may violate laws prohibiting race and sex discrimination. 
  • Dress codes should not target or be unevenly enforced against girls for wearing clothing that is considered a “distraction” to boys in the classroom — reinforcing stereotypes about how “good girls” dress and privileging boys’ ability to concentrate over girls’ comfort and ability to learn.

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