The Injustices of Public School Dress Codes

On October 21, 2019, I rose in the open forum at the Green Bay Area Public Schools (GBAPS) board meeting to address an agenda item of concern to those who love liberty and wish to preserve the secular arrangements of our democratic republic: the district’s revision of its dress code. Dress and speech codes are not side issues. They’re not a trivial matter. Controlling people by limiting their manner of presentation of self and restricting their freedom of expression strikes at the heart of the open society.

The dress code as it stood included selective restrictions on messages on clothing and a conditional ban on head coverings, limiting, without rational justification, the freedom of speech, as well as the violating separation of church and state. At the end of the day, the board voted to preserve bans on speech in code and effectively preserve the ban on head coverings, with a religious exception, by deferring to the discretion of school administrators. The policy can be found here: “443.1: Student Dress.” The next day school administrators declared their unanimous support for existing policy in an email to parents.

In this blog, I share with readers my testimony (the full video and text). Fox News covered the meeting and included in their report a video clip of me calling out the District on the problem of policing student dress and expression (“Green Bay School Board alters policy on hats and hoodies in classrooms”). I want readers to have context. Moreover, the board allows speakers only five minutes for testimony in the open forum, so I will elaborate my argument here. I also want to make some observations about the arguments of other speakers and the discussion that ensued, as well as the decision that was reached.

The problem with the conditional ban on head coverings can be put simply: if some students are free to cover their heads in public school buildings on religious grounds, while others students are punished for covering theirs because they have no religious excuse, then administrators are privileging believers while discriminating against nonbelievers. This is a violating of the Establishment Clause of the First Amendment to the U.S. Constitution.

The board’s decision is not only troubling in its violence to the First Amendment. Language in the policy may be interpreted to permit females to cover their faces for religious reasons. 443.1 reads: “Clothing must not cover a student’s face to the extent the student is not identifiable (except clothing worn for religious or medical purposes)” (emphasis mine). Elsewhere it repeats the policy: “Headwear must allow the face and ears to be visible and not interfere with the line of sight to any student or staff (except clothing/headwear worn for religious or medical purposes)” (again, emphasis mine).

Obviously, the policy is focused on accommodating Muslims, adherents to a doctrine that views girls and women as sexual objects obliged to control the male gaze by hiding their female bodies. The policy thus simultaneously discriminates against those who do not subscribe to the Islamic faith, while allowing Muslims to attend school in extreme modesty dress, including burqas and niqabs. Why can Muslim students be non-identifiable but non-Muslim students must be identifiable?

The email sent to all parents states that “school administrators have determined that they will implement the new headwear policy by maintaining their schools’ current practices in regard to hats and hoods. These current practices reflect their schools’ core values, the individual needs of their schools, and their mission to engage students in learning.” We have to ask, is facilitating the oppression of girls by allowing their identity to be erased really consistent with the values of our public schools? Is hampering the ability to engage Muslim girls in learning by hiding their faces from teachers consistent with the educational goals of our public schools? Do administrators, teachers, and staff in the Green Bay public school system, as well as the school board, really care more about not offending the sensibilities of those who subscribe to oppressive religious beliefs than defending individual rights and personal liberty?

In its decision, the school board abdicated its responsibility to uphold the separation of church and state that lies at the heart of American democracy by granting administrators the authority to violate the religious liberty of their students. My son attends Green Bay public schools. Do we not care about his rights because he is not a member of a recognized minority group? No rational justification was provided for why (some) students should not be allowed to wear head coverings in the school building. Indeed, by exempting religious students from the ban on head coverings, the district has admitted that it has no real justification for banning head coverings. The school board failed to protect the right of individuals to express themselves in ways that do no violence to those around them.

* * *

My Testimony Before the Board

My testimony before the school board. Unfortunately, my argument did not prevail. The school board voted to allow administrators, teachers, and staff to discriminate against students on religious grounds.

I come to you today to argue against the district’s dress code. I have four arguments: two based on the First and Fourteenth Amendments to the US Constitution and related legislative and judicial actions; two others based on the problems of stereotyping and stigmatization. I won’t have time to get to them all, so I urge the board to read my longer statement. I am happy to speak with board members about these arguments in greater depth. In the time I have, I take up the question of head coverings, in particular hoodies. District policy states that head coverings are “not permitted in the school building during the school day” with an exception: “Students may wear head coverings for religious reasons.”

This policy is problematic from a constitutional standpoint. The Establishment Clause of the First Amendment obliges public institutions to remain neutral on questions of religion. If a freedom is curtailed or expanded, it must be for secular reasons and the restriction must equally apply and the freedom open to all. Accommodations must not privilege some students while limiting others. As I will show, there is no rational reason for restricting head gear, but rather an irrational one, and the religious accommodation indicts the policy. 

The Civil Rights Act of 1964 outlaws discrimination based on race, religion, and other categories. Brown v. Board of Education (1954) determined that the doctrine of “separate but equal” is inconsistent with constitutional principles. It is inherently unequal to separate, limit, or privilege students on the basis of race. Would the district ever consider instituting a policy that permitted white students access to head coverings, hoodies, for example, but forbade these to black students? Of course not. Such a policy would violate the spirit of civil rights because it treats individuals differently on the basis of race. Yet the district enforces a policy that treats people differently on the basis of religion. This is a pernicious double standard.

What is more, this double standard rests on implicit stereotypes, one indicating virtue, the other indicating disrepute. The assumption is that religious students who wear head coverings are not dangerous or violent or are not using head coverings to hide headphones or weapons or concealing their identity or that the head coverings are not distracting—all reasons given for why hoodies should be banned in school. If any of these reasons were legitimate, then religious head coverings should not be exempted, since all the possibilities identified apply in those cases, as well. Yet other students, in particular minority youth, especially males, are assumed likely to be using head covering for these illicit reasons. It sees them as unsafe.

Without determining on an individual basis whether students are using a head covering for illicit purposes, a ban with group-based exceptions means concrete individuals are treated as personifications of abstract categories about which, for some, bad intentions are given, while others’ motives are deemed good-intentioned. This is why, in May of this year, Students at Uplift Community High School in Chicago overturned a rule that banned hoodie on their campus. Students at Uplift argued that the ban fed into harmful misconceptions about hoodies being associated with criminal activities, misconceptions based on racial stereotypes. Individual freedom means individuals are treated as such, not judged on the basis of abstract groupings.

Finally, the policy could consider all the exemptions that would allow students with alopecia, cancer, disfigurements, and other stigmatizing problems that for them necessitate head coverings. Presumably, such accommodations are within the principal’s discretionary power. However, just as the policy implies head coverings are disreputable for certain classes of people, exceptions for non-religious reasons spotlights what affected students likely wishes to conceal.

I urge the district to retire this policy and allow students to dress and express themselves in the manner they and their parents see fit. If attire and grooming are found to meet the exceptions identified in the Tinker Standard established by the Supreme Court in 1965 (which I am happy to explain further), then this can be determined on a case-by-case basis, as it should be in a society of individuals who are to be treated as such before the law, not reduced to representatives of abstract impositions and subject to prior restraint.

It is not the place of the district to police student’s clothing and messaging, especially in a manner than grants privileges to some while discriminating against others. No student should enjoy preferential treatment on the basis of race, religion, nationality, or other categories identified in our laws, but should enjoy equal treatment before the law, which should move in the direction of expanding personal liberty, not limiting it.

* * *

What Followed My Testimony

The board asked no follow up questions of me. A citizen who followed me expressed the typical authoritarian claptrap about how hoodies are a reflection of kids these days and their lack of respect for their elders. It was “hike up your pants” cliche. A high school teacher (from West High School) followed him and began by noting the substance of Tinker standard—that it requires any prohibition on expression to show substantial disruption to the learning environment—as if it were evidence for the disruptive nature of hats and hoodies. He leaned on his “thirty years of experience” to insist that hats and hoodies undermine school climate and learning. He presented no other evidence. He claimed that what he is seeing in the classroom is that hats and hoodies allow some students to disengage from the learning process. One cannot tell whether the student wearing a hoodie is listening to music through earbuds. Moreover, hats with brims can be pulled down so that the teacher cannot make eye contact with the student.

Of course, the teacher was compelled by the obvious to stress that only some students use hats and hoodies to disengage. This qualification—which he used to feign reasonableness—speaks to a point I make later about whether it is proper to control some students on the account of other students. Moreover, is it hats and hoodies causing the disengagement in those cases?

He claimed that the problem of using hats and hoodies to disengage is becoming more prevalent, increasing year by year, the phenomenon starting around five years ago. This is an interesting observation, given the growing diversity of Brown Country has, over the last five years, reached the threshold of majority-minority area status. Mexican families have settled and their kids are now coming through the school system. Moreover, the African-American population has grow substantially just within the last few years. It seems there are race and ethnic anxieties underpinning the growing moral panic about hats and hoodies.

Putting this to one side for the moment, how is the ban on hats and hoodies addressing the problem of disengagement if an increasing number of students are using hats and hoodies to disengage? Shouldn’t officials attempt to understand the actual source of disengagement? The teachers claim that, because hats and hoodies are worn by people from all racial and ethnic groups, this is not a discriminatory policy, seems to give the same away. Not wanting to appear to discriminate, a general rule is passed justified by the assumption that all are potentially guilty of violating rules, which people don’t really believe. What they believe is that some students will violate the rules. Which students. Now we can bring back in the question of race and ethnic anxieties.

Later in the meeting, during the forum associated with the agenda item, another high school teacher (this one from East High School) appeared and rehearsed Cosby-esque rhetoric about respectability and career-readiness (had she been a white lady her comments would have been reactionary). She testified about how students routinely flout the dress code, dwelling on an anecdote about a kid who came to class every day, pulled his hoodie around his head, put his face on the desk, and slept the whole period. On one occasion he did not hear the bell at the end of class. From this case she drew the conclusion that the ban on hats and hoodies is necessary.

When asked by a board member why the District should keep a policy students so easily disregard, she imagined aloud how much worse the situation would be if students were allowed to wear hat and hoodies. Under further questioning, and in light of student testimony about the psychological aspects of head coverings (one spoke about anxiety, another about anger), she admitted the personal need to feel secure, but insisted that the classroom was not the place for it. “Students should go to student services for that,” she said. (I guess because that’s where students with emotional and psychological problems get their education.)

As various Board members spoke, one pointed to the district’s survey of administrators, staff, teachers, parents, and SROs (School Resource Officers, i.e. the police) on the matter and suggest we listen to them. After all, why have a survey if we aren’t going to heed the majority? What a stupid opinion crossed my minds. If we’re going to heed the majority opinion expressed in unscientific surveys, then why have the board take up the issue at all? Why have a board at all? Why not just rubber-stamp survey findings? Is that what democracy looks like? Tyranny of the majority?

Throughout all of this, I was hoping the board would ask me for clarification. I could have easily batted down each point. The ignorance of basic civil and human rights displayed by most everybody involved in the discussion, as well as responses to various surveys, was astounding—and distressing (this is why majoritarianism is a recipe for disaster). Seeing the personal freedom of persons the government forces to spend at least a third of their day (half of the time they are conscious) learning stuff the power elite believes will make them “career-ready” (i.e. docile bodies) treated in such a disrespectful and cavalier matter infuriated me. Is the popular desire to keep young people under authority’s thumb perverse sublimation of the memory pains of its own adolescence? Is this all about repressing humiliation by giving back? Did Sigmund Freud have a name for this odious defense mechanism?

Seeing how things were going to go, I left the board meeting. The outcome was predictable. But I have more to say about this.

* * *

The Principles of American and Human Freedom

At the start of the meeting, the audience was asked to rise with the officials and recite the Pledge of Alliance. “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” As an atheist, the “under God” part has always irked me (although it is interesting that it does not say “under gods”). That aside, the Pledge contains words we’re supposed to pay attention to. The flag represents the American Republic, which is founded upon core values of individual rights and liberties. Contrary to the multiculturalism that attempts to supersede it, the Pledge tells us that the nation is one nation. It doubles down here: this nation is indivisible. It demands equal treatment of individuals before the law—all are entitled to liberty and justice. Yet, after repeating the Pledge, board members and those who testified failed to connect the meaning of these words to my testimony. I guess the Pledge is just ceremonial. Like the Preamble to the Constitution. Nothing to consider here.

The United States Bill of Rights, ratified on December 15, 1791, lays the basis for ethical conduct with respect to individual liberty and rights. The First Amendment protects personal liberty in the expression of religious and other opinions. Courts have pushed the free speech rights down into every level of government. The Court has recognized that freedom of speech includes personal expression in art, music, and fashion. The First Amendment obligates the government to remain neutral on religious questions. Government can pass no law or policy respecting the establishment of religion. Supreme Court decisions have expanded the Establishment Clause to cover law and policy and incorporated this principle in every state and locality, including public schools. Freedom of (and necessarily freedom from) religion and freedom of speech and expression are landmarks in the progress of man. The Fourteenth Amendment clarifies that every person dwelling or traveling within the jurisdiction of the United States enjoys the protection of the Bill of Rights; the government cannot deny to any individual due process or equal protection under the law. Treating people differently for reasons of nationality, race, or religion is a harmful or unjust manner constitutes discrimination.

In light of this established body of law and the values they represent, the district’s dress code policy does violence to justice. It denies the agency of our young people—the people who will carry forward our democratic republic in our absence. What is the civics lesson here? The policy flies in the face of the Supreme Court ruling that the First Amendment protects student speech. Regardless of political viewpoint, students are allowed to speak, write, and otherwise express thoughts without fear of censorship on the basis of the content of their speech. This precedent is known as the Tinker Standard, established in a 1965 Supreme Court ruling. At issue was the wearing of black armbands by three siblings (the Tinkers) to signal opposition to the Vietnam War.

In the limited time the board gives speakers, I could only mention the standard (hoping I would be asked for clarification). In that ruling, the court held: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” The Supreme Court allowed for two exceptions, both of which require officials to provide sufficient evidence to show that the expression in question could result in “substantial disruption of the school environment” or represent “an invasion of the rights of others.” Obviously, neither exception applied to the Tinkers’ expression. The high school teacher who thought he was rebutting my testimony offered no evidence that hats or hoodies triggered the exceptions identified in the Tinker Standard. And, as we will see, his failure to object to a religious exception negates his argument that such a ban was necessary to the learning environment.

With regards to free expression, policy 443.1 identifies the following as forbidden: “Any clothing, jewelry or personal items identifying an antisocial association or organization referred to in Board policy.” The board, an extension of the government, is censoring speech based on content. The policy bans the following: “Any clothing, jewelry or personal items that use or depict hate speech or targeting groups based on sex; age; race; religion; color; national origin; ancestry; creed; pregnancy; marital status; parental status; homelessness; sexual orientation; gender identity; gender expression; gender non-conformity; physical, mental, emotional or learning disability/handicap; or any other legally-protected status or classification.” The policy also censors speech based on content: “Any clothing, jewelry or personal items that contain pictures and/or writing referring to alcohol, tobacco products, nicotine, sexual references, nudity, profanity, obscenity, unlawful use of weapons, and/or controlled or illegal drugs.”

The district’s dress code is the result of a time machine thrown into reverse. When I was in high school in the 1970s, we wore shifts with messages of all sorts, net shirts, halter and tube tops, short-shorts, mini-skirts, bandanas, pot leaf belt buckles that doubled as paraphernalia, hats—whatever. The district’s policy by comparison is regressive. For example, the policy prohibiting students from wearing clothing with drug references. Based on experience with the district, I know anti-drug messages conveyed by students and teachers are tolerated, even encouraged. D.A.R.E. (Drug Abuse Resistance Network) is a fixture in the district. Why aren’t pro-drug messages allowed? The Supreme Court has found that the government cannot discriminate against viewpoint advocacy. With very few exceptions (obscenity is an example), the government’s ability to restrict speech on the basis of content is sharply limited. To allow censorship is to tolerate thought control by the state and its agents.

We allow free thought and expression in the United States not only because it is a fundamental right in a free society, but also because it is necessary for robust discourse about the issues that concern citizens. Just as the Tinker siblings had a constitutional right to express opposition to the Vietnam War, students have a constitutional right to express opposition to the drug war. The result of current drug prohibition policy is the incarceration of tens of thousands of persons, ruining lives and resulting in family separation and community disorganization. In Guiles v. Marineau (2006), the Court affirmed the right of a student to wear a shirt mocking President George W. Bush that included references to alcohol and drug use. The Court found that censoring the shirt diluted the student’s message and the message did not satisfy Tinker’s “substantial disruption test.”

While I recognize that there are time and place restrictions on speech, I also recognize the obvious, namely that speech on clothing is not disruptive in the same way verbal speech can be. Those who do not wish to receive messages on clothing may disregard them. If a message on a t-shirt is offensive, the least restrictive solution is to not look at it. Therefore, even if speech is restricted on the basis of a significant governmental interest, such as pursuit of a specific goal disrupted by verbal speech, those restricting the speech must allow for alternative channels for communicating the information. It would seem messages on clothing (or expressed in jewelry) is the least problematic alternative for such communications.

Furthermore, the “substantial disruption” test must be applied on a case-by-case basis. This is the opposite of blanket restrictions that require exceptions, a practice that gets the state’s burden wrong. Prior restraint must show that discipline after-the-fact is insufficient to remedy the problem created by said speech. It is unclear what problem pro-drug messages cause, let alone that case-based discipline would be insufficient to remedy any problem that should arise. The same is true for hats and hoodies. Yet the West High School teacher I noted earlier speaks for many when he expresses the desire to control the many for the sake of a few.

As for disruption, even here administrative action may run afoul of the spirit of free speech, since political statements are intended to draw attention to an issue. The right to speak freely is at the same time the right to freely receive speech, to have access to information and opinion. In the case of political messaging, others may become members of the audience if they wish. Expressions aren’t disallowed because an administrator disagrees with their sentiments. Indeed, the measure of the free speech right is the extent to which it protects disagreeable speech. It is not the business of the government to determine what groups or sentiments are “antisocial” in order to censor content. Imagine an organization that distributes with messages warning the public of the peril of sharia—Islamic doctrine that judges women inferior and encourages persecution of homosexuals—being deemed by the school board “anti-social,” specifically “Islamophobic,” and censors the messages on this basis. It’s not hard to imagine this if you try. The policy mentions “hate speech” and “targeting groups” in conjunction with “religion” and “creed.” Protecting administration-sanctioned speech is easy. It hardly needs protection. It’s offensive speech that requires protection. Yet the school board seeks to sanitize student clothing.

As a concrete example, just this year, Fayetteville High School (Arkansas) students who showed up at school in clothing bearing the Confederate flag were sent home. The school principal told the media, “We’re not trying to trample on their First Amendment right. We’re just trying to have a safe and orderly school environment.” “Safe and orderly” are typical excuses for limiting constitutional freedoms. In May of last years, a student in Montana was suspended for wearing a Confederate flag sweatshirt. The student, Mitchell Ballas of Missoula, got it: “The school is in the wrong for saying they can dictate me wearing this sweatshirt. They’re saying it’s offending kids and it’s derogatory and all that, but it’s not. It’s my First Amendment right.” Even if it offensive and derogatory, it is indeed Ballas’ First Amendment right. Students are even demanding the suppression of their own speech. In my adopted state of Wisconsin, Tomah High School students joined with administrators, staff, and teachers to call for the prohibition of Confederate flag items after a student wore clothing featuring the flag of Dixie.

Confederate flag t-shirt

Even when the Supreme Court has tolerated speech restriction, leading lights on the court have dissented in a manner consistent with constitutional principle. In Morse v. Frederick (2007), a ruling that upheld the disciplining of a student, Joseph Frederick, who was wearing a T-shirt that said “Bong Hits 4 Jesus” at a school sponsored event, Justice John Paul Stevens, in a dissent joined by Justice Souter and Justice Ginsburg, argued that “the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.” Stevens emphasized that “carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.” (Note also that the t-shirt could be said to disparage members of a religious group.)

The American Civil Liberties Union (for the record, I sit on the Northeast Wisconsin Board of the ACLU) participated in this case on the side of Frederick, as did the Center for Individual Rights and the National Coalition Against Censorship. Students for Sensible Drug Policy posted concern that banning drug-related speech would—if the principle of viewpoint neutrality was properly observed—undermine their ability to form chapters in public schools. Even conservative groups such as the American Center for Law and Justice and the Rutherford Institute worried that religious opinions could be censored if Frederick’s rights were trammeled.

* * *

Religious Liberty and the Establishment Clause

As I noted in my testimony before the board, district policy states that head coverings are not permitted in the school building during the school day with some exceptions, one for them concerns head coverings worn for religious reasons. However the Establishment Clause of the First Amendment obliges public institutions to remain neutral on questions of religion. If a freedom is curtailed or expanded, it must be for secular reasons (it cannot be for religious reasons, since then the government is no longer neutral) and the restriction must equally apply or the corresponding freedom must be open to all. Put another way, accommodations must not privilege some students while limiting the freedom of others. This should be obvious in light of the logic of civil rights in our nation’s long struggle to achieve equality before the law.

It is contrary to religious liberty to allow believers to engage in activities that authorities have determined inimical to safety and learning. The free exercise of religion is not absolute. It is limited by the Establishment Clause, as well as rational restrictions. First, as noted, the school cannot endorse a religion by privileging its adherents through preferential treatment. Second, if an action is harmful to others, it is properly restricted for the sake of safety. Are Sikh boys allowed to wear the kirpan—a ceremonial dagger—at school? All baptized male Sikhs are expected to carry one. Daggers are dangerous, threatening, and distracting. Head coverings aren’t daggers. But if they are claimed to be dangerous, threatening, and distracting (which school administrators have judged them to be), then there should be no religious exception for them since a purportedly rational reason exists for forbidding them. By allowing Muslims to don head coverings, the district is either saying that Muslims are allowed to engage in a practice that is dangerous, threatening, and distracting or that head coverings are not actually dangerous, threatening, or distracting. If the first claim is true, then no one should be allowed to cover their heads. All students are entitled to learn in a safe and distraction-free environment. If the second is true, then everybody should be free to choose where they will cover their heads, since clearly headgear is not the problem it is purported to be.

A kirpan, worn by baptized male Sikhs

I have made the kirpan analogy many times since the school board meeting not conceiving that it may in fact be allowed in some school districts. So I checked to see and was shocked to discover that, in October of 2014, administrators at a Washington state school district decided to let a Sikh boy carry a kirpan on school property. The school district in announcing the decision stated that they were merely confirming standard practice: Sikhs had always carried kirpan’s at school. Robby Soave wondered aloud in article in Reason magazine: “If Sikh Kids Can Bring Knives to School, Why Can’t Everyone Else?” Soave writes, “I find it irksome, however, that school administrators are willing to recognize a faith-based exception to zero tolerance weapons policies while vigorously enforcing them in every other respect, even when other students have equally valid reasons to carry knives.” He cites the case of Atiya Haynes, a 17-year-old Detroit girl who was expelled from school after her principal, in a random search of students’ personal property, discovered a pocketknife (a gift from her grandfather). Soave asks, “Do the Atiyas of the world really deserve fewer freedoms than Sikh students?” Not if the law is correctly followed.

The Civil Rights Act of 1964 outlaws discrimination based on race, religion, and other categories. Brown v. Board of Education (1954) determined that the doctrine of “separate but equal” is inconsistent with constitutional principles. It is inherently unequal to separate, limit, or privilege students on the basis of race. That the district would never consider instituting a policy that permits white students access to head coverings, hoodies but forbids these to black students but enforce a policy that treats people differently on the basis of religion tells us how deep the Islamophila runs. It will not do to say that in the one case race it at issue but in the other it is religion. Government is not allowed to discriminate on the basis of either. 

Somali students with hijab, district allowed head coverings presumed to be immune from all of the problems it associates with hoodies

This is a pernicious double standard. Religious liberty means that law and policy cannot grant differential access to freedoms and resources on the basis of religion. Prohibiting my son, who is a secular humanist, from wearing a head covering on the grounds that he does not have a religious reason to do so violates his religious liberty. The same can be said if, when Muslims are permitted time to pray, my son were denied the same amount of time to contemplate his “sincerely-held moral or ethical beliefs,” which the district recognizes as the same status as religion. Or if my son were denied access to publicly-funded menu based on religiously-restricted food items. All Americans have a right to eat halal and kosher foods. The government cannot restrict some individuals from engaging in a practice it allows others to freely engage in for religious reasons.

This double standard rests on implicit stereotypes, one indicating virtue, the other indicating disrepute. The district’s policy states: “Student dress or grooming should not affect the health or safety of students or disrupt the learning process within the classroom or school.” Some districts around the country even consult with the police, who recommend schools pay attention to what youth in high crime areas wear—areas that are disproportionately poor and African American and Latino. As a school board member confided to a person close to me, staff are terrified of their own students. The assumption is that religious students who wear head coverings are not dangerous or violent or are not using head coverings to hide headphones or weapons or concealing their identity or that the head coverings are not distracting—all reasons given for why hoodies should be banned in school. Other students, in particular minority youth, especially males, are assumed likely to be using head covering for these illicit reasons.

Those who spoke at the school board meeting, including members of the board, even after I exposed the double standard, kept dwelling on the reasons why hoodies should be banned. Even after I explained that if any of these reasons were legitimate, then religious head coverings should not be exempted, since all the possibilities identified apply in those cases, as well. Otherwise, why are hijab-wearing Muslim girls presumed to be immune from all the temptations undermining Christian boys who wear hoodies? By granting a religious exemption for head coverings the district has admitted that the reasons for disallowing head coverings are not of pressing concern. Otherwise, as I noted earlier, it would be reckless to put students at risk by allowing some students to engage in a problematic practice.

We have heard the objections: “They have earbuds under those hoodies!” But earbuds are worn beneath the hijab, too. “They partially conceal their identity!” True also of the hijab. And so on. If the reasons for banning the hoodie were really legitimate, and of such pressing concern, then no exceptions would be allowed, even religious ones. Again, no school has to accommodate all religious observances, especially if they interfere with the educational process and represent a threat to school safety. If a public institution cannot decide who gets head coverings on the basis of race, then how can it decide who gets to wear head coverings on the basis of religion? The policy is discriminatory.

As I said in my testimony, without determining on an individual basis whether students are using a head covering for illicit purposes, a ban with exceptions means concrete individuals are treated as personifications of abstract groups about which, for some, bad intentions are assumed, while others’ motives deemed good intentioned. Individual freedom means individuals are treated as such, not judged on the basis of abstract groupings. I am concerned that school board members did not understand this part of my argument. I grant that it is, especially in the era of group rights and identity policies, hard to grasp the meaning of liberty and justice for all. We mean it at the concrete individual level. Individuals are actually-existing entities. Race and religion are imagined communities. They are observer-relative things for which there is no necessary organic association. An individual is a member of a race or a religion in a way very different that he is a member of the species. Race and religion are social constructs. Religion is an ideological system. You cannot reduce a concrete person to a social construct or an ideological system. Indeed, the attempt to do this results in known repressions. One must ask oneself, What is racism? Are its categories the basis of organizing rights and privileges? Or have we abandoned the ideal of individual equality before the law?

* * *

The School Board Fails to Uphold American Values

When I was a young teacher, I was frustrated by some students using their laptops for purposes other than taking notes. I made a rule that forbade all students from using laptops in my classes. Most students where doing what they should be doing on their laptops, taking notes and checking claims I was making in class. Others were playing games, chatting on social media, and so on. But rather than disciplining only those who were deviating from classroom expectations, I disciplined students irrespective of their actual behavior. This practice was wrong and, as soon as I realized it, I retired the rule.

In announcing the reasoning for approving the policy, the opinion of so-called School Resource Officers was cited. One hundred percent of them oppose hats and hoodies in school buildings. SROs are police officers. Let’s call them that. They are police officers in our schools. Aas a criminologist, I might ask what evidence the police have that could lead anybody to think that hats and hoodies are a threat to school safety? The only thing I can figure out is the pairing of hoodies with the “thug.” However, as a civil libertarian, I have ask how people who are not wearing hoodies in order to do any of the bad things people claim people with hoodies do should have their freedom restricted on account of a handful of people who may be involved in illicit activities? How is it fair to control the many for the actions of the few? Justice means disciplining those who break the rules, not assuming everybody will break the rules and then denying those who follow the rules the liberty due them.

Popular opinion should not bear on this matter. It doesn’t matter whether a majority of teachers and staff want this. What matters is showing that head coverings represent a threat so great that it necessitates banning them. And it must apply the ban across the board. The fear of hoodies is rooted in a cognitive stereotype about the threat of minority youth and the class enemy. There is a desire to cast upon others disrepute and to demand they prove themselves innocent and safe. I am not saying administrators, teachers, staff, and parents in Green Bay are overtly classist and racist. I am saying, however, that they need to take some time to critically reflect on why they feel this way. The Green Bay school board should have done the right thing and retired this discriminatory rule.

In the end, the school board voted to allow principals to decide whether our students may wear hats and hoodies inside schools. Do we let police officers decide what is illegal or is that what elected officials are for? Elected officials determine what is illegal and police officers enforce the law. So why would we let principals, teachers, and staff determine what clothes students wear? Shouldn’t that be the responsibility of the school board, an elected body of community members whose job it is to determine such matters?

Finally, I noted the common argument that we need to get hats and hoodies away from students in order to build upright proletarians for the workforce. Do teachers and parents really believe that the real world is a world devoid of head coverings? Do they really think they are preparing students to interact with real people in the adult world banning hats and hoodies at school? What this talk really represents is a twin fetish for authority and respectability with prejudicial class, race, and ethnic underpinnings. It reveals a politics that sees young people not as their own agents but as objects to be molded according to a disciplinarian ethic and about which suspicions are warranted. It’s unfair, and I urge others to take up this cause. They are revisiting the matter in June of 2020. Show up and voice your concern.

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Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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