Hey kids, what are you going to wear to school today?
A miniskirt? How short? "Sagging" pants: Is that kosher? What about a do-rag? Fishnet tights? Or hoodies, tattoos, sweat pants, frayed jeans, an Afro puff or, if you're a boy, long locks? How about a breast-cancer-awareness bracelet featuring the word "boobies"?
All of these are real examples of fashion choices that schools across the country have recently attempted to restrict. The wrong choice could get you kicked out of class or suspended; and if you want to fight for your right to a hoodie or a short skirt, you and your parents may have to file suit and head for court.
Your defense would probably be the First Amendment, and the first hurdle would be proving that your desired dress is "expressive." But courts often decline to find that "mere style" conveys a message, an odd conclusion given that school dress codes seem predicated on prohibiting styles precisely because they express something: disrespect, sexuality, rebellion or even fashionableness.
Symbols or words on clothes are most likely to clear the speech hurdle; they will then be evaluated against the "disruption" standard articulated by the Supreme Court in the watershed case Tinker v. Des Moines Independent Community School District. Tinker involved students wearing black armbands to protest the war in Vietnam. Borrowing from civil-rights cases, the court decided for the protesters: Authorities had to show that speech materially and substantially interfered with appropriate school discipline in order to ban student speech.
Later lawsuits have had mixed results. In a flurry of cases involving representations of the Confederate flag, the courts leaned toward upholding school bans. Students promoting the Straight Alliance (and who donned shirts that proclaimed "Be Happy Not Gay") were generally more successful, although a few judges thought the message could disrupt gay students' learning. And just last month, students' "I (heart) boobies" bracelets were validated by the U.S. 3rd Circuit Court of Appeals: The school in question could not ban an expression that was not "plainly lewd."
School dress codes also raise questions of equality. Gender-specific guidelines for hair, jewelry and cosmetics are being tested, especially by transgender students. Bans on saggy pants or Afro puffs are applied to all students but can be seen as racially biased. Outlawing sweat pants or frayed garments might well have a disproportionate effect, depending on a family's economic status, although this argument would be more persuasive to a school board making policy than to a court applying constitutional doctrine.
At their heart, school dress codes that go well beyond safety concerns and basic decency rest on the unequal relationships between adults and youth. School officials like to tout the rules as preparation for employment, but those standards are hard to pin down: Billionaire Mark Zuckerberg would be suspended at most schools with detailed dress codes.
The Supreme Court famously opined in 1925 that the state does not have the power to "standardize" its children, but too-detailed school dress codes seek to accomplish just that.
It's time for school districts to worry less about student attire. Dress codes may seek to foster an educational environment, but their very existence can divert attention from substantive learning by fetishizing the number of inches between the hem of a skirt and the top of a knee.
There are some common-sense provisions. Gang color restrictions may make kids at some schools demonstrably safer, and general decency rules should apply as they do outside schools. But policing poofy hairdos or the message on a bracelet or the fabric of a child's pants isn't serving the interests of students or society. Let's exert our energies toward preparing our kids to become the independent thinkers necessary for a democracy rather than the subjects of seemingly arbitrary rules.
Ruthann Robson is a law professor at New York's City University School of Law and the author of "Dressing Constitutionally." She wrote this for the Los Angeles Times.