Dress Codes
I was the Dean of Students of a local high school for eight years. One of my primary, and least favorite jobs, was enforcing the student “dress code”. It wasn’t the best duty for a career track coach. I was used to seeing kids in track apparel: from speed suits (one-piece form-fitting spandex) to “short-shorts” (distance running 3” spilt shorts) to sports bras (support garment for women designed to be worn as “outer wear”). Normal practices and meets involved seeing boys and girls in what might in other circumstances be called, “various stages of undress”.
The Rules
But what worked on the track didn’t necessarily fit in the classroom. At the time, the dress code was specific.
- students must wear shoes
- underwear type shirts cannot be worn as outerwear
- pants must be worn at waist level
- see-through clothing not allowed
- shoulder strapped clothing must be at least 4-fingers in width
- tops revealing the midriff are not allowed
- boxer shorts are not outerwear
- skirts, shorts and dresses must reach mid-thigh
- hair styles neat and clean and must not provide a hazardous condition
- holes in clothing cannot reveal underwear or inappropriate body parts
- no hats, sunglasses, leather trench coats, dog collars, spike chains,
- no dew rags, scarves, beanies, stocking caps, sweatshirt hoods or bandannas.
- jewelry that can be used as a weapon not allowed
- tattoos or other body decorations considered offensive must be covered.
- Watkins Memorial High School Student Dress Code – 2013-14
Tinker v Des Moines
And all of that was based on a United States Supreme Court case, Tinker v Des Moines. The 1969 Vietnam War era case balanced the Free Speech rights of students against the reasonable need of public schools to provide them an education. The critical phrase, “Disruption of the educational process”, became the basis for public school dress codes throughout the country. If the school could show that a form of dress, say, wearing leather trench coats, was disruptive of the educational process (because of the possible dangers hidden by the coat, made famous by the Columbine High School shootings), then the school could ban them.
Disruption, of course, is in the eye of the beholder. Like the 1960’s Supreme Court standard for pornography, it was a kind of “I know it when I see it” decision. And disruption evolved over time. A cross-dressing boy or girl would never have gotten past the front office in the 1980’s, but by the 2000’s were just a part of the “student scene”. And the era when boxer shorts were considered “outerwear” was mercifully short, maybe just a single school year (1988-89).
But schools have had Court-backed wide authority to determine what students are allowed to wear and what they aren’t. So much so, that a decade ago, some public schools determined to implement school uniforms. While that issue hasn’t risen to the Supreme Court level yet, it’s an open question at best whether schools really have that much authority. Uniforms seem to be the ultimate suppression of students “free speech” rights under Tinker.
Arguing for Masks
So if a school can ban dew rags and sunglasses, dog collars and hats, can a school implement a rule requiring face masks, under a dress code regulation?
As a former Dean of Students, here’s the argument I would make to allow it. Students are concerned about the spread of the Delta-Variant of Covid-19. That concern is real and provable, and goes beyond their own personal health. Many students have family members, from siblings to grandparents, who are more vulnerable to the ravages of the disease. And since the school has not taken the position that students are required to be vaccinated (that will happen in some schools, particularly at the college level, once the FDA accepts the vaccine for “regular use”) students have no way of knowing which students are vaccinated or not.
Students are required to sit in classrooms, placed side-by-side in student desks with as many as thirty in a room. While that situation increases the risk of viral spread, it has been demonstrated that proper wearing of face masks significantly reduces the risk.
So all students wearing masks would make the entire environment safer for all students. A student not wearing a mask in that environment, could be seen as “disrupting the educational process” per Tinker v Des Moines. Just like students are required to wear pants, and tops (with at least a 4-finger shoulder strap) then they can be required to wear masks as well. It’s not just about modesty or commonality, it’s about preserving the health of all.
Authority
Schools have this authority independent of the state governors. The only control that some of those governors can implement over schools (depending on the state) is to restrict funding. And while funding is important, it’s not an absolute authority. After all, it’s only money.
So schools could implement a mask mandate, as many of the more urban school districts have. And when the case goes to Court, they may well be able to defend their authority to do it. A real fear of contracting Covid is truly disruptive of the educational process.
