Opinion

School Threatens to Force Girls To Wear ‘Modesty Ponchos’ at Prom, and They Can Legally Do it

Twitter is abuzz today with tales of prom attire gone wrong. First, this girl posted a pic of her choice to wear a traditional Chinese dress to her prom:

Which inspired this guy to fire up his Offense-O-Meter:

The cries of “cultural appropriation” almost drowned out the girl’s explanation that she chose the dress because it was “unique and bold” and because it gave her, “a sense of appreciation and admiration for other cultures and their beauty.” Feel free to carry on with the “appropriation v. appreciation” debate.

In other attire-shaming prom news, a Catholic high school in Dearborn, Michigan displayed this deterrent for any girl tempted to show a little too much skin on prom night:

Twitter wasted no time on the weigh-in:

I know I’m going to lose my Feminist scout badge for saying this, but I really hate seeing teenage girls wearing super-sexy prom dresses. I’m all for women recognizing the power of their sexuality, and for young girls to be the decision-makers for their own bodies. I also think that schools banning girls from wearing tank tops or flip-flops on the grounds that “the boys will be distracted” is some next-level bullshit. But when I see teens all dolled up in painted-on dresses with belly-button-depth necklines I always feel sad. The young women are beautiful and grotesque all at once, kind of like a decade-later reunion episode of Toddlers & Tiaras. The attitude they convey is rarely one of empowerment; it instead smacks of a kind of stripper-esque insecurity, saying, “my only value is my body, and I must display it or risk being unappreciated by my peers.”

That said, this school, with its idiotic Modesty Ponchos, makes me ill. Divine Child High School probably had a legal right to saddle its girls with whatever 1950s-stereotype it wishes, but that still doesn’t make it a good idea.

First [Amendment] things first. Legally, a person’s choice of clothing is protected under that person’s right to free expression. Remember, though, that under the Constitution, First Amendment rights are only guaranteed by government – not by private individuals, business, or institutions. That means that the public school/private school distinction is important here. A private school can enforce a dress code, mandate uniforms, or require clown suits if it wants.

Public schools are another matter entirely. Public schools are the government. They do have to uphold a student’s First Amendment right to free expression. And they don’t get to make judgments about that expression, either. Difficult as it may be to accept, teenagers are free to express themselves, even if what they’re expressing is, “I’m tacky.”

This isn’t a new issue, either. SCOTUS ruled back in 1969 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That case didn’t deal with how much cleavage girls could show at prom, but rather, the legality of banning students from wearing black armbands in protest of the Vietnam war. So yeah, we’re kind of a long way from home.

Still, that track– Tinker v. Des Moines — is on the First Amendment’s Greatest Hits, and is often cited by folks on both sides of the dress-code debate. Because the Tinker Court mentioned that the armbands didn’t, “substantially interfere with the work of the school or impinge upon the rights of other students,” wardrobe police the world over have seized on that language. As a result, schools are quick to ban clothing that “distracts” other students, like short-shorts, or spaghetti-strapped tops. Of course, if we’re talking about prom attire, this whole “distraction” thing is sort of moot, because teens aren’t exactly solving quadratic equations on the dance floor.

So far, we’ve been talking solely about federal law. There’s also state law to consider. The Constitution provides a floor, not a ceiling, for individual liberties. Many states have adopted their own laws that guarantee their citizens even broader protection against government censorship; in those states, any dress code imposed by a public school must comply with state requirements.

The real problem with school dress codes, however, isn’t that they violate that First Amendment – it’s that they discriminate. All public schools and all non-religious private schools that receive direct federal funds do have to follow federal anti-discrimination laws. That means no discrimination based on sex, race, color, national origin, or disability. And let’s face it – dress codes are for girls, not for boys. Boys are not asked to submit photos of their suits to school administrators (yes, this is actually a thing); boys are not pulled from class for “distracting” classmates by showing collarbones.

Sure, many of these schools attempt to neutralize their policies by specifying that the requirements apply to only “dress-wearing” students or by arguing that the code applies to all students equally. But at its core, school-mandated modesty, however well-intentioned, is one of those things that has an inherent propensity to be discriminatory.

Law & Crime spoke with Emma Roth, legal fellow with the ACLU Women’s Rights Project, who explained:

Schools that disproportionately target female students with requirements that they dress “modestly” may be in violation of Title IX, a federal law that prohibits sex discrimination in education, and the Equal Protection Clause of the Constitution. These laws prohibit schools from treating male and female students differently on the basis of sex stereotypes. A school may specify which types of attire are allowed at prom in gender-neutral terms, but cannot distinguish between male and female students or only require female students to wear ‘modesty ponchos’ if they violate the dress code.

Divine Child High School, of course, doesn’t have to worry about all this pesky discrimination stuff, because religious schools are exempt from following federal anti-discrimination laws (yes, schools are different from bakeries).

On Tuesday, the Archdiocese of Detroit made sure to get in on the spin on this whole Modesty Poncho debate, releasing a statement that said:

Our intention with displaying the poncho was never to make students feel uncomfortable, but to remind all students and parents of our formal Prom dress policy, which has not changed for several years.  To be clear: The poncho will not be passed out at Prom. It was on display to proactively remind students of our dress code policies and eliminate any confusion prior to this special event.

For those outside the parochial-school arena who might be similarly tempted to “proactively remind students” how they should act, it’s kind of important to remember that teens are “people” and they have these pesky little things called “rights.”

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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