Graduation and prom dress standards in some schools raise constitutional free speech concerns

BOISE, Idaho—The American Civil Liberties Union (ACLU) of Idaho today released new resources for Idaho public school students and sent a letter to public school district superintendents statewide to alert and remind them to review all school dress policies to ensure compliance with constitutional standards. The ACLU of Idaho was recently alerted to discriminatory dress code standards for high school graduation that, for example, require girls to wear dresses and boys to wear pants.

“These are the kinds of things that you look at and just shake your head,” said Richard Eppink, ACLU of Idaho legal director. “Cassia County School District, for instance, is a district that’s been trying to convince us for the entire past school year that its people don’t discriminate, and yet here it is, in black and white. It is 2015 here in Idaho, but sometimes you wouldn’t know it.” Among the school districts where the ACLU of Idaho has identified discriminatory dress standards is the Cassia County School District, where girls are instructed to wear a “white or pastel dress or white or pastel blouse and skirt” to graduation; boys are instructed to wear pants, but cannot wear sandals, though girls can.

The ACLU of Idaho has identified similar dress code standards for other school-sponsored activities in other districts. The letter sent today to all school district is a proactive measure to avoid any last-minute problems schools may face as they participate in traditional end-of-year school activities, including prom and yearbook photos. The letter asks school districts that find any discriminatory dress standards to take two immediate steps: • First, announce to all school officials and students that any dress standard that draws a distinction between male and female attire will not be enforced this year. • Second, initiate a process to update all dress standards in place in your district so that they protect students’ constitutional rights and comply with current law prohibiting this kind of discrimination.

Across the country, the ACLU has been called upon in several cases to intervene and help resolve gender stereotyping policies that prescribe gendered clothing for male and female students. In Idaho, courts as far back as the 1970s have struck down school dress and grooming standards that set out different standard requirements for girls and boys. A legal memo from the ACLU of Idaho, accompanying its letter to all Idaho public school district superintendents, notes that gender stereotyping dress standards can violate the U.S. and Idaho constitutions, federal laws including Title IX, and the Idaho Human Rights Act. Requiring boys and girls to dress differently or according to government-imposed gender norms is unlawful gender discrimination under Title IX of the Education Amendments of 1972. The First and Fourteenth Amendments to the U.S. and State Constitution also prohibit this type of discrimination.

“Schools are a place for learning. What can be more important than ensuring that policies in place don’t punish students for exercising their rights,” said Leo Morales, Acting Executive Director for the ACLU of Idaho. “School activities such as graduation or prom or yearbook photos are tremendously meaningful life events for most students; it would be tragic for a student to be denied the right to express themselves and instead be forced to fit into an uncomforting gender stereotype.”
The ACLU of Idaho will be actively monitoring this prom and graduation season for students and parent complaints.