Dear Legal Mailbag:

With my able assistance, my school district substantially revised its dress code policy this summer. The revision was overdue in light of the spotlight placed on such policies and the way that they have targeted how female students dress (which our old policy definitely did — it was completely sexist). The new policy that I worked on allows students to wear what is comfortable for their bodies and their gender identities. It states that a student’s dress must cause a “significant disruption” of class operations in order to warrant any action. Basically, if a student has shoes on, private parts covered, and no inappropriate images visible, he or she is in compliance with the new dress code.

I write because a few of the male teachers in my building have complained to me that they feel sexually harassed by revealing student clothing, and by my refusal to do anything about it. When pressed, one teacher told me that he is now afraid even to look at students, for fear of being accused of doing something inappropriate. To my surprise, he even started to cry, stating that he is not able to sleep at night. He said that he is afraid of losing his job if a student makes an allegation of wrongdoing when he’s just trying to do his job by monitoring his classes. His union rep even suggested that the teacher invoke the district’s sexual harassment protocol against ME because I have created a “hostile work environment” by allowing belly shirts, leggings, and short skirts.

I have just been trying to be fair to students who have been oppressed by an antiquated dress code. Please tell me that these teachers do not have a valid claim and should just chill out.

Dressed to Distress

Dear Distressed:

Good for you! Your efforts to implement a new dress code should have a positive impact on the school environment by making students feel welcome in school.

Dress codes are one way in which school officials regulate the school environment to promote learning. When the courts consider challenges to school rules, the courts will generally defer to the expertise of school officials and uphold the rule if the rule (and its application) conforms to the following:

• The rule must reasonably relate to a legitimate educational goal.
• The rule must be clear and understandable, and it must not leave too much discretion to school officials.
• The rule must not violate constitutional protections.
• The rule must not limit rights students have under statute.
• The rule must be enforced as written. If flexibility is needed, that should be spelled out in the rule.

When considering a dress code, we must ask whether its provisions relate to a legitimate educational interest. Absent special circumstances (such as concern over gang colors, for example), the two typical concerns with dress codes are safety and avoidance of distraction, which, of course, both relate to legitimate educational interests. The provision in your dress code prohibiting student dress that causes “significant disruption” certainly relates to a legitimate educational interest.

That said, the teachers’ expressed concerns may be cause for reflection. Legal Mailbag notes your description as simply requiring that “private parts be covered,” and that standard may be too low a bar for determining whether clothing is provocative and, as such, distracting and disruptive in violation of the revised dress code. On the other hand, these teachers may simply be overreacting to changing mores of teen dress, which other students do not find distracting at all. Legal Mailbag does not judge here, but rather suggests that a collaborative discussion of the expressed concerns may be helpful.

In any event, the concerned male teachers would not have a valid sexual harassment complaint in this situation. Sexual harassment for this purpose would be defined as “unwelcome conduct of a sexual nature that has the purpose or effect of creating a hostile, offensive or intimidating work environment.” Here, you have simply implemented a dress code, which is not “conduct of a sexual nature.” Whether the dress code as written and implemented should be revised is a different question on which further conversation may be warranted.

Originally appeared in the CAS Weekly Newsletter.