Ruthann Robson: "Dressing Constitutionally"

MR. STEVE ROBERTS

11:06:57
Thanks so much for joining us. I'm Steve Roberts sitting in today for Diane Rehm. She's having a voice treatment then going on vacation and will be back in this chair in mid-September. Most of us probably didn't think about the Constitution when we got dressed this morning, but author Ruthann Robson says the law and our personal appearance collide more often than we can imagine.

MR. STEVE ROBERTS

11:07:16
She's got a new book out, it's called "Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes." Ruthann Robson is a professor of law at the City University of New York and she was explaining to me they have a strong focus on public interest law at their school and she joins me in the studio. It's delightful to have you here, Ruthann Robson, welcome.

MS. RUTHANN ROBSON

11:07:42
Thank you. I'm a great fan of the show so I'm excited to be here.

ROBERTS

11:07:46
We're delighted to have you. And we're delighted to have you, our listeners. 1-800-433-8850, as always, give us a call. You can email us at drshow@wamu.org, through Twitter, Facebook. We are open to your calls and your comments and we're particularly interested this morning in your own experiences dealing with clothing and dress and grooming habits and how they all relate to this fascinating subject that Ruthann Robson has written about.

ROBERTS

11:08:20
And my first question is really a simple one. I mean, what got you interested? You're a law professor. Why are you writing about clothes?

ROBSON

11:08:29
Well, I was starting to write about the Constitution. I teach constitutional law at CUNY and was writing about sexuality and democracy, which I've written about before. And I kept finding cases about clothes, about hair, about clothes, about shoes, about different kinds of grooming. ,And then I started to look into it more deeply and decided that I was going to refocus my book on clothes, which took some people by surprise, including my editor at Cambridge University.

ROBSON

11:09:01
But he was very indulgent and I thank him now, John Berger, and it really just became fascinating in terms of the history, in terms of the things that we think about. Like, we'd all heard things like only the royals were allowed to wear purple. Where did that come from? ,And so I did a little more history than I thought I might do and it just led me down what I think was a very interesting path.

ROBERTS

11:09:26
Well now, one of the things you say in the book is that the legal regulation of dress is ubiquitous. Really. Why is that? What is it about dress, about grooming, about jewelry, about cosmetics and all of the ways in which we adorn ourselves that intersects with the law?

ROBSON

11:09:43
So I think there are two kinds of regulations, so one is direct right, what you can wear to school for example, what one can wear in prison, when you think of the military in uniforms, you know, all those kinds of things. And then another kind of regulation is indirect. When you think about just what clothes are on offer at a shop, the law has, and constitutional law, has had a great impact on where that clothing is made, under what conditions, where it comes from.

ROBERTS

11:10:14
And you say that you went back and looked at some of the history here and one of the interesting dimensions of the historical part of the book is that, particularly back in England, that there were a lot of laws that related. You mentioned the use of the color purple. But there were really close correlations between law and custom and social class, hierarchy. Explain what you mean by that.

ROBSON

11:10:41
So there would be laws that said, for example, who can wear silk, right? So if you had this status, you could wear silk, if you were a baron or not a baron. And interestingly, they changed throughout time. There are lots and lots of laws being passed both by parliament and proclamations by the monarch and so they would change.

ROBSON

11:11:04
And I think, for me, one of the things that was most enlightening is that they did have to do with social status clearly, but there were also ways of regulating other kinds of things and I think that that pervades even now.

ROBERTS

11:11:16
Well, what's a good example of what you're talking about?

ROBSON

11:11:17
So the other kinds of things would be the English wool industry. So requirements that people actually do wear wool so that people had to be buried wearing wool and nothing else. The only exception for everyone, and this was not about class, was if one died of the plague and so presumably they weren't doing...

ROBERTS

11:11:39
Was this the wool lobby put this rule in? I mean...

ROBSON

11:11:40
Yes. So it was the wool lobby. Only the wool lobby at that time was the entire country so that England really made its fortunes on wool and exported it, made wool. That was almost the base of its economy for a long time.

ROBERTS

11:12:01
So the origins of these laws are actually rather complex, some of them relating to, as you say, class distinctions. One of the things that you point out in the book at one point, it was illegal to wear plaid in certain places.

ROBSON

11:12:12
Yes. So plaid is actually one of my big favorites, perhaps because as a child I did not like plaid. But that was really about nation-building, if I can use that word. So if you think about plaid, you think of Scott's plaid and so the English. after some Scottish, what they call uprisings, then outlawed plaid.

ROBSON

11:12:34
So if you were wearing plaid...

ROBERTS

11:12:36
Because that denoted Scottish nationalism?

ROBSON

11:12:40
Yes, yes. which they were then trying to suppress.

ROBERTS

11:12:47
So that would be the equivalent of. say. banning a language...

ROBSON

11:12:49
Yes.

ROBERTS

11:12:51
...which often has been used in other countries as a way of solidifying a national identity and diminishing tribal or sectarian identity?

ROBSON

11:12:58
Right. And it was used in England as well, like banning Gaelic, banning the Welsh language.

ROBERTS

11:13:04
And so plaid just was another version of it, banning?

ROBSON

11:13:04
Yes, yes. And banning Irish hairstyles, certain kinds of hairstyles which we would from the description, I would think, was kind of like a mullet, which might be familiar to some people, but...

ROBERTS

11:13:21
But also you're saying that this gets complicated because some of the laws related to, as you say, to class and some related to nationalism, some related to economic self-interest and this because cloth, textiles, clothes are a very basic commodity in many economies, including the American economy?

ROBSON

11:13:38
Yes. And there was overlap in terms of what the purpose of the law was so that it might be both economic and about nationalism and about class and class stratification.

ROBERTS

11:13:51
One of the examples you use relating to America is not just how clothes were mandated and how they were worn, but then how they were used. And you use the example of that in the Constitutional Convention, people referring to William Penn's hat. Tell us that story.

ROBSON

11:14:11
So the First Amendment has an assembly clause and it protects the right of assembly. And most people don't use it very much and it's generally subsumed under the speech clause. And actually, at the Constitutional Convention, that was one of the arguments about it. We don't need an assembly clause and the person who made that argument...

ROBERTS

11:14:31
Because we have a speech clause?

ROBSON

11:14:33
Because we have a speech clause. And the person who made that argument sort of had the ill fortune to say that would be as silly as saying men must be required to wear hats or men cannot be required to wear hats. And that, of course, for the people who were opponents of it said, yes, and that's exactly the problem.

ROBSON

11:14:54
And what they were thinking about was a famous trial involving William Penn who, as we know, is the person who founded Pennsylvania. But when he was a Quaker in England, there was a famous trial and as part of that trial, he was being prosecuted for unlawful assembly.

ROBSON

11:15:08
And then, during the trial, it was kind of a setup. He was asked to remove his hat and then put back on his hat and then remove his hat again when the judge came in. And removing your hat for a Quaker is known as hat-honor or the refusal of hat-honor. And it's this custom that we had, it was tipping your hat and Quakers did not abide by that custom because of religious reasons and he was held in contempt of court.

ROBSON

11:15:35
And so a long trial about that, but it has resonance. And if you know the story, which most of us don't anymore, you can actually see it percolate throughout Supreme Court opinions in different ways.

ROBERTS

11:15:53
And the meaning being that there are certain religious customs like not tipping your hat that have to be respected or that a lack of and in America, you don't defer to social class in the same way that you do in England.

ROBSON

11:16:11
Yes, so it's about hierarchy as well as about religion and about freedom, freedom of speech.

ROBERTS

11:16:17
And also, one of the things that runs through your book is the idea -- and you mention that you've written a lot about sexuality and gender identity, and this is part of what led you into it. And you point out that in a number of cases, dress relates to sexuality and the regulation of sexuality and one of the examples you use is "The Scarlet Letter."

ROBSON

11:16:41
So in "The Scarlet Letter," it's sort of an interesting idea. Many of us have read it in school and "The Scarlet Letter" was written 200 years after the actual event. Many historians think that it's very accurate. I actually went back and tried to, with the help of some librarians, tried to find cases in the Massachusetts colony around the 1600s about people being branded or having to wear clothes with certain letters.

ROBSON

11:17:15
So if you were intoxicated publically, you would have to run around with a shirt that had the letter D on it for drunkenness and in terms of sexuality, obviously "The Scarlet Letter" is a lot about policing women's sexuality. And here, she had had a child out of wedlock.

ROBERTS

11:17:29
And had to wear a scarlet A?

ROBSON

11:17:32
A, presumably for adultery, although when you go back and actually read the book again and again, it's a little unclear as to the adultery and whether she was married or not. She presumably was, but that kind of led me down a path that, too much literary.

ROBERTS

11:17:49
But also one of the most common forms of regulation is skirts, short skirts on young women in particular, whether it's a school code or whatever. And have they been upheld as legal, by and large, or not?

ROBSON

11:18:03
Well, it depends on sort of where they are. And so one place where policing around sexuality, both in terms of gender norms and in terms of women's sexuality or a girl's sexuality, is in schools. And so we think of short skirts as a common example.

ROBSON

11:18:24
Another interesting example, and I think is a little bit counter-intuitive, is making girls who are graduating high school wear something called a drape, which is kind of an off-the-shoulder drape for their yearbook picture and some people have sued on that.

ROBERTS

11:18:39
Interesting. Ruthann Robson, her book is "Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes." Give us a call. We have some lines open. Send us an email. Give us your thoughts on this subject and Ruthann Robson and I will be right back.

ROBERTS

11:20:05
Welcome back. I'm Steve Roberts sitting in today for Diane. And this hour I'm talking to Ruthann Robson, a law professor at the City University of New York who's written a book called "Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes." You can join our conversation, as always, at 1-800-433-8850 or send us an email.

ROBERTS

11:20:26
And Ruthann Robson, we were talking about sexuality and the regulation of sexuality through clothing. And one of the well-known incidents you talk about in your book is the wardrobe malfunction of Janet Jackson at the Super Bowl. And you point out that if Justin Timberlake had suffered a similar malfunction, there wouldn't have been anything like the same outcry. Talk about sort of the double standard that relates to female sexuality in clothing as opposed to men.

ROBSON

11:21:00
Well, the idea of breasts and women's topless-ness really is a sight at which there are many cases. And I think two interesting cases that I compare and contrast in the book that really speak to me have to do with topless joggers, one of whom is a man -- and they both happened in Florida -- and the city of -- or the town of Palm Beach had a law that said no one, men or women could jog or appear shirtless.

ROBSON

11:21:30
They fined him. He happened to be a lawyer and he brought his case to the federal courts. And the federal courts basically said, that's crazy, that there's no real rational reason for requiring men, specifically men, to wear a shirt during the day while they're running. It kind of contrasts that case with another case of a woman who was kind of run, walking, jogging on a beach. And the beach had a history of being a topless beach. And she was arrested. And the court really didn't have any problem with saying, no, women have to wear top coverings.

ROBSON

11:22:11
And there are a lot of different cases around all of this. One exception that's been somewhat interesting has been for breast feeding. And, as I point out in the book, for me one of the interesting things about that is that really involves the only actual difference between men and women's breasts, that one can lactate and the other cannot.

ROBERTS

11:22:31
And do you see this changing in the sense that one of the themes that you talk about in the book, while most regulations have related to women, particularly regulations that can be sexually related, but the whole baggy pants, saggy pants phenomenon has caused a lot of controversy. One thing I learned from your book that I never knew was that it was a style that really started in prisons because men were not allowed to wear belts and their pants sagged.

ROBERTS

11:23:07
But talk about that and how the law has dealt with that very interesting dimension of clothing as an expression of people's identities and attitudes?

ROBSON

11:23:19
So I'm not sure that the law -- or that the style actually started in prison. I mean, that's what some people say. And something that I find interesting about the saggy pants phenomenon is that interest in how did the fashion start, right, which is not an interest that we often have about other fashions, right. So there's some linking of it to prison or to homosexuality. And really then I think that that becomes kind of a code word for urban racialized youth culture. And that, to me, really becomes the problem with the regulations around saggy pants.

ROBSON

11:23:57
I also think that men's sexuality has been regulated a lot. So even in the 1500's there were statutes in England, the same kind of laws that we were talking about before, that talked about how long men's tunics had to be. And it really was a way to my mind of policing the sexuality of young men. And some scholars have written about that. So I think that we're preoccupied with young people's sexuality, both male and female.

ROBERTS

11:24:25
And the law has tried to -- there are a lot of cases now related to the saggy pants phenomenon. And I gather that at least a number of them have tried to draw distinction between pants that reveal underclothes and pants that reveal private parts that could be -- then come under indecent exposure statutes.

ROBSON

11:24:49
So the ones that are trying to regulate indecent exposure are probably on more solid legal footing. The ones that are trying to regulate showing of underwear are on the less solid legal footing. And there are real problems in terms of what they're exactly trying to regulate. And one thing that when I look at at least the direct regulation of some of the saggy pants laws, it does again -- I keep talking about the tutors -- but it reminds me of the tutors again because there are a lot of things like how many inches can the pants sag below the natural waste line. How do you look at a natural waste line?

ROBSON

11:25:27
So there's this notion of trying to be precise about something, which in law can be good but then it really does sound a little like it's fetish-izing how one's pants should look.

ROBERTS

11:25:40
Well, it sounds like that one of the distinctions here is what is the contrary interest? You know, if people -- if there's a presumption that people have a right to express themselves and wear what they want, but that law becomes permissible -- regulations become permissible when there's another interest involved, public order or decency. And that it sounds like the law has tried to find a way to protect legitimate free speech and identity, but also there are times when, as we know, free speech does intersect with other interests.

ROBSON

11:26:17
Right. So decency I think is one of those catchall concepts and we have to be careful in terms of how we're using that.

ROBERTS

11:26:23
Sure. One person's decency is someone else's prudishness, right?

ROBSON

11:26:27
Exactly. And then there are real questions as well in terms of what's being regulated and if it is free speech. So there are a couple of cases in which the person tries to raise a claim that saggy pants is a freedom of expression. And the courts have said, no that's not because it's a style, it's a fashion. And you're really not expressing anything.

ROBSON

11:26:54
And I find those cases -- and they're in different aspects of dress -- very interesting because what it's about really is the government getting to have it both ways. It gets to say, this is regulated because it must mean something and we don't like it but if you raise a free speech or free expression, well, it doesn't really express anything. And so it's like in this, you know, never-never land.

ROBERTS

11:27:18
Well, this area of free speech is one that runs all through your book in many areas. And one of the brighter lines here is in schools, which you write a lot about. And there's just been a recent case of the I heart Boobies bracelet. But also the larger question of when can -- it's legitimate to regulate student behavior, student expression. And you talk about the disruptive standard -- the Tinker (sp?) standard I think from this Tinker case. And talk about that particular environment where schools should be fostering free expression but also have an interest in order as well, and how that has related to the law and free expression.

ROBSON

11:28:08
So one big problem with some of those cases is really -- is what the student wearing isn't an expression. So in the I heart Boobies case and in some other kinds of cases, if there are words or a recognized symbol, than you really threw the threshold of that there's expression. Other dress codes, you're not really quite sure what they're about.

ROBERTS

11:28:28
And in that case it was -- the right of the young women to wear these bracelets was upheld, right?

ROBSON

11:28:34
Yes. And so we get to the disruption standard as well as thinking about was it lewd? And one thing that the district court judge said was, one, the school keeps saying the word booby and two, it's also the name of a bird, it's the name of some other things. And so how can we just take this one word and isolate it?

ROBSON

11:28:55
But for other kinds of dress that don't have expression, it's also interesting to look at how schools try and regulate it, right, so that we talked about short skirts, fishnet stockings, print pants, which is one of my favorites, not being able to allow print pants. But when they're words than you really have this -- or symbols -- disruption standard. Tinker, the case, as well -- involved black armbands -- as well as having disruption, also talked about the rights of others. And I think that that's really an under-theorized problem in terms of is what the person wearing or saying through their clothes, does that really infringe upon the rights of others?

ROBERTS

11:29:49
But by and large, this disruptive standard has, as it's been applied as I read it in your book, has been applied certainly in the I heart Boobies case and others given some wide latitude to free expression in schools. If people can make a legitimate case that they're saying something, expressing an idea, that's protected.

ROBSON

11:30:09
To some degree, although schools that have banned the confederate flag either on clothing, including purses and belt buckles and things like that, that banning has been upheld by the court.

ROBERTS

11:30:24
But you can see where that would be -- under the disruptive standard that could be particularly offensive to a certain group.

ROBSON

11:30:31
Yes.

ROBERTS

11:30:32
And that would be the legal fulcrum in which you could justify a ban, right?

ROBSON

11:30:35
Yes. And they talk about, well, this would be disruptive. I think you could reach the same result in really talking about the rights of others, which I think might be a more applicable standard. And then there are other cases in which if a school bans all words or symbol on clothes, those have been upheld, including someone who after several suspensions and run-ins with the principal had a shirt with a First Amendment on it. And that was banned and the courts upheld that.

ROBERTS

11:31:06
And another context in which...

ROBSON

11:31:09
Future lawyer right there.

ROBERTS

11:31:10
Yeah, right there. Sign that kid up. But another context in which the rights of others and the rights of free speech really impinge are in courtrooms. And that's a very interesting chapter in your book about particularly when you're dealing with people who come in, they're defenders of the defendant, advocates for one side in a court. And in that context, the legal process runs up -- the fairness of the legal process has run up against First Amendment expressions.

ROBSON

11:31:41
As well as the rights of a criminal defendant under the Sixth Amendment and Fourteenth Amendment, right to a fair trial, things like that. So when you think about a courtroom, the judges' robes, right, so what the judge wears. You think about council, the attorneys, what they're wearing. And then you think about in a criminal case what the defendant is wearing or not wearing in terms of prison guard shackles, things like that. And then the spectators, there are actually cases about spectators wearing buttons or clothing either supporting the defendant or supporting the victim.

ROBERTS

11:32:20
So that there is -- as we've said a number of times, there are competing interests often.

ROBSON

11:32:27
Yes.

ROBERTS

11:32:27
You know, you have a right to a fair trial but you have a right to free expression. What the law has to do is find a balance between those.

ROBSON

11:32:34
Yes. And then sometimes it's also about the rights of the spectator or the rights -- you know, access to the courts. And more and more courts are having dress codes for the spectators, and not even in a judicial preceding even to come into the court not wearing shorts in court. A judge in Tennessee said that he didn't want women attorneys coming in in short-sleeved jackets in the summer.

ROBERTS

11:33:01
My goodness. I'm Steve Roberts and you're listening to "The Diane Rehm Show." You're also listening to Ruth Robson, professor of law at City University of New York, talking about her new book "Dressing Constitutionally." And Ruth, I've got some emails and let me read them. Some very good ones here. First one from our website, "Does wearing other ethnicity clothing to workplaces -- to work place you outside of the constitution? And who decided that Western wear is the only appropriate clothing for work, even if we're in the United States?" Talk about this issue of ethnic clothing including jobs and other issues of that sort.

ROBSON

11:33:39
So one divide would be between religious clothing and ethnic clothing. And another big divide would be as between private employers and public employers. So private employers aren't generally covered by the constitution, but we do have some laws, some of which are constitutionally then challenged by employers, that seek to protect ethnic clothing, also ethnic styles. And some of the oddest cases to my mind have been around hair color, including African Americans and what hair color and hairstyles they can have to conform to the employers' so-called look policies. What the employer wants someone to look like.

ROBSON

11:34:26
And so cornrows, the court has -- or courts generally -- lower courts have allowed employers to prohibit. And they've said that that's really actually not about race and they have used as their example the old movie "Ten" starring the white actress Bo Derek, which most of us don't remember. I think it was, like, in the '80s but that's the thing that gets talked about. And then there are cases about African American women wearing blond hair. And that not being allowed by the employer and that being upheld.

ROBERTS

11:35:07
You know, one of the interesting dimensions here that the caller brings up because there have been so many cases in Europe, of France in particular, barring hijab, the Muslim head scarf, which in this country, in fact, quite the opposite is happening. You notice employees, say, of airlines, it's part of their uniform now. Delta Airlines, they provide a head scarf for Muslim -- observant Muslim women. Talk about the difference in attitude. Why is there such a reaction against particularly Muslim clothing in Europe, whereas here you actually see it more frequently?

ROBSON

11:35:44
There have been cases in the United States in which there has been prohibition of both the hijab and the niqab, which is a veil, face covering. And some of those have been around teachers, prohibiting teachers from wearing it. Some have been around courtrooms. Some have been around driver's licenses and things like that. And so I think it might be more permissive in some instances. I think that it's not generally as welcoming in the United States as we might like to think.

ROBERTS

11:36:20
But more welcoming than in Europe where there have been -- France, in particular, has been much more adamant in banning hijabs and other -- particularly...

ROBSON

11:36:30
In public places in France, yes.

ROBERTS

11:36:31
Yeah. And another dimension of this is in addition to hijab, religious garb, there have been court cases relating to wearing of yamakas, the Jewish skull cap, as well as Sikh turbans. What's generally been the law about garments that relate to religious practice and tradition?

ROBSON

11:36:57
So as a public matter, right, out on the streets generally there are no prohibitions. The problems become when there's employment, especially if there's a uniform. And does the religious clothing go with the uniform or not? There are some problems in public schools in terms of teachers, as I've said. There are problems sometimes in public schools in terms of students. And some schools have said that certain kinds of religious gear are actually gang wear, like rosaries. And then there are lots and lots of cases about religious wear in prison.

ROBERTS

11:37:34
We'll talk more about that when we come back. Ruthann Robson. Her book "Dressing Constitutionally." I'm Steve Roberts sitting in for Diane. We'll be back with more of your calls and emails. Stay with us.

ROBERTS

11:40:02
Welcome back. I'm Steve Roberts, sitting in today for Diane, and my guest this hour, Ruthann Robson, professor of law at the City University of New York. Her new book is, "Dressing Constitutionally." And we've been talking about all the ways in which dress and hair and jewelry intersect with law. And, Ruthann, I have a number of emails here. Let me run through them. Wesley, in Greensboro, N.C., writes, "I recall a protest some years ago with women citing the 15th amendment to go topless on the beach, as men are allowed to do. What was the court's justification to overrule them?"

ROBSON

11:40:36
So the 15th Amendment? Maybe the 14th Amendment.

ROBERTS

11:40:39
Maybe the 14th, yeah.

ROBSON

11:40:41
And that would be in terms of equality, which is exactly the point that we were talking about before, if men can, why women can't. And where is the equality in that?

ROBERTS

11:40:50
Were these bans on female topless-ness upheld by and large?

ROBSON

11:40:54
Generally, yes. There are one or two courts that have said, no, there are some equality issues. But generally, in terms of equality, what they say is men and women are very different in this regard.

ROBERTS

11:41:07
And that's the legal justification for…

ROBSON

11:41:08
Yes.

ROBERTS

11:41:09
…treating genders differently. "Back in the '70s," writes Ed from Birmingham, Ala., "Back in the '70s we had a federal judge who wanted to require all lawyers to wear white shirts. Fortunately, the other judges talked him out of it." Do you know that case?

ROBSON

11:41:24
No. No, I don't know that case. That's a great question, and I think it kind of points out the -- when is something custom and when is something really have a basis in either reality or it goes to something that we might agree on. And obviously that was that judge's personal predilection.

ROBERTS

11:41:46
But the decorum is a value.

ROBSON

11:41:48
Yes.

ROBERTS

11:41:50
Particularly in a courtroom.

ROBSON

11:41:51
Yes.

ROBERTS

11:41:51
Maybe not at a demonstration in a park, but in a courtroom, judges do have more latitude.

ROBSON

11:41:57
Some latitude, but not as much sometimes as they like to think. I mean, from a practicing attorney. But things like that -- and it's very difficult for attorneys to challenge them, but a few attorneys have. Women attorneys around pants, men attorneys around ties, there are some cases about what constitutes a tie.

ROBERTS

11:42:18
Interesting. Max writes to us, "I was told long ago that the song "Greensleeves" was a reference to a prostitute because prostitutes are required to wear green. Is that true or simply a folk myth?"

ROBSON

11:42:31
I haven't heard that. I'm going to have to put that down to research.

ROBERTS

11:42:35
Okay.

ROBSON

11:42:35
But that's not one I've run across.

ROBERTS

11:42:37
Here's another one, perhaps you know something about. Sharon writes, "I just know a man invented nylon stockings so men could see women's legs. They are hot in the summer and cold in the winter, but not very good for being out and about or for working, help keep women at home." Is that true?

ROBSON

11:42:52
I haven't heard that one either, although, I have run across lots and lots of regulations of pantyhose, what they have to look like, do they have to be worn, their color.

ROBERTS

11:43:05
What's the justification for that?

ROBSON

11:43:06
Generally there is no justification. Generally, there is no justification. They're just in terms of a dress code, either at work, in public employment, in schools. I'm very interested in the increasing prohibition in schools of fishnet stockings. They seem to have taken on…

ROBERTS

11:43:26
That's really pushed a button somewhere?

ROBSON

11:43:27
New valence here.

ROBERTS

11:43:30
Here's one, and you mentioned this a little bit before, but -- when we had an earlier question about ethnic customs, as opposed to, say, religious ones. "African American people have had to fight legal battles to wear their hair naturally, as opposed to straightened. There have been cases where African American women have been fired for having afros, dreadlocks or braids. I've had dreadlocks since 1996 and work as an academic advisor for a state university. Thirty years ago I probably would not have been hired because of my hair." Is that true, you think?

ROBSON

11:43:59
I think so. And I think, not to analogizing public employment with prison, but some of the cases in terms of prison have really been interesting around dreadlocks, including a case in which a prison chaplain -- and this was challenged -- said that, well, if you're a Rastafarian you're allowed to wear dreadlocks, but otherwise you are not allowed to wear dreadlocks. And that kind of calls into question why the prohibition of dreadlocks or why this kind of direct prohibition?

ROBERTS

11:44:32
But a prison is a very particular environment.

ROBSON

11:44:34
Yes.

ROBERTS

11:44:36
And where control is much more accepted and common.

ROBSON

11:44:39
Right.

ROBERTS

11:44:40
And also, I gather a lot -- you mentioned earlier the question of gang signs and gang apparel. And I gather part of the motivation or the justification for regulations within prisons have to do with regulating gang activity and gang membership.

ROBSON

11:44:55
Sometimes and sometimes it's the general security. Could a weapon be hidden somewhere? But in terms of employment, employers, even public employers, sometimes have these what they call look policies, in terms of dress codes and what people should look like. And it really is about branding people. And they use that word. And if we think of military uniforms and police uniforms, it's very much akin to that.

ROBERTS

11:45:21
Here's a related email. "I am a lawyer," writes our listener, "working with prisoners. And some of the most poignant cases I've seen are prisoners whose religious beliefs forbid them from cutting their hair. I practice in Virginia and the Virginia Department of Corrections considers this a safety issue and punishes these men by putting them in segregation. Some of the prisoners have been in segregation 23 hours of isolation a day for 10 years or more for allowing their deeply held religious beliefs to not cut their hair."

ROBSON

11:45:54
That completely resonates with the cases that I've seen. And I've seen, in terms of cases in almost every state, a lot of Native American cases, a lot of Muslim prisoner cases. And it really is a place where we have to think about is the prison regulation really being evaluated by the courts with the kind of scrutiny that it should be?

ROBERTS

11:46:22
And, again, kind of the fairness test, right?

ROBSON

11:46:24
Yes.

ROBERTS

11:46:24
Is there a legitimate interest at stake here of decorum or safety? Or is this -- goes beyond that to be just an expression of an attitude which is not constitutionally protected?

ROBSON

11:46:36
Right. So is it really about prison security? Are there other ways to think about it? Or is it about control? And another thing that comes up in the prisoner cases is the different control of men's hair and women's hair.

ROBERTS

11:46:51
And what is the difference?

ROBSON

11:46:51
So generally men's hair has to be shorter than women's hair. And some people have had some success in challenging that, although other people, when they've challenged it prison officials have come on the stand and said that's because women are generally lower security risks and some courts have accepted that.

ROBERTS

11:47:12
Now, one of the dimensions that you write about in the book is lack of clothing, meaning nudity. And strip searches, to take an example, of forced nudity. Generally been upheld as a safety issue?

ROBSON

11:47:26
Disparate, but generally upheld as a safety issue. Strip searches in the schools, the courts have had a little more sympathy, or at least some of the justices on the Supreme Court have had a little more sympathy for the person being searched. Strip searches for people going to jail, even for a traffic offense, that the court has not had so much sympathy for that. And then there are stripping that aren't really searches, as in keeping prisoners -- since we were just talking about prisoners -- naked either for security reasons or in terms of international kinds of things, in terms of ego-down prisoners.

ROBERTS

11:48:11
Humiliation and…

ROBSON

11:48:13
Humiliation.

ROBERTS

11:48:13
…as a form of interrogation.

ROBSON

11:48:15
Yes. So interrogation and humiliation and just kind of putting those things together, keeping people naked, as well as using clothes as a reward, if you tell me then I'll let you have your underwear or something like that.

ROBERTS

11:48:27
Let's go to some of our callers. And let's see, let's start with Marie in Oxford, Md. Marie, welcome. You're on "The Diane Rehm Show."

MARIE

11:48:38
Good morning. And how are you?

ROBERTS

11:48:41
Delighted to have you with us. What's on your mind this morning?

MARIE

11:48:44
Well, while I was listening to your discussion I was reminded of a situation that happened to me in the '60s. I was hired by a very large company, and I'd been in their employ by about six months, and I was given an excellent review and a raise. And a few months later I decided to, what they called then, frost my hair, which is now highlighting. I was told -- and not quietly -- that had I come looking for the job looking like that I would never have been hired. And in addition, this was not done in a private office with a private conversation. It was done openly in front of other people.

ROBERTS

11:49:25
My goodness. Your reaction, Ruthann?

ROBSON

11:49:27
So a private employer, again, it would be the kind of discrimination statutes and things like that. And one of the really terrible problems about the present state of the law is to succeed on any kind of discrimination claim, you would have probably had to find a man whose hair was frosted who they didn't complain about.

MARIE

11:49:52
Yes.

ROBSON

11:49:53
But I think it really does point to, you know, that you wouldn't think that your employer would be worried about the highlights in your hair.

MARIE

11:50:02
The quality of my work was much more important to me. And actually she didn't stop there. After that she picked on my handwriting.

ROBSON

11:50:12
Well, there you go.

MARIE

11:50:12
She couldn't say anything about my clothing because I always dressed well and I have a good work ethic. One more thing, when you start to research the information on the nylons, I happen to work at the site where it was invented. So go to William (sic) Carothers and you'll find some more information about nylons.

ROBERTS

11:50:32
Thank you.

MARIE

11:50:32
Thank you for taking my call.

ROBSON

11:50:33
Thank you.

ROBERTS

11:50:34
Thank you, Marie. We appreciate it.

MARIE

11:50:35
Bye, bye.

ROBERTS

11:50:36
Let's talk to Emily, in Annandale, Va. Welcome, you're on "The Diane Rehm Show."

EMILY

11:50:45
Hello. Thank you for taking my call. I’m just calling in regards to what you were talking about earlier about school dress codes.

ROBERTS

11:50:57
Right. Go ahead.

EMILY

11:50:58
And as a high school student I've had a lot of really personal experience with that. And what I've seen happen is -- especially when it comes to, like, you have to cover your shoulders, etcetera. I've seen that and I've interpreted that as possibly inadvertently sexualizing body parts that aren't meant to be and that it ends up being degrading and pinning the -- they always say, you know, don't distract the boys. And I've always wondered why that's on us.

ROBERTS

11:51:31
Well, it's a good -- stay on the line, Emily, and we'll get Ruthann's reaction.

ROBSON

11:51:34
Thank you for your question. Great question. In terms of thinking about that, you know, so it's kind of, you know, presuming that all boys are heterosexual and that all boys are going to be turned on by a shoulder. And in thinking about the legal standard of disruption, and I think your point really goes to this, I think sometimes that the schools' dress codes are actually more disruptive than what the underlying act is that they're trying to police. Right?

ROBSON

11:52:07
So now, everyone is thinking about shoulders. Is this off my shoulders? Is this not off my shoulder? And some people might be testing, can I get away with this, can I not get away with that? I mean, I certainly did that when I was in school. And so then that becomes a focus point. And more and more I think dress codes are becoming very, very precise. Or maybe they've always been precise, but shoulders is really a good example. And I'd be interested to know in your high school then, when you graduate, if they're going to make you wear the drape for your yearbook picture that exposes your shoulders?

EMILY

11:52:43
From what I've seen of the yearbooks, I think so.

ROBSON

11:52:47
Well, that's interesting then, isn't it?

EMILY

11:52:49
Yes. I'm probably going to be that one person who's like, don't put that on me.

ROBSON

11:52:53
And you might have a case.

EMILY

11:52:56
I might.

ROBSON

11:52:56
There are some good cases on that.

ROBERTS

11:52:59
Emily, thanks so much for your call. We appreciate it.

EMILY

11:53:00
Thank you for taking my call.

ROBERTS

11:53:02
Sure, absolutely. I'm Steve Roberts, and you're listening to "The Diane Rehm Show." Let's turn to Natasha in Cincinnati, Ohio. Welcome. You're on "The Diane Rehm Show."

NATASHA

11:53:12
Thank you for taking my call. I've had a great time listening to you today.

ROBERTS

11:53:15
Good.

NATASHA

11:53:17
My question is, as a forensic scientist we are required to go and testify as an expert witness in cases we've worked on. So whenever we're at work we have to have an outfit available in case we get called to court that's a little bit more appropriate. However, one of the things that came up, you know, people are griping and, you know, make sure what you wear is, you know, appropriate, is that in some courts, most likely in the federal court, the judge may not be okay with the expert witness wearing a pantsuit. As a woman you're supposed to wear a skirt.

NATASHA

11:53:47
Now, I've always been nervous about this, you know, because I usually like to wear pantsuits. If I wear a skirt and the judge doesn't allow me to testify and I have to go change, is that a constitutional -- like I feel like it's a violation of my constitutional rights in order to be able to wear a pantsuit. I think that's reasonable enough, but from what I hear is, you know, you will not be able to testify in some cases.

ROBSON

11:54:13
Well, that's a great question. Thank you for calling. And I think the short answer, without giving any legal advice, is yes, you must absolutely be allowed to testify, especially in federal court. And there have been a lot of gender reports around things like that. The non-constitutional question, I think, is something that many women and many men also run up against in terms of going to court, is the do I want to go there? Right? Do I want then to have to have this fight with the judge? Do I want the jury not to respect me or not?

ROBSON

11:54:47
But I would look around and see what other people are wearing and I would go with the pantsuit. That's what I’m telling you. But that's not legal advice.

ROBERTS

11:54:55
Thanks, Natasha. We appreciate.

NATASHA

11:54:56
Thanks so much. Thank you very much.

ROBSON

11:54:58
Thank you.

ROBERTS

11:54:58
Natasha's question, Ruthann, raises a very interesting larger issue. You have a woman whose a forensic scientist, maybe 20 years ago you had far fewer women in a role like that. As women are so much more a part of every professional setting, like Natasha, is that having any impact on loosening some of these more prudish or more straight-laced rules that men have imposed on women?

ROBSON

11:55:27
Well, I think it certainly kind of loosened up the gender requirements in terms of women to dress one way, men should dress another way. This is the way it looks like. And as I was saying to Natasha, there is a lot of gender-bias reports in the courts and things like that. The other problem has been that women need to look like women and men need to look like men. And so in that kind of gender stratification or gender disparity that has been imposed. But certainly, over time, it has somewhat changed since the 1970s. Certainly.

ROBERTS

11:56:04
And when you get a female Secretary of State traveling the world in a pantsuit, I mean, that is -- there's pop culture. And those kinds of images also have an effect on what's acceptable and what's appropriate for our most prominent, you know, female diplomat.

ROBSON

11:56:17
Yes. Absolutely. But even in the 1940s some judges were saying clothes have loosened up now, people should be able to wear what's fashionable, we shouldn't apply different, you know, such rigorous standards.

ROBERTS

11:56:32
And final question, on the issue of -- you wanted to make one comment about buying clothes and the importance of that as part of your thesis here.

ROBSON

11:56:50
So one thing that I was looking at really was -- in my last chapter -- is about dressing economically. Everything from -- we talked about England and wool, cotton and slavery. Textiles and the manufacture of textiles and now things like the Bangladesh fire, different kinds of safety conditions. You don't think of making clothes as hazardous, but it has proven to be for many people.

ROBERTS

11:57:14
Interesting point. You want to know more? Read the book. It's called, "Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes." Ruthann Robson, pleasure to have you with us this morning on "The Diane Rehm Show."

ROBSON

11:57:26
Thank you so much.

ROBERTS

11:57:27
I'm Steve Roberts, sitting in today for Diane while she gets a voice treatment and goes on vacation. She'll be back in mid-September. Thanks so much for spending an hour of your morning with us.
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