By Jackie Gharapour Wernz

I know many of you may be wondering why this blog has been so quiet. Well, I took the summer off! And guess what, Summer just ended in Dallas this week, something that I was certainly not used to when living in Chicago. Now that it’s finally not 100+ degrees outside every day, my break is over and I am ready to tackle the fall.

My nine-year-old daughter started a new public school this year. I was very surprised when she came home from school a few days into the new academic year telling me that she had been “dress-coded” for her skirt being too short. Now, those of you who know me may not believe this, but this 5’4″ mama has a fourth grader who is already over 5 feet tall! She has long legs and a small waist, which makes buying skirts that meet the old “three-inches-above-the-knees” requirement nearly impossible. Also, she’s in fourth grade—is there really a risk that any fourth-grade boys are going to be so busy ogling her that they can’t focus on learning fractions and other elementary school topics? Shouldn’t she be told how big her brain is at school, not how distracting her body is to others?

This situation got me thinking about “morality codes” in schools. Whether you’re talking about dress codes, for which 90% of enforcement reportedly falls on girls, or other rules based on gender stereotypes about how girls should look or act, back to school is a perfect time to remind ourselves of Title IX’s limitations on these types of requirements.

A recent story out of Louisiana provides a great backdrop for this discussion. Kaylee Timonet is a high school senior at Walker High School in Walker, Louisiana. On top of her 4.2 grade point average, Kaylee is president of both student government and Beta Club, tutors local children, and recently received an award for being an outstanding volunteer in Baton Rouge. But Kaylee didn’t make news for her stellar resume, or the fact that she was up for two prestigious scholarships and “student of the year.” Instead, after a video circulated of her dancing at a private party after homecoming, Kaylee became a national name because her high school kicked her out of student government and withdrew support for those scholarships and the “student of the year” honors. Her crime? Twerking.

For the uninitiated, here is your twerking primer. The dance has been around for at least thirty years, and there is no doubt that some people find it unsavory. But even a quick review of common justifications shows explicit reliance on stereotypes about women—particularly black women—often based on religious tenets that should not support decisions in public schools. Moreover, although some argue that the dance is terrible and degrading, others argue that it can have positive impacts on female body image.

In Kaylee’s case, the video was taken and shared by the DJ at the party. Her mom was at the party and had no problem with Kaylee’s dancing or the video, which she said she saw before it was posted and “didn’t think anything of it.” But Kaylee said she was ambushed by furious teachers at school the next week, who said “they didn’t want her representing Walker High School.” Her principal allegedly called her into a meeting in the office to tell her that she was not “living in the Lord’s way,” all while Kaylee was purportedly sobbing in the school office.

Of course, we don’t have all the facts, but the allegations in this case, if verified, could spell trouble for the school under Title IX. What Title IX concerns should schools think about when considering similar situations, including codes against “sexy” dancing or dress?

1. What’s the Rule? In many cases, a problem can occur just because a school doesn’t have a rule in place that allows the consequence it is imposing. I’m guessing Kaylee’s high school didn’t have a rule against “Twerking at parties,” and instead relied on some vague expectation in an extracurricular code of conduct, if that, in stripping Kaylee of her many accomplishments. Implementing a rule on an “ad hoc” basis can put a school at particular risk of challenges under Title IX and other civil rights laws, particularly if the school has ever allowed anyone else to engage in similar conduct who is of a different sex, race, or other protected characteristic than the punished student.
2. No different treatment. Even if a school has a rule, if it only applies to girls or boys, it could be a Title IX problem. If a school had a rule that explicitly prohibited girls from twerking, for example, that would violate Title IX’s prohibition against treating students differently because of sex. Unless the school had a really good reason for the different treatment, it would likely violate the law. For the same reason, a rule that says girls must wear skirts that come to three inches above the knees or (the nightmare of all short-armed/long-legged girls everywhere) to the end of the fingertips but does not require boys to do the same would be problematic. Although it hasn’t been tested yet, I could also imagine a strong different treatment argument if a school punishes girls for causing a disruption because they are perceived as “sexual” while doing nothing about the individuals who are the real risk of disruption in the scenario—boys who are apparently not aware of rules of respect and body autonomy.
3. No disparate impact. Many schools don’t go so far as to have a rule that explicitly applies to only students of one sex. If they have a written rule, it applies equally to boys and girls. Does that get them off the hook? Not necessarily. If the school has a history of only enforcing the rule against one sex, it could be a problem. As noted previously, unequal enforcement is something we see often with dress codes. I wonder how many times my tall son, who attends the same school as his sister, has had his shorts scrutinized for length. I’m willing to bet none because the simple fact is that society generally focuses on the “sexiness” of young girls in school, not boys. Similarly, Black students and other students of color are often more harshly disciplined and targeted for dress code enforcement, which could lead to a violation of Title IX’s sister statute, Title VI.
4. No stereotypes based on gendered norms. Perhaps the biggest legal issue with a dress code is if it is firmly rooted in stereotypes of gender roles and how students should or will act based on their sex or gender. There often is no discussion about whether children in a particular class or school actually will be disrupted by a female student’s dress or her sexy dance moves—rather, disruption is assumed based on the shape of the female body and the stereotypical male responses to it. That could be discrimination based on gender-based norms, and the risk of engaging in that type of prohibited stereotyping should give school administrators pause before enforcing dress codes against female students.

These are just a few of the challenges that can be raised to “morality codes” including dress codes and responses like that in Kaylee’s case. Does it mean that dress codes should be abolished or that other “morality codes” must always be avoided? Not always. But school leaders should make sure legal counsel is regularly reviewing both their morality rules and how they are being implemented in practice to avoid a Title IX or other civil rights challenge. For help with this or any other Title IX issue, contact me at jwernz@thlaw.com.