D Gerasimow, The Regulation of Clothing in Law and Literature - The Authenticity of Snow and The Handmaid's Tale PDF

Gerasimow Prof.
Burton / Law & Lawyers in Literature
The Regulation of Clothing in Law and Literature: The
Authenticity of Snow and The Handmaids Tale
David A. Gerasimow
One day as we gathered in our conference room to shake
hands before going into the courtroom, he appeared
with four gold stripes on each sleeve of his robe. We
thought it must be a joke. Where did those come from,
we asked. Oh, I had the seamstress sew on one stripe
for every five years I have been on the Court, he
said. Just like the Lord Chancellor in Gilbert and
Sullivan. And the stripes stayed.1
Justice Sandra Day OConnor,
writing in memory of Chief Justice
William H. Rehnquist
I. INTRODUCTION
At its core, clothing protects the human body from the
dangers of an inhospitable environment, providing both safety
and comfort. Clothing has served these simple yet vital purposes
since prehistoric times. And for nearly as long, it has served a
number of other purposes as well. Over the ages, various
cultures have attached social, economic, religious, and
political significance to articles of clothing.
1
Gerasimow Prof. Burton / Law & Lawyers in Literature
Clothing has consequently become more than a means of
survival. It is now a way of identifying the self and of
communicating to others information about personal background
and attitude, as well as social standing, position, and rank. It
is effective at conveying this information because of its high
visibility and easy-to-recognize nature. A person may learn a
lot about another in one glance simply by examining his or her
clothes.
Because of its effectiveness at defining the self and at
providing social signals, various regimes regulate clothing,
either requiring or prohibiting certain garments. By eliminating
the freedom to choose ones clothing, these regimes substitute
their ideas about clothing for those of the individual. And
because of the tendency of clothing to have symbolic meaning,
this substitution forces the regimes ideas onto the individual.
The power of clothing in society has not gone unnoticed in
literature. Authors have used the regulation of clothing to
raise and discuss social issues and as a device to establish
larger themes. Part II of this Paper discusses the regulation of
clothing in literature.
Nor has the power of clothing gone unnoticed at law. Many
clothing regulations have been codified, formally or otherwise.
Part III answers the question of whether regulations appearing
in literature have parallels in real life. Part III answers this
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question in the affirmative, finding that many equivalents
exist. By examining the relevant sociological evidence in light
of two specific case studies namely, school dress codes and
military regulations governing uniform and appearance Part III
concludes that the literary depiction of clothing regulation is
strikingly accurate.
II. THE REGULATION OF DRESS IN LITERATURE
The regulation of clothing is a common motif in literature.
Although the regulations themselves vary, they often help to
develop broader themes. Orhan Pamuks Snow and Margaret Atwoods
The Handmaids Tale provide good examples of the regulation of
clothing as a thematic device. Yet Pamuk and Atwood use the
regulation of clothing to develop different themes a
difference suggesting the flexible and comprehensive nature of
the power, meaning, and importance of clothing, both in
literature and in real life.
A. Orhan Pamuks Snow
In his 2002 novel Snow,2 Turkish author Orhan Pamuk examines
the conflict between East and West3 and between secularism and
Islamic fundamentalism by chronicling a poet-journalists
investigation of a suicide epidemic among young women in Eastern
Turkey.4 Without explicitly taking sides, Pamuk creates realistic
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characters to personify opposing positions in the debate.5 In so
doing, Pamuk shows that each side is frequently as cruel and
intolerant as the other.6
Snow follows the journey of a poet named Ka, who has
returned to Turkey after twelve years of exile in Europe. 7 Ka
agrees to travel to the remote eastern city of Kars on behalf of
an Istanbul newspaper to investigate the numerous suicides by
young women in the area, but only after learning that an old
romantic interest of his named Ipek lives there, too.8 Ka is
snowbound after arriving in Kars a city that turns out to be a
center of political and religious tension.9
Kas investigation into the suicides reveals that the
secular governments prohibition on the wearing of headscarves
in schools may have been the cause.10 According to some of the
citys inhabitants, the young women, as devout Muslims, killed
themselves in protest of the ban.11 Yet, because Islamic
teachings condemn suicide as sin,12 the exact cause of the
suicides remains uncertain.13
The conflict between secularism and fundamentalism, and its
relationship to Kas investigation into the suicides, unfolds in
the fifth chapter of Snow, which contains the transcript of a
conversation between a murderer and his victim.14 The transcript
recounts the debate between a stranger who has travelled to Kars
and the director of an educational institute that has prohibited
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female students from wearing headscarves.15 Although the
conversation is composed and thoughtful at the beginning, it
ultimately culminates in the strangers killing of the director
in front of Ka and Ipek.16
The debate between the stranger and the director focuses on
conflicting rules dictating womens clothing. Specifically,
religious dogma and secularist law are at odds over what women
should and should not wear. On one hand, the Koran calls for
women to cover their entire bodies, including their heads.17 On
the other hand, the secular law of the Turkish state prohibits
women from doing so, at least in schools. The conflict between
these two rules governing dress drives the debate between the
director and the stranger.
The conflict, however, is not only about clothing. Rather,
it is also about the relationship between religion and the
secularist state a relationship that the stranger succinctly
summarizes when he asks, Can a law imposed by the state cancel
out Gods law?18 The question implicates not only the regulation
of clothing, as perhaps a superficial reading of the transcript
would suggest, but any one of a number of subjects on which the
laws of the secularist state differ from the mandates of
religion. In this way, Pamuk uses the regulation of clothing as
a vehicle for the larger debate between East and West and
between secularism and religion.
5
Returning to the regulation of clothing itself, but keeping
in mind that it is a medium for a broader social and political
discussion, the stranger and the director both offer arguments
on the regulation of dress, even though they disagree on which
rule is the best. In support of the wearing of headscarves, the
stranger cites the statistical findings of a Muslim scholar in
America, who purportedly concluded that the incidence of rape
in Islamic countries where women cover themselves is so low as
to be nonexistent and harassment virtually unheard of. 19 Relying
on this evidence, the stranger argues that headscarves empower
women to make a statement against rape and harassment.20
Additionally, headscarves provide women with respect
because those who wear them are not judged by their appearance.21
Besides saving women the ordeal of beauty contests, formal or
otherwise, headscarves also save women from the animal
instincts of men,22 presumably because men will be less likely
to rape absent visual stimulation. Without headscarves, and the
protection and respect they afford, the strangers reasoning
continues, Turkish women would be degraded and treated as sex
objects,23 as Western women have been since the sexual
revolution.24
The director responds to the strangers arguments in
several ways. First, he abdicates responsibility for the
regulation, instead attributing it to the government: Its the
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secular state that has banned covered girls, from schools as
well as classrooms.25 Second, the director recounts the
experiences of his daughter, who said that if I had to go into
a classroom full of covered girls, I wouldnt dare go in
uncovered.26 The prohibition on certain clothing, according to
the director, produces the counterintuitive result that it in
fact gives women more, rather than less, freedom to wear what
they want. The daughters feelings are not unique: Professor
Karima Bennoune, an American, female, Muslim legal scholar,
recounting her first visit to a Muslim country and the first
time she saw a veiled woman there, wrote of the experience: It
was the first time I remember feeling shame. It was the first
time I understood the impact one womans dress can have on
another.27
Third, and finally, the director flatly disagrees with the
strangers argument that society affords respect to a woman
wearing a headscarf, contending instead that it is the woman
taking off the headscarf who receives such respect.28 Here, the
director may be alluding to the progress achieved by Western
women who engaged in similar acts of defiance during the height
of the womens rights movement.
The argument between the stranger and the director does
little to resolve the object of Kas investigation, that is, to
determine the cause of the suicides among the areas young
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women. And the ensuing inability of the stranger and the
director to agree may show that fundamentalism and secularism
cannot be reconciled.
Although the reader is left questioning whether the
prohibition on headscarves actually caused the suicides, the
stranger is convinced that, when the director turned the young
women away from the institute, they became severely depressed
after having to choose between their honor and their education,
eventually taking their own lives.29
The effect of the prohibition is less clear to the
director, who, although admitting that his conscience is
troubled by the prohibition and the suicides,30 never explicitly
agrees with the stranger about the causal relationship between
the two. Perhaps the directors silence indicates his
acquiescence to the strangers contentions about the effects of
the prohibition. But more likely, the director believes
something else was the cause. The director deflects moral
responsibility for the deaths, first by saying it is the
government that enacted the prohibition,31 and then by blaming
foreign powers for politicizing the headscarf issue for the
purposes of polarizing and dividing Turkey.32 These redirections
suggest that the director feels that neither he nor the
prohibition was the cause of the suicides.
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Whatever the actual effects of the regulation are, Pamuk
uses the regulation itself as a means to discuss broader, more
complex problems afflicting the contemporary Turkish state.
Turkey is situated on the geopolitical border between East and
West, struggling to come to terms with influences seeping in
from different directions. One influence is that of Islam,
another that of secularism. The two conflict in many ways, only
one of which is clothing. Pamuk nonetheless uses that single,
specific clash of influences to illustrate and exemplify the
wide-ranging social discord currently troubling modern Turkey.
B. Margaret Atwoods The Handmaids Tale
1. Literary Analysis
Orhan Pamuk is not alone when using the regulation of
clothing to develop thematic elements. Other writers, such as
Margaret Atwood, have similarly employed the regulation of
clothing as a literary device. Indeed, in her 2004 review of
Snow in the New York Times, she noted that both sides of the
secularist-fundamentalist debate use the headscarf girls as
symbols of their respective positions.33 Furthermore, she reads
Snow as commenting upon the divided . . . Turkish soul.34 These
observations, when taken together, suggest that she recognizes
the literary value of Pamuks use of the regulation of
clothing.35
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Atwood herself employed the regulation of clothing as a
literary device in her 1986 novel, The Handmaids Tale.36 It
recounts the struggle of a woman in a society governed by
religious fundamentalists struggling to increase an alarmingly
low birthrate.37 In this society, called the Republic of Gilead,
fertile women known as handmaids serve infertile ones by
copulating with the latters husbands to conceive a child.38 If a
child results, the handmaid turns it over to her infertile
mistress, thereby saving the handmaid from becoming an unwoman
a woman forced to clean up toxic environmental and nuclear
disasters, and effectively sent to her death.39
Gileadean law regulates in detail the clothing worn by
handmaids. In particular, the rules require handmaids to wear
red gloves and red flat-heeled shoes, as well as red, ankle-
length, full dresses that cover the entire body.40 The only part
of the handmaids costume that is not red is a winged hat, which
is white.41
The handmaids clothing has much literary significance.
The color of the outfit, for instance, emphasizes and reinforces
the role of handmaids in Gileadean society. Offred, who is a
handmaid as well as the novels protagonist, remarks that
[e]verything [about the outfit] is red: the color of blood,
which defines us.42 Even handmaids umbrellas are red.43 Offreds
description, alluding to the imagery of menstruation as well as
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to general impressions of life and vitality,44 suggests that the
handmaids outfit is a metaphor for their singular, child-
bearing role in Gileadean society.
But that role is not sexual in the sensual and wanting
sense of the word. Offred wears flat-heeled shoes that save
the spine,45 whereas other women that Offred sees namely, some
female Japanese tourists visiting Gilead wear high-heeled
shoes that cause their backs [to] arch at the waist, thrusting
the buttocks out.46 The contrast of these two types of footwear
may illustrate the child-producing yet non-sexual role of
handmaids in Gileadean society. The relationships between types
of clothing, as well as the descriptions of clothing itself,
allow Atwood to comment upon the power of dress to reinforce
social roles.
The red dresses also suggest the lack of control that
handmaids have over themselves. Offred, for instance, frequently
remarks that suicide is one of the few ways available to her to
control her fate,47 and she notes the effect of the red dresses
on the handmaids individuality. When Offred sees another
handmaid, she describes her as having a shape like mine, a
nondescript woman,48 indicating that handmaids lack distinctive
characteristics an inherent aspect of individuality. Also,
when looking at the revealing clothes of the female Japanese
tourists mentioned above, Offred thought I used to dress like
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that. That was freedom.49 In this instance, Atwood may be
commenting upon the individuals use of clothing to define the
self and its abilities.
Scholars have expanded upon this idea. One of these
scholars, Professor Stephanie Hammer, believes that Offred is
making a mistake by equating the appearance of freedom with
freedom itself.50 Hammer argues that Atwood intended this mistake
to show that womens clothing even clothing like that of the
Japanese tourists imprisons rather than frees women.51 This
conclusion is bolstered by Atwoods lengthy and sexual
description of supposedly liberating short skirts, thin
stockings, and high-heeled shoes.52
The handmaids dresses demonstrate the handmaids lack of
control over themselves and also the control that men have over
women in Gileadean society. The leaders of Gilead are the
commanders, who are an exclusively male group that founded the
republic and made its rules. It is therefore men who imposed the
red dresses upon the handmaids. Indeed, early on, Offred
describes her dress as a yoke,53 suggesting that it is an agent
of oppression used by others, in this case, men.54
The clothing worn by Gileadean men, when contrasted with
the red dresses worn by handmaids, strengthens this conclusion.
Guardians of the Faith, for instance, wear military-style
uniforms, which Offred describes as green uniforms . . . with
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the crests on their shoulders and berets: two swords, crossed,
above a white triangle.55 The guardians wear these military-
style uniforms even though they are not real soldiers, 56
suggesting that the uniforms are more symbolic than functional.
Drawing upon the respect garnered by military uniforms, as well
as the authoritarian role they often play, Atwood shows the
primacy of men in Gileadean society through a description of
clothing.
The same is true of Atwoods description of the commanders.
Offreds commander wears a black uniform like that of a museum
guard, giving him the appearance of a midwestern bank
president.57 The overall appearance of the commander is one of
seniority, wisdom, and authority. Indeed, he looks over the
women of the household as if taking inventory, 58 implying both
his power over them and the objectification of women in Gilead.
Besides reinforcing the power differential between genders,
Gileadean clothing also underscores disparities in social class
within genders. Marthas, a class of women who are often regarded
as inferior to handmaids, wear dull green dresses with a bib
apron,59 indicating their role as housekeepers, not all-
important child-bearers. As for Gileadean men, the commanders
uniforms set them apart from and above guardians: the austere,
black uniforms of commanders engender more respect than the
somewhat comical uniforms donned by the guardians.
13
The regulation of clothing is but one of the ways Atwood
creates a full picture of the Gileadean social structure. The
rules of Gilead, when combined, serve to make docile, not just
women . . . but a whole social body. 60 The regulation of
clothing supports this goal. Gileadean men and women of every
rank wear specific uniforms that rigidify a social structure
united for a single and vital purpose.
2. A Brief History of the Regulation of Clothing in the
Massachusetts Bay Colony and
Its Relation to The Handmaids Tale
Legal restrictions on clothing fit into a larger legal
framework called sumptuary law. A sumptuary law is [any]
statute, ordinance, or regulation that limits the expenditures
that people can make for personal gratification or ostentatious
display.61 More generally, a sumptuary law is any law whose
purpose is to regulate conduct thought to be immoral. 62
Sumptuary laws consequently restrict clothing and also food,
alcohol, and other luxuries, as well as prostitution, gambling,
and drug use.63
America has a long tradition of employing sumptuary laws to
regulate clothing. The Massachusetts Bay Colony, for instance,
borrowing from earlier English tradition, enacted a variety of
sumptuary laws.64 Although clothed in moral language, the
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asserted purpose of these laws was to counteract the
interconnected evils of fashion and dressing above ones
social class.65
Some legislation was blatantly hierarchical. For example,
one law enacted in the Massachusetts Bay Colony used financial
disincentives to prevent lower income members of the colony from
wearing clothes generally associated with those of higher
incomes. The law divided the members of the colony into two
groups based on annual income. If those in the low income group
wore silver or gold accessories, such as lace or buttons, then
they would be assessed taxes as if they were in the high income
group. Because taxation in the colony was based upon the
familiar principle that those with higher annual incomes should
pay more in taxes, the law made the wearing of certain clothing
financially impracticable for the lower ranks of the colony.66
The long history of the regulation of clothing in the
Massachusetts Bay Colony may have resulted in Atwoods decision
to set The Handmaids Tale in Cambridge, Massachusetts, or at
least in her decision to incorporate such regulation into her
work. Harvard University itself, the scene of many of the events
in The Handmaids Tale, was founded by, and named for a resident
of, the Massachusetts Bay Colony.67 The ability of clothing to
reinforce social hierarchies is a major theme in The Handmaids
Tale,68 and the local history involving clothing regulations adds
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authenticity to her work. Atwood draws upon this history to add
a significant degree of verisimilitude to The Handmaids Tale.
III. THE REGULATION OF DRESS IN LAW
While authors have used clothing and its regulation to
develop thematic elements in literature, the question remains
whether their use of clothing finds parallels outside of the
fictional world. Sociological evidence reveals many such
parallels.69 Further, specific case studies demonstrate both the
accuracy of the generalizations found in this evidence, as well
as the realistic nature of the use of clothing by Pamuk and
Atwood in Snow and The Handmaids Tale.70
A. The Sociological and Communicative Role of Dress
Clothing is a means of communication, and like any form of
communication, clothing uses signs that represent something
else.71 An article of clothing may signal something rather
simple, or it may symbolize something complex and abstract.72 For
example, a soldiers uniform may indicate his membership in a
particular army, as during the American Civil War, when blue
uniforms signified membership in the Union Army while gray
uniforms membership in the Confederate Army. 73 But the soldiers
uniform may symbolize much more, such as a belief in
abolitionism or a willingness to preserve the union, on the one
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hand, or a commitment to states rights or a slave society, on
the other.74
Through the use of signs and symbols, clothing may
communicate any number of things.75 It often announces a persons
gender, age, or social class.76 It may also indicate a persons
occupation, origins, personality, opinions, tastes, or even
mood.77 And a single outfit may signal some or all of these
things. A pantsuit, for instance, may suggest that the wearer is
female, a businessperson, upper-middle class, or professional or
conservative. But these are merely a few of many possible
interpretations of the pantsuit.
Indeed, as with any form of communication, clothing is open
to interpretation, and the same article of clothing may mean
different things to different people.78 Sometimes, the wearer
intends to create this ambiguity, while other times, ambiguity
is wholly unintended. As an example of the former situation,
consider the clothing of some feminists in the 1970s who wore
clothing traditionally considered male.79 By choosing to wear
such clothing, these women intentionally created ambiguity for
the purpose of making others question conventional gender
norms.80
Alternatively, the wearer may not intend to create
ambiguity through his or her clothing, leading to unwanted
inferences by others. An extreme example involves the
17
questionable relationship between clothing and consent to sexual
activity.81 Specifically, a number of people believe that a
womans choice of clothing implies her consent to sexual
activity (although this belief is withering away in younger
generations).82 This inference takes on special significance in
the context of rape, where blame is sometimes placed on the
victim if she dressed provocatively, giving rise to oft-quoted
statement, she asked for it.83 In this instance, the intention-
interpretation dichotomy in clothing is both dangerous and
specious, yet as of the early 1990s, the law in most states
allowed the victims clothing and appearance prior to the rape
to be admitted in subsequent criminal proceedings as evidence of
her implied consent.84
Although the meaning conveyed by clothing is sometimes
unclear, clothing itself remains important to many people
precisely because of its ability to communicate information
about the self.85 Stated otherwise, a person may present his or
her identity to others through clothing.86 This holds true even
though some characteristics of identity are immutable, such as
sex and race.87 But clothing as well as other close analogues,
such as body art and hairstyle is a way for individuals to
manipulate the many aspects of their identities susceptible to
control.88 An African-American woman, for instance, may braid her
hair to signify her status as an African-American woman even
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though in some simplistic sense a mere showing of skin would
suffice for that purpose.89 Indeed, some scholars have lamented
the minimal legal protection afforded race- and gender-motivated
choices about clothing and appearance, compared to the
heightened judicial scrutiny applied to classifications
regarding the immutable properties of race and sex.90
Because of clothings ability to convey meaning, and
particularly because of its ability to define the self, it is
frequently used to demonstrate the wearers power.91 In this
context, power means the ability to influence the thoughts or
actions of others.92 A police officers uniform, for example,
militaristic in appearance, reflects the power that he or she
has over the policed.93 The uniform serves this purpose well
because few people would submit to the authority of a person
without one.94 This is illustrated by the findings of a
California police department that the number of assaults on
police officers declined after it reinstituted traditionally
styled, navy blue uniforms.95 Prior to the switch, the department
experimented with non-traditional uniforms comprising gray
slacks and a dark blue blazer.96 This experience reinforces
studies which find that people view those wearing traditional
police uniforms as more competent, helpful, honest, fast and
active compared with the blazer-donned police officers.97
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By contrast, consider the orange jumpsuits worn by many
prisoners. Besides serving as a deterrent to escape, they
subjugate the wearer to the control of prison officials because,
assuming clothing is one way to define the self, then removing
that method of self-definition helps impose a single, collective
identity on the prison population for the purpose of
discipline.98 In a similar fashion, some prison officials require
prisoners to wear pink, believing that it makes prisoners more
obedient and passive a belief supported by some psychological
evidence.99
In sum, the communicative role of clothing empowers a
person to define the self. But others may use to their advantage
the inherent power of clothing to shape identity. A person may
change his or her own appearance to demonstrate power or to
regulate the appearance of others to diminish or eliminate their
power. And because relying on appearance in social interactions
is inescapable,100 the regulation of clothing is an
exceptionally effective way to accomplish these goals.
B. Case Studies
Sociological conclusions about the role of clothing are
supported by a number of specific examples. While there are many
such examples, the educational and military contexts are good
starting points in the analysis because, in some respects, they
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represent opposite ends on the spectrum of formal clothing
regulation. School dress codes often provide significant
latitude to students, while military dress codes are much more
stringent. The penalties for disobedience also differ in
severity in each setting. But despite their differences, school
and military dress codes serve similar purposes, which are to
induce conformity, instill discipline, and promote and preserve
the power of those in charge.
1. School Dress Codes
Although out of favor for a number of years, school
uniforms have gained popularity since the mid-1990s, when
President Clinton began advocating them as a means for making
schools safer.101 His efforts had a significant effect.102
Nationwide, 25% or more of elementary schools and 10%-15% of
middle and high schools now require uniforms figures
representing a twofold increase in the prevalence of school
uniforms since 2000.103 Schools without mandatory uniforms still
regulate the clothing options of their students by proscribing
certain articles or styles.
i. Supporting Arguments
Increased interest in the regulation of clothing in the
educational context is traceable to a number of concerns.
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Proponents argue that school dress codes effectively address
these concerns. The justifications offered remain largely the
same whether the code specifies a particular uniform or merely
limits at the extremes the clothing options of students.104 In
short, proponents contend that dress codes reduce cost,
distractions, and violence, as well as diminish the importance
of socioeconomic background.
Proponents argue that dress codes requiring identical
uniforms eliminate the economic gap between students.105
Fashionable clothes are expensive, and generally only students
coming from higher income families can afford them.106 Allowing
fashionable clothes therefore reinforces class distinctions in
the classroom.107 However, uniforms help to remove such
distinctions because rich and poor wear the same outfits.108
A related argument in favor of uniforms is their low
cost.109 School officials usually choose inexpensive uniforms and
help cover the associated costs, especially for lower income
students.110 The cost savings are multiplied because students
need fewer uniforms than ordinary clothes, since there is little
or no need for variety.111 This cost argument in favor of
uniforms attracts the support of many parents because of the
high cost of currently fashionable clothes.112
A third argument in support of uniforms arises from the
function of schools as an important tool in the socialization
22
process.113 Schools integrate children into a single public
community, and uniforms diminish individuality.114 Inducing
conformity follows as a corollary.115 On a narrower level,
uniforms foster camaraderie among classmates, as well as school
unity.116
A fourth argument is that uniforms reduce gang violence a
position that has carried much weight since the 1980s when such
violence dramatically increased.117 Gangs frequently attach great
weight to symbols, such as the color or style of their clothing,
which serve as a means to identify fellow gang members, and
intimidate or warn the members of rival gangs. 118 By eliminating
these symbols, uniforms aim to reduce gang membership and the
associated violence, and to achieve greater discipline within
the student body.119
Dress codes requiring identical uniforms are not the only
way to combat gang violence. For instance, the Chicago Public
Schools Policy Manual provides:
Schools may also institute dress code policies that do
not require students to wear a specific uniform, but
that prohibit students from wearing certain items or
particular styles of attire and/or accessories. . . .
Dress codes are often designed to address gang-related
activities . . . . Students who wear clothing or
accessories that display affiliation with gangs or
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other criminally motivated organizations . . . may be
subject to discipline.120
Less restrictive dress codes such as this are aimed at reducing
gang violence while still providing students with some freedom
to choose their clothing.
Similarly, dress codes try to ensure modest dress. 121 An
illustrative policy is that of the school district in Iowa City,
Iowa, which prohibits the following:
Bare midriffs, chests, or torsos
Backless or strapless attire
Thin T-shirts worn over colored undergarments
Pants, slacks, or shorts worn below the hips.122
The ostensible purpose of such restrictions is to prevent
distractions among the students.123 But the lack of gender
neutrality in these policies belies this argument and reveals a
more nefarious and less noble purpose.124
ii. Opposing Arguments
Although support for dress codes has increased in recent
years among school officials and parents,125 opponents have
voiced a number of arguments against restrictions on clothing in
the nations schools. In particular, dress codes undermine broad
educational goals, reinforce traditional gender identities, and
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induce conformity within the student body while shoring up the
control of school officials.
In addition to the core curriculum, schools are responsible
for instilling larger social values, such as tolerance, respect
for others, critical thinking, and the value of public debate
and confrontation.126 But dress codes may hinder the learning of
these values.127 Proponents of dress codes readily admit that the
restrictions on dress serve to eliminate differences among
students.128 Yet the elimination of diversity here, with
respect to clothing and the beliefs and backgrounds it may
communicate promotes neither tolerance nor respect for the
differences in the student body.129
In so doing, uniforms ignore the pluralistic nature of our
society. Distinctions among socioeconomic class are an
undeniable feature of American life. Yet the benefits of
uniforms to reduce such distinctions inhere only as long as the
student remains a student. Upon graduation, formerly uniformed
students enter a world where class and race are too often
determinative of a persons achievement. Confronting the issues
of class and race at an early age in the educational setting
better prepares students for the realities they will face later
on in life.130 It is significant that the uniforms adopted are
frequently reminiscent of the outfits worn by students from
higher income backgrounds, e.g., blazers or jackets, ties, or
25
polo shirts, suggesting that students from lower class
backgrounds should conform to the standards of the higher
classes.
School dress codes also serve to reinforce traditional
gender norms. Although this was truer in the past, the gendered
nature of school dress codes has continuing vitality in an
analysis of modern polices.131 This history, although distant,
remains the foundation of current practices.
For male students, early uniforms embraced a militaristic
style.132 By calling upon shared, archetypical notions of
military discipline, school officials used uniforms to instill
discipline and mold young men into citizens.133 At the same time,
military-style uniforms also incorporate the traditional male
role as soldier and fighter.134
For female students, the role of dress codes has been more
complex.135 Accompanied by training in a variety of skills
falling under the term etiquette, early uniforms for female
students served a dual purpose.136 On the one hand, the uniforms
(and training in etiquette) led to the finished young woman
who exhibited proper manners, control of her body, and a finely
honed appearance.137 On the other hand, because of their
unrevealing and drab nature, uniforms encouraged the development
of traits generally considered masculine.138 Before the large
scale entry of women into the workplace, however, this latter
26
purpose of uniforms was rendered mostly irrelevant by
graduation, when women entered a world where they were expected
only to marry and rear children.139 Ultimately, only the
finished young woman remained.140
Although the prevalence of uniforms has diminished over the
long term, the gender-reinforcing role of school dress codes
remains. Recall the Iowa City dress code quoted above.141 Though
written in gender-neutral language, it is clearly directed
toward many of the clothing choices currently made by female
students. These restrictions reinforce ideas of female modesty
and chastity in opposition to the animal instincts of young
male students an argument similar to the ones set forth in
Snow and The Handmaids Tale.142
Further, the uniforms themselves, where required, remain
gendered. Codes requiring uniforms generally provide for
different male and female versions. While this presents little
controversy in most cases, it poses difficult questions when
transgendered or inter-sexed students are involved.143 And any
answers usually serve to further marginalize such students from
the mainstream.144
The gender implications of school uniforms, especially
those for female students, are compounded by their sexual
connotation in popular culture.145 The sexual undertone of school
uniforms is prevalent worldwide. For instance, it has gained
27
popularity in contemporary Japanese culture, where young women
frequently wear school uniforms outside of the educational
setting.146 Indeed, as of 1994:
As many as 10,000 schoolgirls in Tokyo are making
extra money . . . by posing for professional and
amateur pornographers, selling their sailor-style
school uniforms and underwear to sex shops, or working
as telephone sex-operators.147
America is no exception. For example, consider the overtly
sexual music video from 1999 featuring Britney Spears singing
the number-one hit . . . Baby One More Time in a hyper-sexual
school uniform.
In sum, school dress codes instill conformity and
discipline by reducing the differences among individuals. The
benefits of conformity and discipline inure most immediately to
school officials and parents, but also more remotely after
graduation to persons having the ability to exercise influence
over others. But the benefits of reinforcing traditional
conceptions of gender and race come at the expense of
individuality, the responsible questioning of authority, and the
preparation of students for life after school.
28
iii. Effectiveness of School Dress Codes
The jury is still out on whether school dress codes in
general, and uniforms in particular, are effective. One
scientist who has done a number of studies on the issue
concluded that uniforms had no effect on attendance, behavior,
or drug use.148 But another, smaller study conducted by another
scientist found opposite results: uniforms improve graduation
rates and lower suspension rates.149 Despite the inconclusive
nature of the statistical evidence, parents are decidedly in
favor of school uniforms,150 a tide of opinion suggesting that
the prevalence of school uniforms will increase in the future.
Indeed, presidential candidate and Senator Hillary Clinton
is picking up where her husband left off when it comes to
supporting school uniforms.151 In a recent campaign speech in
Iowa, Senator Clinton stated to a gathering of teachers that
school uniforms will allow students, girls in particular, to
focus on schools [sic], not on what youre wearing.152 And
former President Clinton once remarked that his support for
school uniforms largely originated from the then-First Lady.153
To the extent that they are effective, school uniforms are
only one tool to improve the educational process. They cannot
fully compensate for the shortcomings facing many schools.
Parental involvement, adequate funding, and an overall
commitment to learning likely outweigh the value of school
29
uniforms, but where these resources are lacking, uniforms may be
the next best thing.154
iv. Legal Challenges to School Dress Codes
In the midst of the debate over the advantages and
disadvantages of school dress codes, student-litigants have
brought legal action against school districts challenging the
regulation of dress in the educational setting. The courts have
confronted the issue on many occasions, sometimes overturning
the action of school officials but more often affirming such
action. The cases fitting into the latter category lend legal
and often constitutional legitimacy to the regulation of dress
in the educational setting.
Challenges to school dress codes are generally premised on
First Amendment grounds. For instance, in Tinker v. Des Moines
Independent Community School District (1969),155 the U.S. Supreme
Court held that school officials could not punish three students
for wearing black armbands in protest of the Vietnam War.156
According to the Court, the armbands were similar to pure
speech157 and thus entitled to protection under the First
Amendment.158
The Court took the opportunity to expound on the role of
clothing regulations in relation to the power of school
officials over the student body:
30
In our system, state-operated schools may not be
enclaves of totalitarianism. School officials do not
possess absolute authority over their students.
. . . [S]tudents may not be regarded as closed-circuit
recipients of only that which the State chooses to
communicate. They may not be confined to the
expression of those sentiments that are officially
approved. . . . [S]chool officials cannot suppress
expressions of feelings with which they do not wish
to contend.159
In a similar vein, the Court repudiated the idea that a state
may conduct its schools so as to produce a homogenous
people.160
Despite its thorough rejection of the prohibition on
armbands, the Tinker Court left the door open to other
regulations on dress in schools that would withstand judicial
review. For instance, the Court noted that Tinker was not a case
involving a regulation relating to the length of skirts or the
type of clothing, to hair style, or deportment [behavior].161
And more generally, Tinker did not involve a substantial
disruption of, or material interference with, school
activities.162
Subsequent lower federal courts have seized upon the
exceptions in Tinker to uphold school dress codes and
31
regulations. They have balanced the levels of disruption and
interference with the educational mission of the school.163
Jeglin v. San Jacinto Unified School District (1993)164 is
illustrative of this balancing process. The court affirmed a
dress code banning gang-related apparel after deferring to the
judgment of school officials who had found that gang-related
clothing was disruptive.165 The court was not phased by a minimal
showing of disruption.166
Additionally, courts have avoided Tinker balancing by
finding certain clothing non-expressive and therefore entitled
only to minimal protection. For example, in Bivens v.
Albuquerque Public Schools (1995),167 the U.S. District Court for
the District of New Mexico found that a students dress did not
entail protected speech as a threshold matter.168 School
officials had suspended the student for wearing sagging pants
in violation of the schools dress code.169 The court affirmed
the suspension, reasoning that onlookers were unlikely to
understand the students message.170 (The court had assumed that
the student had intended to convey one. 171)
Despite recognizing the relationship between the regulation
of dress and conformity within the student body, the courts have
mainly upheld school dress codes under constitutional attack.
They have found uniformity desirable in the many instances where
it aids the educational mission of the school. But their
32
conception of that mission is frequently too narrow, neglecting
to consider the broader goals of the educational institution.
2. The Military
i. Military Uniforms
The military is the paradigmatic instance of modern dress
regulation. This is so in part because the military is a total
institution in which many similarly situated individuals live
and work in a context almost wholly separated from mainstream
society.172 The military is a highly structured, hierarchical
environment, and most aspects of solders lives are formally
administered by a single line of authority.173
Uniforms are a hallmark of total institutions such as the
military.174 As a principal matter, uniforms help maintain the
institutional status quo.175 Standardized dress achieves the
overarching purposes of stability and rigidity in a number of
ways, and these means, when combined, reinforce a hierarchy that
is important to the institutions overall mission.
Accomplishing military objectives requires coordinated
group action. The complexity, magnitude, and gravity of many
such objectives necessitate a number of individuals working
together toward a common goal. A group mentality or a shared
attitude of teamwork is therefore important in the military
setting. Also important is the speed of military action. Many
33
military objectives require quick action on a moments notice.
Taking time to enforce orders lengthens military response time
and possibly diminishes the chances for success.
Military uniforms foster quick, collective action by
simultaneously revealing and concealing status. 176 Uniforms
reveal status by offering visual cues about rank that are
immediately identifiable.177 The ease with which one may
distinguish officer from enlisted soldier facilitates prompt
military action by reducing the time necessary to determine who
is in charge. Uniforms simultaneously conceal status,178 namely,
the status that a soldier possessed prior to joining the
military. By suppressing all indicia of former civilian status,
uniforms focus a soldier on his or her new mission within the
military.
Similarly, uniforms discourage individuality.179 Variation
is antithetical to group identity, and uniforms eliminate many
differences.180 The standardization that the army seeks is so
complete that the current army regulation on appearance and
uniform spans over 350 pages and includes over 100 figures. 181
The regulation is comprehensive and detailed. For example, it
instructs male soldiers how to trim and maintain their
mustaches.182 As a further example, the regulation provides the
distance in inches that the sleeves on various uniforms may be
rolled up and the circumstances under which they may rolled up
34
in the first place.183 The all-encompassing nature of the
regulation leaves little to the soldiers discretion, suggesting
the complete control that superiors have over uniform and
appearance.
Similar uniforms among soldiers of like rank foster a
collective mindset that is necessary to the overall mission of
the military. On this point, army regulations provide:
Soldiers must project a military image that leaves no
doubt that they live by a common military standard and
are responsible to military order and discipline. 184
In much the same way, the many insignia placed on the uniform
promote a group identity. Medals, badges, and patches, and
similar items placed on the uniform indicate the accomplishments
of the solider and also those of his or her unit.185 The
placement of group insignia on the individuals uniform fosters
his or her pride in and allegiance to the group.
Different uniforms among soldiers of different rank induce
conformity and reinforce the chain of command. The regulation of
nearly every aspect of military life instills unquestioning
obedience to commanding officers. The regulation of clothing is
merely one part of this scheme, but an important part
nonetheless, because of the power of clothing to demonstrate
individuality. Transferring the ability to define the self from
solider to commander gives the commander power over the solider.
35
The militarys choice to regulate clothing is a matter of
its effectiveness at promoting certain values and also of its
ease. The direct regulation of the soldiers thoughts is
difficult, if not impossible, but the regulation of their
clothing is easily enforced by simple visual inspection. The
slightest deviation from regulations is easily detectable and
may subject the violator to punishment.186
The military reinforces the importance of the uniform by
instilling pride in it and by imbuing it with the belief that it
encompasses core military values. Army regulations state this
proposition directly: Soldiers must take pride in their
appearance at all times, in or out of uniform, on and off
duty.187 Indeed, a disgrace to the uniform is a common
expression referring to someone whose conduct or beliefs
contravene fundamental military values. Similarly, soldiers pay
extraordinary attention to their uniforms, ensuring the absence
of any imperfection through meticulous care.188
Military uniforms naturally vary by occasion.189 While
pragmatic concerns such as camouflaging the soldier or
distinguishing him or her from enemy forces largely dictate
the character and appearance of some uniforms, other uniforms
are used simply for symbolic display.190 The symbolic use of the
military uniform is most prominent where color guards are
involved.191 Color guard members wear particularly expressive and
36
colorful uniforms for parades and other demonstrations. 192
Through the excessive nature of their uniforms, which would be
entirely inappropriate for any combat setting, the members of a
color guard convey military prowess, as well as the authority of
the commanding officers.193
Military forces not employing standard uniforms illustrate
the validity of some of the conclusions drawn thus far.194 The
lack of uniforms typifies guerilla forces, which do not wear
uniforms for a number of reasons: (1) guerilla forces often lack
the resources and infrastructure required to procure and
distribute regular uniforms; (2) uniforms identify guerillas
wishing to remain hidden from their enemies; and (3) uniforms
have undesirable ideological implications. 195 Focusing on the
third reason, guerillas often fight against a well-established
government, and standardized uniforms are a symbol of that
establishment.196 By refusing to wear uniforms, guerillas are in
part making a statement against that authority.197 At the same
time, a lack of discipline and an informal chain of command
characterize guerilla forces, suggesting that uniforms partly
serve the purpose of creating and maintaining discipline and
order. Notably, in the final stages of a successful guerilla
movement, the forces frequently begin to wear uniforms as
symbols of newly acquired legitimacy and power. 198
37
In closing, the military regulates clothing to further the
goals set by those in command. Military uniforms encourage
identification within a larger group that responds to orders
quickly and collectively. The regulation of clothing is
pervasive in this setting, and its effectiveness is demonstrated
by the fact that armies have worn uniforms for millennia.
ii. Judicial Recognition of the
Usefulness of Military Uniforms
The U.S. Supreme Court has recognized and endorsed the
ability of clothing regulation to reinforce the power structure
and chain of command in the military setting. In Goldman v.
Weinberger (1986),199 the Court rejected the Free Exercise claims
of a commissioned officer in the U.S. Air Force 200 who had been
ordered by his commanding officer to remove his yarmulke
pursuant to applicable dress code regulations.201 In rejecting
the officers claims, the Court deferred202 to military judgment:
[T]he traditional outfitting of personnel in
standardized uniforms encourages the subordination of
personal preferences and identities in favor of the
overall group mission. Uniforms encourage a sense of
hierarchical unity by tending to eliminate outward
individual distinctions except for those of rank.
. . . [T]he habit of immediate compliance with
38
military procedures and orders must be virtually
reflex with no time for debate or reflection. 203
In this and other similar passages, the Goldman Court repeatedly
emphasized the importance of the conformity achieved by military
uniforms.204
Viewed alongside Tinker (the 1969 black armband case
involving school dress codes),205 Goldman demonstrates the
Courts recognition that standardized clothing promotes the
interests of the collective at the individuals expense. This
result flows from the elimination of clothing as a means to
define the self. Tinker and especially Goldman further recognize
the ability of clothing to reinforce power hierarchies by
visually separating those in charge from those who are not.
IV. CONCLUSION
The regulation of clothing is a feature of both law and
literature. Novelists have used the regulation of clothing as a
vehicle for discussing issues of pressing social concern. The
incorporation of this regulation elevates literary works above
mere fiction, even where the novel takes places in an ostensibly
implausible dystopia. Real-life instances of the regulation of
clothing stop the reader from dismissing the work as mere
fiction, and instead force the reader to reexamine his or her
39
own world in light of the authors commentary on the power of
clothing.
Snow and The Handmaids Tale pose the question whether
clothing serves purposes other than simply protecting the body
from the elements and providing comfort. Pamuk and Atwood think
this the case, and sociological evidence and real-life examples
support their conclusion that those in power regulate and
manipulate clothing to their advantage. While the specifics may
vary, regimes regulate clothing to reinforce their power by
hampering individuality and by inducing conformity with the
mainstream and the conventional.
This remains true of the many informal regimes not
discussed in this paper. School and military dress codes are
extreme examples of the regulation of clothing in contemporary
American society. Much of the regulation, however, is more
subtle.
Clothing and appearance are often considered aspects of
personal liberty. But how much freedom do we really exercise
over these decisions? At work, where we spend much of our time,
employers generally impose some sort of clothing requirements.
Even if they do not, the norms within a profession likely
dictate the appropriate dress. When at home, we may have more
choice about what we wear, but the media, fashion, and style
influence that choice. Considering the many conceivable options,
40
rules (both formal and informal) circumscribe a rather limited
universe of choice about clothing. As long as we remain within
those boundaries, we are not ostracized by the group. But by
pushing against those boundaries, we not only make a fashion
statement but a statement against the established system.
41
Endnotes
1 Sandra Day OConnor, In Memoriam: William H. Rehnquist, 119
HARV. L. REV. 3, 4-5 (2005).
2 ORHAN PAMUK, SNOW (Maureen Freely trans., 2004) (2002).
3 Interview by Steve Inskeep with Orhan Pamuk, Orhan Pamuk
Discusses How Religious Fundamentalism Affects Society, on MORNING
EDITION, NATIONAL PUBLIC RADIO (Oct. 26, 2004).
4 Dan Bilefsky, How to Avoid Honor Killing in Turkey? Honor
Suicide, N.Y. TIMES, July 16, 2006, 1, at 3.
5 Liesl Schillinger, True Believers, N.Y. TIMES, Oct. 21, 2007,
7, at 1.
6 Michael McGaha, The Poetry of Defiance, L.A. TIMES, Aug. 15,
2004, pt. R, at 4.
7 Charles Matthews, Intrigue, Ideas Pile Up in Complex Layers of
Snow, TALLAHASSEE DEMOCRAT, Sept. 5, 2004, D, at 4.
8 Id.
9 Id.
10 Id.; see PAMUK, supra note 2, at 40.
11 Mathews, supra note 7.
12 See PAMUK, supra note 2, at 47 (Director: My child, Im a
Muslim. Im opposed to suicide.).
13 Mathews, supra note 7.
14 PAMUK, supra note 2, at 38-48.
42
15 Id.
16 Id.
17 The stranger cites the Koran, specifically, the thirty-first
verse of the chapter entitled Heavenly Light, which reads:
And say to the believing women that they cast down
their looks and guard their private parts and do not
display their ornaments except what appears thereof,
and let them wear their head-coverings over their
bosoms, and not display their ornaments except to
their husbands or their fathers, or the fathers of
their husbands, or their sons, or the sons of their
husbands, or their brothers, or their brothers sons,
or their sisters sons, or their women, or those whom
their right hands possess, or the male servants not
having need (of women), or the children who have not
attained knowledge of what is hidden of women; and let
them not strike their feet so that what they hide of
their ornaments may be known; and turn to Allah all of
you, O believers! so that you may be successful.
KORAN (M.H. Shakir trans., 1983), available at
http://quod.lib.umich.edu/k/koran/ (last visited Dec. 18,
2007).
18 PAMUK, supra note 2, at 40.
19 Id. at 42.
43
20 Id.
21 Id. at 45.
22 Id.
24 Id. at 42.
25 Id.
26 Id. at 44.
27 Karima Bennoune, Secularism and Human Rights: A Contextual
Analysis of Headscarves, Religious Expression, and Womens
Equality Under International Law, 45 COLUM. J. TRANSNATL L. 367,
369 (2007).
29 Id. at 43.
30 Id. at 44.
31 Id. at 40.
32 Id. at 43.
33 Margaret Atwood, Headscarves to Die for, N.Y. TIMES, Aug. 15,
2004, 7, at 1.
34 Id.
35 See id.
36 MARGARET ATWOOD, THE HANDMAIDS TALE 8 (Anchor Books 1998) (1986).
37 Madonne Miner, Trust Me: Reading the Romance Plot in
Margaret Atwoods The Handmaids Tale, 37 TWENTIETH CENTURY LIT.
148, 149 (1991).
44
38 Id.
39 Id.
40 ATWOOD, supra note 36, at 8.
41 Id.
42 Id.
43 Id. at 9.
44 ALISON LURIE, THE LANGUAGE OF CLOTHES 179-80 (1981).
46 Id. at 28.
47 See, e.g., id. at 209, 292.
48 Id. at 19 (emphasis added).
49 Id. at 28.
50 Stephanie Hammer, The World as It Will Be? Female Satire and
the Technology of Power in The Handmaid's Tale, 20 MODERN LANG.
STUD. 39, 43-44 (1990).
51 Id. at 44.
52 See id. at 43-44; see also ATWOOD, supra note 36, at 28.
54 See MERIAM-WEBSTERS ONLINE DICTIONARY, http://www.m-w.com/
(defining yoke, inter alia, as an oppressive agency).
56 Id.
57 Id. at 86.
58 Id.
45
59 Id. at 9.
60 Hammer, supra note 50, at 46.
61 BLACKS LAW DICTIONARY (8th ed. 2004).
62 Id.
63 Id.
64 ALAN HUNT, GOVERNANCE OF THE CONSUMING PASSIONS: A HISTORY OF SUMPTUARY LAW
38 (1996).
65 Id. at 39.
66 Id. The entire example is taken from Hunts work.
67 Harvard Univ., The Early History of Harvard University,
http://www.hno.harvard.edu/guide/intro/index.html (2005) (also
noting that the early curriculum at Harvard incorporated the
values of the colony).
68 See supra Part II.B.
69 See infra Parts III.A.
70 See infra Parts III.B.
71 NATHAN JOSEPH, UNIFORMS AND NONUNIFORMS: COMMUNICATION THROUGH CLOTHING 9
(1986).
72 Id.
73 Id. (using instead as an example redcoats and members of the
British Army).
74 See id. at 10 (discussing the swastika during World War II).
75 LURIE, supra note 44, at 3.
76 Id.
46
77 Id.
78 See id. at 9.
79 See DIANA CRANE, FASHION AND ITS SOCIAL AGENDAS: CLASS, GENDER, AND
IDENTITY IN CLOTHING 124 (2000).
80 See id.
81 See generally Kim K.P. Johnson et al., Survivors of Rape:
Functions and Implications of Dress in a Context of Coercive
Power, in APPEARANCE AND POWER 11-32 (Kim K.P. Johnson & Sharron J.
Lennon eds., 1999) (exploring the relationship between clothing
and consent to sexual activity).
82 Id. at 13.
83 Id.
84 Id. (citing Theresa L. Lennon et al., Is Clothing Probative of
Attitude or Intent? Implications for Rape and Sexual Harassment
Cases, 11 L. & INEQUALITY 391, 410-11 (1993)).
85 See Gowri Ramachandran, Freedom of Dress: States and Private
Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and
Piercing, 66 MD. L. REV. 11, 20 (2006).
86 Id. at 20-21.
87 Id.
88 Id.
89 Id. at 21.
90 See Ramachandran, supra note 85, at 21.
47
91 Introduction to APPEARANCE AND POWER, supra note 81, at 2 (stating
that a comprehensive review of over 100 studies revealed that
nearly half found that clothing communicates power).
92 Id.
93 Id.; see generally Malcolm Young, Dressed to Commune, Dressed
to Kill: Changing Police Imagery in England Wales, in APPEARANCE
AND POWER, supra note 81.
94 See JENNIFER CRAIK, UNIFORMS EXPOSED: FROM CONFORMITY TO TRANSGRESSION
121 (2005).
95 Id.
96 Id.
97 Id. (internal quotation omitted).
98 See Ramachandran, supra note 85, at 90; SUSAN B. KAISER, THE
SOCIAL PSYCHOLOGY OF CLOTHING 384 (2d ed. 1990).
99 Lee Hudson Teslik, Psychology: Pretty Prisons, NEWSWEEK, Dec.
11, 2006, Periscope, at 0.
100 APPEARANCE AND POWER, supra note 81, at 1.

101 Jennifer Weiss, Do Clothes Make the Student?, N.Y. TIMES, Sept.
17, 2006, 14NJ, at 1.
102 Id.
103 Id.
104 See Todd A. DeMitchell, School Uniforms and the Constitution:
Common Dress in an Uncommon Time, 156 ED. L. REP. 1, 2 (2001)
48
(noting distinction between codes requiring uniforms and codes
defin[ing] the universe of clothing options).
105 Dena M. Sarke, Note, Coed Naked Constitutional Law: The
Benefits and Harms of Uniform Dress Requirements in American
Public Schools, 78 B.U.L. REV. 153, 165 & n.115 (1998).
106 Id. at 165.
107 Id.
108 Id.
109 Id.
110 Sarke, supra note 105, at 165.
111 Id.
112 Id.
113 Ramachandran, supra note 85, at 79.
114 Id.
115 Id.
116 Christopher B. Gilbert, We Are What We Wear: Revisiting
Student Dress Codes, 1999 B.Y.U. EDUC. & L.J. 3, 4 (1999) (citing
Phoenix Elementary Sch. Dist. No. 1 v. Green, 943 P.2d 836
(Ariz. Ct. App. 1997)).
117 Id.
118 Alyson Ray, Note, A Nation of Robots? The Unconstitutionality
of Public School Uniforms, 28 J. MARSHALL L. REV. 645, 649-50
(1995).
119 Id.
49
120 CHICAGO PUBLIC SCH., POLICY MANUAL 5 (2007) [hereinafter CHICAGO
POLICY MANUAL], available at
http://policy.cps.k12.il.us/documents/705.5.pdf (last visited
Dec. 18, 2007).
121 Gilbert, supra note 116, at 4.
122 See Nw. Junior High. Sch., Newsletter (2007), available at
http://www.iowa-city.k12.ia.us/schools/NW/newsletters.html (last
visited Dec. 18, 2007).
123 See CHICAGO POLICY MANUAL, supra note 120 (providing that
students who dress in a manner that causes serious disruption
to the orderly educational process may be subject to discipline
. . .).
124 See infra text accompanying note 141.
125 CRAIK, supra note 94, at 57-58 (contrasting the recent rise of
dress codes in the United States with the long history of such
codes elsewhere, particularly Europe).
126 Ramachandran, supra note 85, at 79-80.

127 Id. at 80.
128 See supra Part III.B.1.i.
129 Ramachandran, supra note 85, at 79-80.
130 See id. at 79.
131 CRAIK, supra note 94, at 70.
132 Id. at 58.
133 Id.
50
134 Cf. id.
135 Id. at 65.
136 CRAIK, supra note 94, at 65.
137 Id.
138 Id.
139 Id.
140 Id.
141 See supra note 122 & accompanying text.
142 See supra note 22 & accompanying text (discussing the
strangers argument that headscarves prevent rape and
harassment).
143 See Emily Q. Shults, Sharply Drawn Lines: An Examination of
Title IX, Intersex, and Transgender, 12 CARDOZO J.L. & GENDER 337,
348-49 (2005).
144 See id.; see also Harper v. Edgewood Bd. of Educ., 655 F.
Supp. 1353 (S.D. Ohio 1987) (finding no constitutional violation
where school stopped two students from cross-dressing at prom
because school officials have the authority to teach community
values and promote discipline), cited in DeMitchell, supra note
104, n.19.
145 See CRAIK, supra note 94, at 65.
146 Id. at 77, 97 (Uniforms have become an integral prop in
licentiousness and sexual perversion.).
51
147 Id. at 97 (quoting Anon, Girls Just Want to Have Funds, WORLD
PRESS REV., Jan. 1994, at 24) (internal quotation omitted).
148 Weiss, supra note 101.
149 Id.
150 See id.
151 Will Okun, Op-Ed, A Uniform Solution?, N.Y. TIMES, Nov. 30,
2007, available at
http://kristof.blogs.nytimes.com/2007/11/30/a-uniform-solution/
(last visited Dec. 20, 2007); see supra notes 101-02 &
accompanying text (discussing former President Clintons support
of school uniforms).
152 Okun, supra note 151.
153 See id.
154 See id. (also observing that academic achievement is more
closely correlated with the schools location (e.g., in affluent
suburban areas) than with the schools requiring or not
requiring uniforms).
155 Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503
(1969); see generally NORMAN REDLICH ET AL., UNDERSTANDING CONSTITUTIONAL
LAW 634-35 (3d ed. 2005) (discussing Tinker). But see Erwin
Chemerinsky, Students Do Leave Their First Amendment Rights at
the Schoolhouse Gates: What's Left of Tinker?, 48 DRAKE L. REV.
527, 527-30 (2000) (contending that the Court has implicitly
overruled Tinker).
52
156 Tinker, 393 U.S. at 514.
157 Id. at 505 (internal quotation omitted).
158 Id. at 506.
159 Id. at 511 (quoting Burnside v. Byars, 363 F.2d 744, 749
(1966)).
160 Id. at 511 (quoting Meyer v. Nebraska, 262 U.S. 390, 402
(1923)) (internal quotation omitted).
161 Tinker, 393 U.S. at 507-08.
162 Id. at 514. But see Morse v. Frederick, 127 S. Ct. 2618
(2007) (rejecting a students free speech claim without finding
a disruption of, or interference with, school activities). Note,
however, that the Morse Court was careful to limit its holding
to speech advocating drug use, see id. at 2636 (Alito, J.,
concurring), and that the Court found the prevention thereof to
constitute an important . . . perhaps compelling interest, id.
at 2628 (majority opinion) (quoting Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646, 661 (1995)) (internal quotation omitted).

163 Ann Kordas, Note, Losing My Religion: Controlling Gang
Violence Through Limitations on Freedom of Expression, 80 B.U.L.
REV. 1451, 1464 (2000).
164 Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459
(C.D. Cal. 1993), cited in Sarke, supra note 105, at 161.
165 Sarke, supra note 105, at 161.
166 Id.
53
167 Bivens v. Albuquerque Public Sch., 899 F. Supp. 556
(D.N.M.1995), cited in DeMitchell, supra note 104, n.50 &
accompanying text.
168 DeMitchell, supra note 104, at 8-9.
169 Id.
170 Id.
171 Id.
172 KAISER, supra note 98, at 383 (providing other examples of
total institutions, such as prisons and religious convents).
173 Id. at 383-84.
174 Id. at 383.
175 Id.
176 See Nathan Joseph & Nicholas Alex, The Uniform: A
Sociological Perspective, 77 AM. J. SOC. 719, 722 (1972).
177 Id.
178 Id.
179 Id. at 723.

180 See id.
181 Army Reg. 670-1 (2005), available at
http://www.apd.army.mil/pdffiles/r670_1.pdf (last visited Dec.
18, 2007).
182 Id. fig. 1-1.
183 Id. 4-5(a).
184 Id. 1-9(a).
54
185 U.S. Army, Symbols & Insignia,
http://www.army.mil/symbols/Index.html (last visited Dec. 18,
2007).
186 See, e.g., Raderman v. Kaine, 411 F.2d 1102 (2d Cir. 1969)
(holding that the failure to give reservist credit for drills
was not an abuse of discretion where reservist did not comply
with army appearance standards).
187 Army Reg. 670-1 1-7(a). See supra note 181.
188 Id. 1-9(a)(1).
189 See generally id. (showing the various types of army
uniforms).
190 KAISER, supra note 98, at 363.
191 Id. at 364.
192 Id.
193 Id.
194 See JOSEPH, supra note 71, at 137.
195 Id. at 138.

196 See id. at 140.
197 See id.
198 Id. at 138; see also Joseph & Alex, supra note 176, at 722
(calling uniforms certificate[s] of legitimacy).
199 Goldman v. Weinberger, 475 U.S. 503 (1986).
200 Id. at 504.
201 Id. at 505.
55
202 Id. at 508 (quoting Rostker v. Goldberg, 453 U.S. 57, 70
(1981)).
203 Id. at 508 (quoting in part Chappell v. Wallace, 462 U.S.
296, 300(1983)) (internal quotation omitted) (emphasis added).
204 See, e.g., Goldman, 475 U.S. at 507 (The essence of military
service is the subordination of the desires and interests of
the individual to the needs of the service.) (quoting Orloff
v. Willoughby, 345 U.S. 83, 92 (1953)).
205 See supra note 155 & accompanying text (discussing Tinker).
56

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Gerasimow Prof.

Burton / Law & Lawyers in Literature

The Regulation of Clothing in Law and Literature: The

Authenticity of Snow and The Handmaids Tale

One day as we gathered in our conference room to shake

hands before going into the courtroom, he appeared

with four gold stripes on each sleeve of his robe. We

thought it must be a joke. Where did those come from,

we asked. Oh, I had the seamstress sew on one stripe

for every five years I have been on the Court, he

said. Just like the Lord Chancellor in Gilbert and

Sullivan. And the stripes stayed.1

Justice Sandra Day OConnor,

writing in memory of Chief Justice

At its core, clothing protects the human body from the

dangers of an inhospitable environment, providing both safety

since prehistoric times. And for nearly as long, it has served a

number of other purposes as well. Over the ages, various

cultures have attached social, economic, religious, and

political significance to articles of clothing.

Clothing has consequently become more than a means of

survival. It is now a way of identifying the self and of

communicating to others information about personal background

and attitude, as well as social standing, position, and rank. It

is effective at conveying this information because of its high

visibility and easy-to-recognize nature. A person may learn a

lot about another in one glance simply by examining his or her

Because of its effectiveness at defining the self and at

providing social signals, various regimes regulate clothing,

either requiring or prohibiting certain garments. By eliminating

the freedom to choose ones clothing, these regimes substitute

their ideas about clothing for those of the individual. And

because of the tendency of clothing to have symbolic meaning,

this substitution forces the regimes ideas onto the individual.

The power of clothing in society has not gone unnoticed in

literature. Authors have used the regulation of clothing to

raise and discuss social issues and as a device to establish

larger themes. Part II of this Paper discusses the regulation of

Nor has the power of clothing gone unnoticed at law. Many

clothing regulations have been codified, formally or otherwise.

Part III answers the question of whether regulations appearing

in literature have parallels in real life. Part III answers this

question in the affirmative, finding that many equivalents

exist. By examining the relevant sociological evidence in light

of two specific case studies namely, school dress codes and

military regulations governing uniform and appearance Part III

concludes that the literary depiction of clothing regulation is

II. THE REGULATION OF DRESS IN LITERATURE

The regulation of clothing is a common motif in literature.

Although the regulations themselves vary, they often help to

develop broader themes. Orhan Pamuks Snow and Margaret Atwoods

The Handmaids Tale provide good examples of the regulation of

clothing as a thematic device. Yet Pamuk and Atwood use the

regulation of clothing to develop different themes a

difference suggesting the flexible and comprehensive nature of

the power, meaning, and importance of clothing, both in

literature and in real life.

A. Orhan Pamuks Snow

In his 2002 novel Snow,2 Turkish author Orhan Pamuk examines

Islamic fundamentalism by chronicling a poet-journalists

investigation of a suicide epidemic among young women in Eastern

Turkey.4 Without explicitly taking sides, Pamuk creates realistic

characters to personify opposing positions in the debate.5 In so