2016 Higher Achievement Moot Court Case Record

Higher Achievement Summer Academy

Moot Court Case Record

In the US Court of Appeals for the 8th Circuit

BN, DM, and CJ v. Little Rock School District
Statement of the Facts:

In the past twenty years, educators and mental health professionals have
learned a great deal about the challenges that young girls and women face in our
society. For example, studies have shown that sexual harassment is very frequent
in schoolseven at the middle level. Other research has shown that women and
even girls as young as six are often made to feel that their worth comes only from
being sexually appealing a phenomenon known as sexualization and that this
causes mental health problems such as eating disorders and depression. Finally,
researchers found evidence that these problems could interfere with girls education
and even cause their test scores to go down.

Studies also have shown that gang activity is on the rise in U.S. schools.

To address these problems, the Arkansas General Assembly passed House Bill
1936, An Act to Require School Districts to Prohibit the Wearing of Clothing that
Exposes Underwear, Buttocks, or the Breast of a Female.

The text of the legislation included a section on legislative intent, which

states the reasons the legislature passed the bill. The legislative intent section
reads as follows:

SECTION 1. Legislative intent.

(a) The General Assembly finds that the wearing of clothing that exposes
underwear, buttocks, or the breast of a female by students in the public
schools often preoccupies and distracts students from their major purpose for
being in school, that of becoming educated in math, science, English, history,
and other subjects.

(b) The General Assembly further finds that student competition over the
manner in which clothing is worn could lead to violence and injuries during
school hours.

(c) The General Assembly further finds that, as part of their preparation for
students to enter the workforce, public schools should encourage and train
students to dress in a manner that would be acceptable in the workplace.

(d) The General Assembly finds that prohibiting students from wearing, while
on the grounds of a public school during the regular school day and at

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school-sponsored activities and events, clothing that exposes underwear,

buttocks, or the breast of a female will prevent disruptions in the learning
environment, advance the education of students, enhance the preparation of
students to enter the workforce, and make disruptive incidents of violence
less likely to occur.

After HB 1936 became law, the Little Rock, Arkansas School District (LRSD)
was required to create a dress code for all of its students. Lawyers for LRSD studied
the law and explained to school administrators that the requirement that buttocks
and underwear be covered applies to boys and girls but that the requirement to
cover the breast applies only to girls.

LRSD created the following dress code:

A: Dress Restrictions
(1)No student may expose any part of their underwear or bra at any
time on school grounds;
(2)In order to ensure no female student exposes any part of the
cleavage between breasts, female students must wear shirts
that cover the collarbone;
(3)Female students shall wear a bra or undershirt at all times;
(4)The following types of clothing are prohibited:
a. Pants made of stretch materials, including leggings, that
may reveal underwear lines;
b. Pants, shorts, or skirts that, when the students arms are
down at his or her sides, do not reach the tips of his or her
fingers;
c. Pants or shorts that are tight enough to show the curves of
hips and buttocks, unless worn with a shirt with a hem that
reaches the tips of the fingers;
d. Shirts with a strap or sleeve narrower than three inches;
e. Hats, when inside school buildings;
f. Hoodies or other clothing that can cover the face or head;
g. Pants that are loose enough to expose underwear, unless a
belt is worn to ensure underwear is not exposed.
(5)Girls may wear pants, shorts, skorts, skirts, or dresses with hems
below the students fingertips;
(6)Boys may wear pants or shorts with hems below the students
fingertips.

B: Discipline
(1)Students who violate the Dress Code may be asked to leave
school grounds to change attire;
(2)Principals are authorized to provide alternative clothing and
require students to wear it for the remainder of the school day;
(3)Students who violate the dress code on more than three
occasions may be subject to suspension; and

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(4)Dress code violations will appear on a students disciplinary

record.

BN, DM, and CJ are students at Henderson Middle School, home of the Mighty
Mustangs. After LRSD instituted the new dress code, Hendersons principal, Doreen
Jenkins, sent a letter to every family in the school. She included HB 1936s
Legislative Intent and the text of the dress code. She also asked parents to talk
about the dress code with their children and explain to them that the dress code is a
reflection of The Henderson Middle School Mighty Mustangs motto: modesty, merit,
and morality.

Principal Jenkins also held an all-school assembly where she explained the
dress code. When she asked whether there were any questions or comments, many
students spoke up. Their comments included:

BN, a 7th-grade girl, stated that the dress code treats girls like our bodies are
too dirty to be seen. She received a standing ovation from many of her
peers, though some booed her.
DM, an 8th-grade boy, said I dont know why you think I cant do math if
theres a bra strap in the room. Do you think boys are all perverts? Several
students cheered. One student who shouted hell yeah, we are, causing
many of his friends to laugh and cheer, was told to leave the assembly.

DM also said you think Im a gangster if I wear a hoodie? Thats bull----!

The students cheered even louder. DM was asked to leave the assembly for
swearing.
One girl stated that she had no shirts that covered her collarbones, although
none exposed her breasts in any way. She asked does this mean I have to
buy all new clothes? Thats completely unfair! Many girls in the audience
clapped and nodded. A few called out me too and what she said!
One girl stated that Harassment at Henderson makes girls feel like objects.
She stated that she was tired of the constant staring, hooting, and grabbing
that she claimed happened in the hallways every day, and that she hoped the
dress code would get boys minds off of our bodies. Several students
clapped when she spoke, though some booed.

Many parents wrote to Jenkins to express their support for the dress code.
One parent, who was also a minister at one of Little Rocks largest churches, wrote
that he was pleased to see that at Henderson Middle School, our kids can be kids
not miniature adults or sex objects.

Others expressed concerns, however. In fact, a letter signed by over 100

parents stated that the dress code sends a negative message that girls bodies are
shameful and boys minds are dirty.

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A group of mothers conducted a research trip to a shopping mall, where

they attempted to buy girls shirts that covered the collarbone or were long enough
to wear with leggings and still comply with the dress code. They wrote Jenkins and
the LRSD school superintendent a letter stating that even if we could afford to
replace our daughters clothes, it would be impossible to find replacements that are
permitted under the new dress code. Neither Jenkins nor LRSD responded to this
complaint.

BN:
At first, BN attempted to follow the dress code even though she and her
parents disagreed with it. When she discovered that none of her shirts fully covered
her collarbone, she started wearing her brothers t-shirts to school. Her brother
teased her about it, saying that BNs body couldnt distract anyone. BN wanted to
wear her leggings, which she found very comfortable, but could not find any shirts
long enough to meet dress code requirements. Instead, she wore jeans or shorts
every day.

However, she soon noticed that the school was not treating all students
equally. For example, although boys frequently wore pants that exposed the tops of
their boxer shorts or did not reach their fingertips, she never saw a boy get dress
coded for it. Sometimes boys would be asked to pull up their pants but that was it.

Meanwhile, it seemed like girls were being sent to the principals office all of
the time. Principal Jenkins kept several baggy t-shirts and long gym shorts in her
office and forced girls who violated dress code to wear them. The shirts all said
Dress Code Violation in large red letters.

BN asked her friends if they had noticed that more girls than boys were
getting dress coded. They said that the situation was even worse than that: mostly
girls who were very physically mature and developed or heavy were being
disciplined. Very slim girls and those without adult hips or breasts, on the other
hand, were regularly seen wearing leggings or with exposed collarbonesand no
one did anything.

An outstanding student who had won the Citywide Science Olympics, BN

decided not to rely only on what she heard from her friendsshe wanted real
research. She created an internet-based multiple-choice survey asking students
their gender; whether they had been dress coded; for which violation; whether their
body type was slim, athletic, curvy, or heavy; and what the discipline had been.
She sent it to all of her friends and asked them to share it. BNs science teacher,
impressed that the girl was showing initiative, encouraged students to use his
classroom computer to fill out the survey.

The survey responses backed up what BNs friends had told her: according to
the surveys, over 75% of dress code discipline cases at Henderson were girls who
violated the rule against form-fitting pants or showing collarbones. Over 80% of
the girls who reported being suspended described themselves as curvy or heavy.

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BN was furious. She contacted a reporter at the Arkansas Democrat-Gazette

newspaper and asked her to investigate unfair dress code practices in Little Rock
schools. BN shared a link to the survey and told the reporter she could use and
share it for her research.

On April 15, 2014, BN went to school wearing a scoop-necked t-shirt that

exposed her collarbone and two inches of skin below it. She had written
#IamNotADistraction in Sharpie marker on her collarbone area. Principal Jenkins
stopped BN in the hallway, brought her to the office, and required her to change
into the dress code violator t-shirt.

The next day, BN again wore a shirt that exposed her collarbone and the
hashtag on her skin. Principal Jenkins again forced her to change. The principal
also called BNs mother and warned her that BN would be suspended if there was a
third violation. BNs mother came into school and defended BN, saying that a 7 th-
grade girls collarbone was not a distraction and that she was proud of BN for
standing up for what was right. Principal Jenkins said that she had no problem with
the hashtags message, but that BN would have to cover her skin and display the
message on a T-shirt or some other way.

The third time BN appeared with a scoop neck shirt and the hashtag, BN was
suspended for three weeks.

DM:
Before the dress code went into effect, DM wore his Memphis Grizzlies logo
hoodie several days per week. He never wore baggy pants that show the tops of his
underwear, but he didnt see why anyone should care whether someone else did.
Because he was hoping to win a scholarship to a top high school and didnt want a
discipline infraction on his record, DM at first did his best to follow the dress code.

However, after BNs survey went around, DM started noticing something:

boys were being dress coded for wearing hoodies but girls were getting away with
wearing them. The girl who sat in front of him in social studies class wore a pink
zip-front hoodie a few times and no one said anything. But DM knew some boys
were being asked to remove their hoodies.

He decided to wear the Memphis Grizzlies hoodie to school in order to find

out if his suspicion was true. Sure enough, he was told to take it off, and was given
a warning that three infractions would result in suspension. The next day, the girl
in social studies was wearing her hoodie againbut no one said anything.

DM asked BN if he could see the results of her survey. BN had gotten only six
responses from students who had been dress coded for wearing hoodies. Five were
from boys.

DM came to school in his hoodie again. He had written #IamNotaPredator on

the hoodie in white electrical tape. Principal Jenkins confiscated the hoodie, called

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DMs mother, and put him in detention. She returned the hoodie after detention.

DM wore it again the next day. Principal Jenkins suspended him for three
weeks.

CJ:

CJ, an 8th-grader, was known as a boy in elementary school. Starting in 6 th

grade CJ started preferring the pronouns they, them, and their rather than he, him,
or his. They explained to their parents that they didnt feel like they were a girl or a
boy, just a person. CJ sometimes wore skirts or dresses to school and sometimes
wore pants or shorts. CJs parents were supportive, as were CJs teachersat first.

After the dress code came out, CJ measured their skirts and was relieved to
see that the hems were lower than CJs fingertips.

Not long after DMs suspension, CJ wore a blue striped skirt to school. The
skirt was the proper dress code length. A substitute teacher was teaching CJs
math class that day. The teacher looked at CJs namea traditionally male name
and their outfit. The teacher asked what are you doing in that skirt, young man?
CJ froze, unsure of what to say. The teacher sent them to the principal.

Principal Jenkins had always treated CJ well. However, she explained that the
LRSDs dress code requires boys to wear pants or shorts, and only allows skirts or
dresses for girls. CJ told Jenkins: Im a person, not a girl or a boy. There is nothing
wrong with me. My mom says god made me beautiful just as I am. You cant take
that away.

Principal Jenkins gave CJ gym shorts with the words dress code violator
written on them, and sent CJ back to class.

The next day, CJ wore another skirtalso appropriate length for dress code.
CJ had written #IamNotaFreak on their thigh. Principal Jenkins again forced CJ to
change into a pair of dress code violator shorts. When CJ returned to class, a fellow
student called CJ a stupid queer and said CJ should wear boys clothes or quit
Henderson and go to ballet school. That student was not disciplined.

CJ returned in a skirt the next day, and was suspended for three weeks.

Students at Henderson protested in support of BN, DM, and CJ. They hung
posters reading #IAmNotADistraction #IAmNotAPredator and #IAmNotAFreak in the
school hallways. School staff removed the posters, but no students were punished.
Some students also wrote the hashtags on their skin or clothes.

The Arkansas Democrat-Gazette reporter did a feature-length story about the

students at Henderson. The newspaper was flooded with letters to the editor from
families all over Arkansas whose children had been disciplined under the new school

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dress codes. The Democrat-Gazette shared BNs survey on its website, and over
50,000 students responded. The results of the survey were similar to what BN had
found at Henderson: the dress codes were overwhelmingly used to discipline girls;
heavy or curvy girls were more likely to be disciplined; and mostly boys were
disciplined for wearing hoodies.

The Lawsuit:

BN, DM, and CJ all challenged their suspensions in the United States District
Court for the Eastern District of Arkansas. They argued that the LRDS dress code
discriminated based on gender, because:
(1) It is based on stereotypes of boys as predators who will treat girls as sex
objects if they are not covered up and who are likely to be in gangs;
(2) It is enforced in a way that burdens girls moreparticularly girls who have
more adult female figures;
(3) It sends a message that girls bodies are dirty and sexual; and

(4) It sets strict male and female roles that discriminate against students who do
not fall into one category or another.

For these reasons, the students claimed that the dress code violated the
Equal Protection Clause of the 14th Amendment.

The students also claimed that the dress code violated Title IX, a law that
prohibits sex discrimination in schools. In particular, they stated that the dress code
damaged the educational environment by requiring girls to spend time going to the
principal or being punished and spend money on new clothes rather than
extracurricular activities. They also said the dress code discriminated against
transgender and gender-nonconforming students.

At the trial, they introduced the web-based survey results as evidence that
the dress code was discriminatory. They also introduced evidence from around the
country that dress codes are increasingly seen as sexist and evidence that some
schools were doing away with gendered dress codes.

LRSD argued that:

(1) Because all students must wear modest clothes, the dress code is neutral
and not discriminatory;
(2) The dress code serves several important government interests, including:
o protecting girls from unhealthy sexualization;
o protecting all students from sexual harassment;
o eliminating clothing that can be associated with violent gangs; and
o preparing students for their futures by requiring them to dress in a
manner that would be acceptable in a workplace;
and

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(3) The dress code fulfills the school districts obligation Under Title IX to take
steps to eliminate sexual violence and harassment.
At trial, LSRD introduced evidence that both sexual harassment and gang
violence are common and increasing in Americas schools and that sexualization
interferes with girls educational opportunities.
LRSD also said that the court should not take the web survey into account
because there was no way to determine whether the 50,000 responses accurately
reflected the experiences of the states 476,000 students, and because raw
statistical data is insufficient to prove intentional discrimination.

The District Court Decision

The United States District Court for the Eastern District of Arkansas concluded
that the dress code did not violate ruled in favor of LRSD.

BN, DM, and CJ appealed their case to the United States Court of Appeals for
the 8th Circuit.