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A witness stand at a Santa Maria, Calif., courtroom.
Commentary

What Not To Wear...To Court

No shoes, no shirt, no justice!

Last year, I saw a young black man stopped at the doors of the Moultrie Courthouse in Washington, D.C. He was there to watch a trial but was told by a security officer that he couldn’t come in because he was wearing a tank top. I, a law student, was there to assist a public defender in court. When I saw the young man turned around, I wondered whose trial he might be missing — a friend, a family member, a parent?

The official code of conduct for the District of Columbia Courts states that “[p]ersons wearing inappropriate attire may be excluded from the courthouse and its courtrooms.” While it gives some examples of inappropriate attire – gang paraphernalia, items with obscene messages, “provocative clothing” — it ultimately leaves what’s “suitable” up to the sole discretion of courthouse security.

Nobody would think that such a dress code is the greatest injustice in our court system today. Indeed, the list of court practices that discriminate and disempower is long and mostly familiar. Still, courthouse dress codes are important to pay attention to because they limit who gets to be seen and heard in our criminal courts. And, understood as the partial courtroom closures that they are, they violate the Sixth Amendment right to a public trial, which requires that exclusion decisions be made by judges in courtrooms, not security on the steps.

By allowing courthouse security officers broad discretion to exclude people who aren’t dressed in a manner they deem appropriate, dress codes undermine popular control of the courts. If, as the Supreme Court has said, “[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power,” the judicial power should not pick and choose which members of the public will review them.

Especially when judgements regarding appropriate attire are so obviously susceptible to bias. A vague ban on “provocative” clothing, for example, almost encourages the policing of women’s attire. Dress codes that prohibit T-shirts and jeans can prove to be classist. Policies against “baggy” pants, durags and headscarves certainly create circumstances under which people of color, black people in particular, can be barred from courthouses.

In real life, this looks like a Georgia court barring women from entering the courthouse because they’re wearing tank tops at height of summer. Or a Tennessee judge, after seeing too many exposed arms, mandating that female attorneys wear jackets to court. Or a judge in Lehigh County, Pennsylvania, holding a young defendant in contempt of court and fining him $50 for his sagging pants.

And this isn’t just about what’s fair; it’s also about what’s legal. The Sixth Amendment guarantees people charged with crimes the right to a public trial. Courts across the country, from New York to Texas, have held that this right is violated when some people are kept out of the courtroom, even if the doors aren’t closed to everyone. And the Supreme Court said recently that judges “are obligated to take every reasonable measure to accommodate public attendance at criminal trials.”

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Also, the Sixth Amendment requires that before a courtroom is closed to the public in part or entirely, the judge find an overriding interest and that the closure is no broader than necessary. It also requires that judges consider reasonable alternatives, and make findings adequate to support the decision. To conduct a trial in a courthouse with a dress code — excluding members of the public without judicial scrutiny, as so many have — arguably violates the Sixth Amendment.

Before trial, defense attorneys should file a motion to remind judges what the Sixth Amendment requires. This motion can spell out simply what everyone knows is true — that dress codes keep people out of courtrooms without a judge’s decision. They can ask the judge to order the dress code rescinded before the trial takes place.

Because many court dress codes are actually written by judges in the first place, there’s nothing extraordinary about such a request. And because very few states require proof that someone has actually been turned away in order to find a violation of the public trial right, such a motion is easy to make. In fact, interested attorneys can turn to a recent Note in the Harvard Law Review, where I’ve included a readymade sample motion.

Defense attorneys, and their clients, have good reasons to file the motion. Even if it is denied, if an appellate court later takes their side, reversal of any conviction will be automatic. That’s rare in an era where more and more violations of the Constitution are considered “harmless error.”

But judges need not wait for such a motion. Again, the law requires that they themselves take “every reasonable measure to accommodate public attendance at trials.” That should include modifying the rules of the courthouses where they go to work each day to make sure that no one is arbitrarily barred. Of course, the policies created by judges are also subject to bias — they are, after all, only human — but their decisions are different from security officers in that they must be made on the record and supported by reason.

When it comes to criminal justice reform, the devil is in the details. And while unfair dress codes are far from the biggest impediments to justice in our courts, a campaign to rid our system of them is long overdue. Eliminating these rules will allow all citizens to enter the halls of justice with their dignity intact, and without the threat of being turned away because their attire doesn’t fit arbitrary standards for what’s presentable.

Jeff Campbell is a third-year law student at Harvard Law School. He plans to become a public defender. Recently, Campbell published a note in the Harvard Law Review exploring methods for defense attorneys to challenge courthouse dress codes.