What Can I Doooooo? with the ACLU: Ria Tabacco Mar on Student Dress Codes

proactively protect students' rights as they head back to school

Welcome to the fourth installment of our monthly interview series, What Can I Doooooo? with the ACLU. This month, I’m sharing a conversation with Ria Tabacco Mar that happened in front of a live audience of high school students from across the country who gathered in Washington, D.C. to participate in the ACLU’s National Advocacy Institute. (They asked lots of great questions at the end of our conversation, so be sure to stick around for those.) Ria Tabacco Mar is here to talk about gender, race, belonging and how all of that comes together in student dress codes – something the parents reading this might be thinking about as you start back-to-school shopping.   

Read all about it in the transcript below, which has been lightly edited for readability. If you’d rather to listen to our conversation and the full student Q&A, just press play:

Meet Ria Tabacco Mar

W. Kamau Bell: Hello, hello. Thank you for being here. You are in an immense position of privilege by having the ACLU bring you here to Washington, DC, where it's all happening. I think your presence here has changed democracy. I don't know if you've read the news recently, but there are major things happening in this country, and you're here. The ACLU brings you here, and part of that is getting to listen to amazing speakers and leaders and activists like the two who are gonna talk to you today. Are you excited about that? Are you interested in that? [Cheers] Okay, good. 

First up is the director of the ACLU's Women's Rights Project where she oversees the ACLU's women's rights litigation. She is a queer Black lawyer. Please get up for Ria Tabacco Mar.

I practiced your middle name so many times. I'm sorry for that. I messed it up there. 

Ria Tabacco Mar: You're not the first. 

WKB: I know, but I feel bad. I feel bad. I'm starting with a moment of honest shame before we get started. 

RTM: It's okay. I'm going to give you permission to forgive yourself. 

WKB: Okay, thank you. See, this is called coalition building, everybody. So, can you tell us about yourself? What do you do and how did you get into it?

RTM: My gosh, well, this work is personal for me. I mean, you just heard my bio. I have always existed kind of at the intersection of marginalized identities and even when I have been in rooms where maybe I feel like I'm among my people along one of those lines, I'm still the only in some other respect. So my first civil rights job out of law school, I worked at the NAACP Legal Defense Fund. This is, I'm not gonna say how old I was, it's a while ago. It's a while ago and you know, when I started there I was the only out lawyer. Not the case now, but was the case then and it was lonely. But I was part of this all-Black team. I have my Black crew, but I'm the only out lawyer. (It's more than a decade ago.) But then they poached me to come do the LGBT work at the ACLU, and it was great because now I had this all-queer team of lawyers. But I was the only Black lawyer. So you see how this goes, right? You see how this goes? 

WKB: In the Black space, you were the only out lawyer, and in the ACLU space, you were the only Black lawyer. But they were out lawyers, okay, yes. 

RTM: So it's lonely. It's lonely. And it's all about how can we make it less lonely? How can we shorten that time between being the first and the only and the next person? How can we make that gap smaller and smaller? That is really what has brought me to this work. I left the LGBT space. Now I'm in the women's rights space. These are all different components of my identity. I think they're all interconnected. The work is so interconnected. I think the work is richer for having been in these other spaces, because I've seen what other civil rights movements have seen, and we all need to be talking to each other. Our opponents are talking to each other. Our opponents are attacking us along all of these lines from the same place.

But our side is still siloed, right? Our side is fractured. We need to be talking to each other because we're all the same people in all these spaces. 

WKB: I feel like you just hit on something that may be the question for all of us. How can we be less lonely? I think that's a really powerful way to distill all the politics, all the social movements. Because really all these movements are trying to build connection, right? They're trying to build coalition. And, you know, we talk about reaching across the lines. We're not even trying to cross big lines here. A lot of us in this country have forgotten what community means. Like you're in your house and you go to your school or your job without thinking about your greater community. 

RTM: A thousand percent. The ACLU has been a wonderful community for me and I am excited by the energy in this room. I hope this week has been a wonderful community space for you all to be with like-minded people, to not be the only, right? Maybe some of you are coming from places where you feel a little bit like you're the only, maybe you're the only person who thinks the way you do? The only person who cares about the things you care about. I see some nods! So you will find your people, but how can we shorten that gap — getting from that place of loneliness to that place of community?

The Messages Dress Codes Send to Students

WKB: Can we talk about some of the cases that the ACLU has worked on recently around dress codes? Everybody here, if you go to school, do you have a school dress code? Do you know what your school dress code is? Are there things in your school dress code where you're like, that's … not great?

Okay, I was trying to find a good word that wasn't the profane word that was in my head. That's not super cool, keen, and awesome. There's a case, I think it's in North Carolina . . .

RTM: So I'll just back up and say, we do a lot of dress code work in the Women's Rights Project, and we do that because schools are places where we are teaching children and young people what is expected of them in society — what does it mean to be a citizen in our country — and children soak up those messages from a very, very young age. Everything that we do in schools is a choice, and it's communicating something. Dress codes, unfortunately, can often be the site where we are teaching students what it means to be appropriate, what it means to be a girl, what it means to be a boy, that those things, those parts of ourselves are relevant to how we learn. 

I said at the outset, this is personal for me. I still remember being in law school and being all dressed up, wearing my first suit that I ever owned and thinking I looked really sharp. I was going out there to interview for my first professional job and had someone be like, yeah, nice suit, but you'll never look really professional with your hair in dreadlocks. That moment for me was like all of my worst fears being verbalized. I'm thinking, she's the person who said it out loud to me, but my fear is like everybody else is thinking this, they're just not gonna say it to my face. Who I am is unacceptable.

What does it mean to look professional? It's all right there. It means white. It means man. If you're a Black woman, it means conforming, straightening your hair, taking all these steps to alter the chemical texture of my hair, the way it grows out of my head, to try and look more like somebody else to be professional.

When that happened to me, I was a law student. We represent kids as young as five and six. We represented a six-year-old boy who was turned away from first grade for wearing his hair in locs. Six years old. And if you think C.J. did not hear the message that was sent about who he is and whether that was acceptable, you're wrong. The message was received. Sometimes it's very obvious. 

I'd love to talk about this case we brought in North Carolina, because it's one of those times when the stereotypes were just really brought up to the surface. So this is a public charter school that required girls to wear skirts. Only girls had to wear skirts. And our client's mom asked the founder, “Hey, why can my daughter not wear pants to school?” And he said, “Well, to promote chivalry, because every girl is a fragile vessel.” That is what this gentleman said. [Audience laughs.] 

WKB: That didn't sound very fragile out there. I have three daughters. I think of them as a lot of things, but fragile is not one of them. 

RTM: All right, so this is resonating with people. This is resonating. But I wanna say, and we could spend the whole conversation in this case, and we won't, but I wanna say just a couple things. And one is, we're all having this reaction because it feels so outrageous. It feels like a throwback, right? We took this case all the way up to the US Supreme Court, and along the way we had some judges who really got it. One of those judges was a judge named Barbara Keenan, and she wrote this opinion saying, no, it's not 1821 or 1921, it's 2021. And there's a way in which that's true, because most of us kind of know we're not supposed to say these things out loud, like the things that Baker Mitchell said out loud. But again, these are the things that other people are thinking. They've just gotten the message they're not supposed to say them out loud. 

So this case was an extreme. This was a very obvious case of a dress code barrier, but what are most dress codes? You can't have bra straps showing, or you can't wear clothing that's distracting. Well, distracting to whom? Right, whose bodies can exist and occupy space? And why are we covering ourselves? To make somebody else more comfortable, so that somebody else is not going to be distracted to learn? And why, by the way, do we have so little faith in our fellow humans we think they're gonna be distracted by other people just existing and learning? [Audience snaps and applauds.]

WKB: I like how the snaps turned into a little bit of applause. Some people are like, I don't snap, I applaud! Yes, yes. I want to dig down a little bit. When somebody says you don't look professional or somebody says what you're wearing is distracting. How do you define those words? Those words could mean a lot of different things depending on who defines them. But really it matters who's in power, who's defining. I think it's important to say this, especially to you all, that when you hear those words, understand who's in power making the definitions. Sometimes those people even wrote the dictionary. So you might look at the dictionary, and it might say the same thing as your school dress code, but that doesn't mean you can't change the dictionary. Remember the young woman who changed the definition of racism in the Merriam-Webster dictionary? 

RTM: Well, I love this too, because you can flip the definition on someone else and sort of test it to see if it makes sense. I think about this a lot with hair because I have never chemically straightened my hair, and I will never chemically straighten my hair. Even if, at one point chemically, I straightened my hair, my hair is me. I have not always been comfortable in who I am, but my hair has always been me. The expectation that I should chemically alter the texture of my hair, the way that it grows out of my head, to show up in a professional environment – we test that against other people.

Would a white applicant for a job be expected to chemically alter the texture of their hair at great cost and potential risk to their health in order to show up in a professional space? That's an easy no. But when it comes to the natural texture of Black people's hair, somehow the rules are different. And that's how we test it. What would we say if this rule were being applied to someone else – that you have to cut or alter your hair or your skin, the way that you were born, to show up in this space? That cannot be what professional looks like.

Our children are listening. This is what kills me. We’re talking about young children. With our skirts case, when we started, our youngest client was going into kindergarten. She was five years old. She's in high school now. She wears pants. Spoiler, they all wear pants. We won. That's the good news. But even at five, she knew. She picked up on the message. So nobody was using the word “chivalry” to a five-year-old. Probably she didn't know what that word meant. But she knew that the message was that boys and girls are different. The boys are better. The boys can move freely in the classroom. The boys can sit crisscross applesauce and girls have to sit with their legs to the side. The boys can do cartwheels at recess and girls have to stand on the sideline chatting. She picked up on those messages. Children are absorbing everything that we are telling them, and that is precisely why the dress code exists. People often said, “What's the big deal about skirts? Did you really have to sue them over it?” Well, if the skirts are not a big deal, then why didn't they change the dress code when we asked them to? Because it is a big deal. It's communicating really important messages about what it means to be a student — what it means to be a boy, what it means to be a girl — and it's teaching us that those things are relevant in ways that they, frankly, should not be. 

WKB: And it really leans into the idea that a lot of people on certain sides of the political aisle fight against – gender is a construct. The school is constructing what they believe gender should be and not letting those kids construct it for themselves.

RTM: Exactly. We just want all of us to be free to write our own life story. And I think about these kids — five years old — literally being told how they can and cannot move their bodies because of the clothing that they have to wear. What could be more basic than that for a five-year-old? Telling them literally how they can sit, how they can exist in the space. 

WKB: Let's move on to another case. Tell us about this case in Mississippi. Is anybody here from Mississippi?

RTM:  We have been battling the Harrison County School District in Mississippi for some time now. And this story does not have a happy ending yet. This is very much a battle that we are still fighting. The judges in places like Mississippi come from the communities in which they serve, and these same messages have infiltrated judges. Judges are people, too. They're not somehow above all of us. 

We first got involved in Harrison County last year when we learned of a girl who is a transgender girl. She was told just days before graduation she could not walk at the ceremony unless she wore pants. Now, this young woman had lived out her entire high school career as the woman that she is. She had gone to prom. Her mother took her shopping for her dress months earlier. I'm sure many of you can relate to this. She had the shoes to match. It was real cute. It was white. She had the outfits all picked out. And she's told she cannot show up at graduation unless she wears pants. We went to court and we sought an order allowing her to walk at her graduation. The graduation is on Saturday. On Friday night at midnight, we found out we lost. She missed her graduation. You only graduate from high school once, right? She will never get that memory back. By the way, she wasn’t the only person. There were also cisgender girls who were pulled off the stage as they were about to walk for wearing pants. 

Fast forward to this year, we now are working with a young woman named Larissa. Larissa is an out lesbian. She showed up to take her yearbook portrait in a tux. She looked fantastic, by the way. We have her blog on our website, and I want you to check out this picture, because she looked really sharp. She had a tux. She had her afro. She has red tips on the afro. You want to see this picture.

So obviously, you know where this is going. Not only did they not print Larissa's picture in the yearbook, they did not mention her in the yearbook. She had academic honors. She was a member of the basketball team. None of it is there. It's like she did not exist. Like her time in high school was completely erased because she refused to dress as a girl for her yearbook portrait. Her mother found out this was gonna happen and paid for an ad in the yearbook with the picture they had taken. And the school took the picture out. This is what we are dealing with. It's sexism, and it's heteronormativity, and it's racism, because both of our clients are Black women. It's all of these things. 

We used the tools that we usually have at our disposal. We went to court and we lost. And that was heartbreaking, because how do you tell the client the night before, “It's not happening. You're going to miss your high school graduation.” But we are still writing the story. We filed a federal civil rights complaint with the Biden administration Department of Education. It is pending, and I am hopeful that we will be able to get the federal government to bring this school district into compliance. But it was not in time for the client who missed graduation. It was not in time for Larissa, who missed her yearbook. I am hoping it will be in time for next spring. But we'll see. Watch this space. 

WKB: And this is why we need more young folks to get into this kind of work. When we hear about these cases we think that’s horrible! And yet the law in that place did not think it was horrible. The fact that you could erase somebody from their whole high school experience, it's just cruel. Like not just saying, “We don't like the way you dress.” Now you don't exist to us. And now when that kid goes back to look at their high school yearbook, they're just not in it. 

RTM: No, they're just not in it. And this is when it comes back to. You might say, “Why was it so important to her to wear a tux?” But why was it so important to them that she not wear a tux? It was so challenging. It was so disruptive that she could not be present. Her very presence! Her name could not be printed. Forget the picture. Her name could not be printed because it was so disruptive to this patriarchal structure that the school was trying to impose on young people as it sends them out into the world. 

WKB: And it's a tux. I mean, it couldn't be fancier. You know what I mean? The idea that you can't wear a tux just shows that there's no logic in it at all. There's no thoughtful critique. They’re just saying, “This makes me uncomfortable. Instead of me dealing with my own feelings, you just can't do it. I don't have to deal with my feelings.” 

RTM: And they’re saying it makes me uncomfortable because it challenges the status quo. It challenges the status quo that has benefited some people at the expense of others. So it makes me uncomfortable because it threatens my own privilege. This is Larissa writing her own life story, and that threatens me as principal or superintendent. And I cannot tolerate that disruption to the power structure.

We Gotta Talk About Texas

WKB: When we talk about states in this country where they need the ACLU to swoop in and save the day, hopefully you're eventually gonna talk about Texas. 

RTM: We gotta talk about Texas. 

WKB: So first of all, I wanna be clear, I love Texas. There's lots of good cities in Texas. It's the Texas government that I'm not so in love with.

RTM:  Yeah, so we gotta talk about Texas. So our client, Genesis, lives in Spring Branch. It's hot in Texas. Actually, it's hot everywhere now in this country because of climate change, but that's a different podcast.

WKB: Which means it's really hot in Texas. 

RTM: It's really hot in Texas, and it's really hot if you are a cross country runner in Texas, which Genesis is. The cross country coach passes this rule. He says, “I don't want to see boobs, butts and bellies.” Now, I just want us to pause for a second and think about how disgusting it is for an adult to talk about young people's bodies in this way. Like, it's wildly inappropriate, actually. Okay, but that's not even where this story's going. 

So everybody has to be covered up. Genesis is running. It's 90 degrees. She notices a guy over there is running without a shirt on. Why can't I take my shirt off? I'm wearing a sports bra. Sports bras, by the way, speaking of what is professional. Summer Olympics just started. What do you think the US women's track and field team is competing in? 

WKB: Sports bras. 

RTM: Sports bras, right? So this is literally what elite athletes wear to perform.

WKB: It's in the name. They're bras designed for sports. 

RTM: They're bras designed for sports. So she takes her shirt off. And let me just say, right away now we have a problem. She's told to cover up. And she's asking questions like, “Why was I told to cover up, and this gentleman was not told to cover up?” Now we have an even bigger problem. Now she's passed over for athlete of the year. Now she's being retaliated against.

Because, again, it's that challenging of the power structure. Even asking the question, “Why is my body so unacceptable? And why are you, an adult man, uncomfortable with my body?” That, again, is not okay. But why does that mean that now I'm going to overheat in the Texas Sun while I'm running cross country and it's 90 degrees? 

We don't have a happy ending for Genesis yet either, though we have also filed a civil rights complaint on her behalf. We're talking about the energy, and the energy that's shifted. This is why it is so important to have a federal government that gets civil rights, because we don't always have other ways to fix it. We tried going to court in Mississippi; it didn't work. We tried sending a letter to the Spring Branch, Texas. There are parts of the country where the ACLU sends a letter, and people listen. There are a lot of parts of the country actually where that's the case and there are also parts of the country where that is not the case. Those are the places where we need to go in, and we need somebody who has that muscle of the federal government to say, “No, actually, this is a serious civil rights problem.” 

WKB: First of all, I literally had this same conversation with my nine-year-old daughter at the pool. She wanted to know how come boys and dads, as we talked about it, can go to the pool with no shirts on, but women and young girls have to cover up.  And I said, I don't know. As a parent I love being able to say I don't know, because it means that adults don't know everything. You think we're adults and we know everything, but that's not true. The thing that fundamentally doesn’t make sense is, like you said, that this boy can run around here with no shirt on, and I can't even just make myself slightly more comfortable.  

RTM: She can’t make herself slightly more comfortable, because that's gonna make a man uncomfortable. 

What Can I Doooooo?

WKB:  I'm sure many of you are focused on the presidential election that's happening, but I think there's so much to focus on below that. So much of American democracy is what's going on in your community and what's going on in your area. When you're able to vote, you can do that, but you can engage in advocacy work even if you're not old enough to vote. So this is the section where we wanna give everybody some homework. What can they doooooo?  

RTM: I'm so glad you asked.

(1) First of all, we have a blog, Four Things Public Schools Can and Can't Do When It Comes to Dress Codes. It’s just helpful because you want to understand what they can do. Rubber-soled shoes on PE Day, check. Formal attire for prom, check. White tops and dark bottoms, check. Skirts for girls only, no! We don't see a lot of that, but you know we do see a lot of still? Short hair for boys. Earrings and nail polish only for girls. No bra straps. No afros. All of these things! 

I know both of us are out of dress code here. 

WKB: We're getting expelled from school. 

RTM: All of these are things that we want schools to be on the lookout for.

(2) The other thing that we wanna give you is a letter that you can show to your principal or superintendent before the problem starts. 

What happens so often is we don't hear from students until something bad has already happened. They have already been suspended. They have already missed class time. It's three days out from graduation, and you just learned you’re not gonna be able to walk. And those are very, very hard deadlines to be up against. More importantly, the student has already experienced the trauma. There are probably other students who've experienced the trauma who don't know to contact the ACLU or don't have the bandwidth to reach out to the ACLU because they have a lot of other things on their plate.

What we want you to do is to go to your principal or superintendent ahead of time and say, “Hey, why don't you take a look at your dress code? And if you see these problems in it, let's fix this on the front end so that we don't have students being dress-coded.” Because what happens is missing graduation, missing prom, being pulled out of class, pulled off the cross-country team, pulled out of extracurriculars. 

By the way, even with a totally valid dress code, these are wildly inappropriate consequences for violating the dress code. I just want to say nobody should be missing class because of the dress code. But certainly nobody should be missing class because of a racist and sexist dress code. 

WKB: Yes, yes, thank you. You're saying there's a letter that these students can get access to that they can just, on the first day of school, take to the administration and be like, “We're doing this now.” As we said earlier, there's a lot of you out there who have dress codes at your school that you don't agree with. Instead of waiting for the problem, show up with the solution. Let's change the dress code. 

RTM: Trust that whatever dress code you have, we've seen it. I mean, we've represented a girl who was told to put band-aids over her nipples. A Native American boy told to cut his braids. A girl’s yearbook picture was censored – a box put over her chest – because you could see a tiny bit of cleavage. So whatever has happened to you, trust we've seen it. We've been there. We've written the letter. It's all been done before. I say that just so you know the bad guys are not that original. That's the good news. It's also part of the bad news. So trust that whatever you're experiencing, like, we have seen it before we got this.

America: Thumbs Up, Down, Middle?

WKB: Bad guys are so generic is what you're saying. I always ask everybody for an assessment of America, right now. How do you feel about it? Thumbs up, thumbs down, thumbs somewhere in the middle? Is it pulling up a little bit? 

RTM: It's pulling up! It's in the middle, but I’m pulling up! 

WKB: Okay, alright, shaky thumb! I've had a lot of that shaky thumb.

Click the link below to listen to the AMAZING Q&A we did with the students in attendance that day. Seriously. Click the link. You don’t want to miss it.

One last thing you can doooooo! If there’s a student in your life you might benefit from the information in this conversation, please forward it to them or their guardian. You never know who these resources might help!

You’re With Me

Some updates before you go:

August Office Hours: Resources for the 2024 Election

Paid subscribers, save the date! On Thursday August, 29th from 12 - 1pm PT we’re meeting on Zoom to share resources for the 2024 election. I’ll have some to offer, but I also want to hear from you. (If you’ve been to one of my previous office hours, you know we have some smart, plugged-in people in the room.) How have you been getting involved? What’s helped you have difficult conversations with the people in your world? See you then! If you aren’t already a paid subscriber, you can upgrade to get the zoom link and join our conversation:

The Next Generation of Olympians

Let’s keep channeling our inner Simone and going for more medals in crowdfunding. Check out the DonorsChoose projects below. They’re all in support of young athletes and they all have matching donations right now.

Coach Bethea’s students at Gibbes Middle School in Columbia, SC don’t have a weight room! They’re one of the only schools in the area without a strength training facility, but we can help change that before the new school. Donations to this campaign are currently being matched, so let’s goooooooo!

Lanier High School’s tennis team needs equipment. Let’s join Michael Jordan (he’s matching donations!) in helping these students in Jackson, MS go after their athletic goals.

The Roaring Tigers of Oklahoma City, OK are ready to play volleyball! Let’s get the students of Crutcho Public School the equipment they need to bump, set, and spike their way to greatness. These donations are matched, too.

If you find another project from DonorsChoose that you think other readers should know about, pop a link in the comments!