A Hypothetical for Spring Break

Its Spring Break this week at Oregon State University hailing the end of winter term and the commencement of spring term.  In other places, you are just getting back from that crucial mini-break in the middle of the spring semester.  Just in case you are not ready to get back to the classroom, I thought I’d share a hypothetical I used this last term in my Civil Liberties course.

Droy, Pollick & DeLahoja v. City of Ithaca

Ithaca, NY like Boulder, CO hosts an active pedestrian mall though the population of the City of Ithaca—30,014—is dwarfed by Boulder’s 97,385.  Ithaca, located in central New York is often called ‘Gorge-ous’ for the famous gorges that run through the Cornell University campus.  Ithaca College sits at the other end of this small town.  The bitter cold winters and whipping winds coming off the gorges keep the pedestrian mall low-key throughout much of the year.  Summer brings out the people.  The presence of the Ivy League Cornell and its history of famous faculty—including John Cleese, Charles Evans Hughes, and Carl Sagan—lend an academic air to this upstate town.  The Moosewood Café began here and the recipes that make the famous vegetarian cookbook get their start in this natural foods restaurant.  Ithaca, though housed in NY state hosts the insular air of its New England neighbors.

 

In Ithaca, the challenge to a state law comes from two cadets from the police academy and one from the Cornell University campus police.[1]  All three were dismissed after successfully finishing the rigorous training academy because their tattoos were visible and did not meet standards of the Tattoo Review Committee.  None of the three wanted to have their tattoos removed.  The procedure is painful and expensive.  More importantly, the would-be officers claimed that the tattoos were personal expression.

 

The Ithaca police enacted the tattoo regulation in 2003 after undergoing an external review of its relationship and efficacy among the community.  The review included several of the larger police forces in the region.  The review revealed that the presence of visible tattoos, particularly ones associated with weaponry, goth culture, gang culture (Chinese characters were associated with the Tongs; skull and barbed wire tattoos were associated with biker and street gangs) decreased trust and respect for the police department.  Given these findings, the city required that visible tattoos be removed to maintain the reputation and image of the Ithaca and Cornell police force.  Additionally, the state police noted in their amicus brief that tattoos are too unique and prevent officers from doing good undercover work because they can be identified so easily.  This new ordinance was passed just before the cadets entered the program and there was no pre-screening requirement for entrance to the academy.

 

There is a bypass procedure.  Ithaca established a Tattoo Review Committee for each law enforcement agency.  Using a set of tattoos defined by the city council in conjunction with the experts from the external review as guides for determining the appropriateness of the tattoos, the review committee examines petitions by law enforcement officers and determines if the tattoo would be detrimental to the image of the police force.  In this case, Regina Li Droy has a tattoo of Chinese characters around her left ear.  The tattoo, Droy testifies in trial court, is the name of her grandmother and the tattoo signifies her respect for her ancestors—she listens to their teachings.  Charles Pollick has barbed wire tattoos around his biceps.  He got the tattoos after a friend of his captured while serving in Afghanistan.  The barbed wire represents the prison camp and his remembrance of his friend’s plight.  Both of these tattoos were denied exemptions from t he Ithaca Tattoo Review committee.  Finally, Daniella DeLahoja has a tribal tattoo on her shoulder and arm.  The tattoo she asked for was associated with several myths that represent power and wisdom.  The Cornell Tattoo Review Board required removal of this tattoo before employment could be offered because of its close resemblance to gang and prison tattoos.  Other tattoos were acceptable including an American bald eagle, a Tinkerbell tattoo, and a four-leaf clover.

 

The lower courts of New York were in agreement.  The state, local, and university police have a significant and compelling interest in limiting visible tattoos that might affect their ability to do their job.  The Court of Appeals (the highest court in New York) went further declared that the limiting the regulation to visible tattoos and providing for a review of such tattoos from a board of their peers is a minimal intrusion.  However, they expressed concerns that the external review did not always use a uniformed person when providing the stimulus for their interview questions.  In reviewing the report, the judges noted some anecdotal evidence that the presence of a uniform erased or minimized the tattoo’s deleterious effect. Howeer, the judges of the Court of Appeals denied that tattoos are a form of expression for the officers therefore the regulation passed the rational basis test.  As one judge noted, “A good amount of time these tattoos are not visible—during winter when long sleeves are worn or when the officer’s hair is down when off duty. To claim a violation of freedom of expression, expression must at least be visible to have any effect or coverage under the 1st Amendment.”  And, in a bit of off hand dicta, the opinion notes that the court is not even sure whose expression would be at issue, even if it were expression. Would it be expression of the artist who drew the tattoo or the bearer of the art?

 

The would-be officers appeal their losses to the United States Supreme Court.  The Court grants certiorari on the issues of the 1st Amendment.  The Court questions whether tattoos are speech. If so, what kind of speech, whose speech, and what level of protection?  No other issues will be addressed.  The Court has agreed that the parties have standing and the cases are justiciable.

 


[1] Cornell University is a hybrid university.  Some programs within the college are private (e.g. Liberal Arts) and others are part of the state university system (e.g. Restaurant and Hotel Management).

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