Last week Cocoa, a city in Florida, enacted a ban on ‘baggy pants’. The ban goes into effect in January of 2013 and already there are concerns that the law will be used discriminatorily. This is not the first time the ‘baggy pants’ controversy has reared its head. And, back in 2008, while I was teaching Civil Liberties I utilized the issue as the hypothetical for my moot court simulation. Given Cocoa’s new law, I thought it might be useful for me to put the hypothetical up for use in teaching this term. I deliberately played up the possibility of racism in the passage and the enforcement of the ban. My apologies to the Minnesotans for using the Mall of America, but it’s a foreign concept to my Oregonian students. Statistics are from 2008.
Robinson v. Stubbing, Councilman of Bloomington, MN
Bloomington, Minnesota is a mid-sized suburban town located about half way between the twin cities of Minneapolis and St. Paul. It has a population of about 85,000. The population is almost split between male and female (41 and 44 thousand respectively). A little over 83,000 members of the community classify themselves as one race, and 75,000 are White. About 4,000 people are Asian or Pacific Islander, and almost 3,000 are Black. The median age is 40 years. There are over 18.000 children 18 or under living in the community. Normally, a city like Bloomington would escape notice and wouldn’t generate much in the way of tourism dollars; however, the city limits of Bloomington contain the quintessential mall experience: The Mall of America.
The Mall of America is the nation’s largest indoor shopping venue. It houses more than 500 stores and is roughly the size of several national league ballparks combined. The clientele of the mall is diverse thanks to the overwhelming size of the mall and the variety of stores, attractions, and food venues and the proximity to both Minneapolis and Chicago. During long Midwest winters, the Mall offers a warm and hospitable respite for Minnesotans, Iowans, Illini, and South Dakotans from the cold. Inside there is a Dinosaur Walk Museum, and underground Aquarium and a park to entertain children. There is an indoor miniature golf course, a flight simulator, and an indoor NASCAR stock car racing competition track. The Mall of America sells itself as a family attraction as well as a shopping “Mecca”.
Since 2005, there have been several similar accidents in the Mall involving young male shoppers. The most serious occurred in May 2008; a youth, aged 12, was caught in the escalator. More specifically, his pants were caught in the mechanism and he was badly hurt before he could be freed. This was the fourth such incident since tweens and teens starting wearing the saggy pants style popularized in hip hop videos. Other similar incidents have occurred. Six reports have been filed with mall security when young males have tripped after their pants have suddenly fallen down around their ankles. In one incident, the young man tripped and fell into an elderly woman in a wheelchair; while the woman escaped with only a broken pair of glasses and some embarrassment, the potential for more serious harm was noted. There have also been two fender-benders in the parking lots due to young men stopping suddenly while crossing traffic to pick up their pants from around their ankles.
Additionally, the managers of the Mall have fielded a variety of complaints about conduct in the Mall. Over the past year and a half, the bulk of the complaints have come from parents concerned about the exposure of their younger children to what many called “indecent exposure” or “lewd behavior”. These complaints refer to the visibility of the underwear and buttocks of kids wearing their pants several sizes too large.
Concerned for the safety of their patrons and the general family friendly atmosphere, the Mall asked the city council to issue a ban on this style of pants. The city council debated the merits of the ordinance. Of the nine members of the council, seven spoke out in favor of the citywide ban. Councilwoman Braun noted that the “so called fashion began in the prison population. Prisoners are not issued belts for fear of beatings or hangings, so their pants sag. This is not fashion that is appropriate for a family community.” Another councilman, Peyton Von Stubbing agreed. “We have to consider the financial impact this style has on our community. This type of dress is associated with gangs and deters families from spending money in our community out of fear.” To back up his allegations, Stubbing produced several of the complaints filed at the Mall Managers’ office; at least three noted the presence of gangs and fear for safety within the Mall.
Councilwoman Annie Kinsella disagreed. “It’s simply a style of dress and its beyond the scope of our authority to tell people how to dress. It’s a matter of expression.”
A local member of the community and a retired prison guard offered his thoughts when the floor was opened to citizen’s views. “Prisoners, Black prisoners, used the bagginess of their clothing to conceal weapons. These people are a menace to society.” Local teens also expressed themselves to the Council. The high school football coach disagreed. His players, he said, liked to wear the baggy pants because they think it looks cool and it’s comfortable.
“Comfort,” shot back Councilwoman Braun, “can be had without revealing your underwear or buttocks to the world. As for expression, what type of message does a dress style convey beyond sloth and slovenliness.”
In the end the Council agreed that the type of dress discussed was not acceptable in their family community. The final ordinance banned “oversized clothing including bagging or slouching pants or jeans.” Bagging or slouching was defined as “dipping below the waist to show either the buttocks or the undergarments.” Tickets could be issued for wearing the style. Fines ranged between $50 for a first offense to $500 for a third or more violation.
The ban went into effect immediately and the next weekend several children were issued tickets on the grounds of the Mall. This practice continued for several months. The city records indicate that most, if not all, of the tickets were handed out to young men.
Around the winter holidays Denzel Robinson, made a trip to the mall with his sister and aunt. He was ticketed for wearing his pants too low. He brought the ticket home to his father. His father, Donnie Robinson, is a top attorney in Chicago and the President of the Illinois Black Trial Lawyers Association. He couldn’t believe that his son received a ticket for wearing the latest style of clothing. He challenged the city’s ban in court. He claimed that the ordinance violated his son’s right to free expression.
The city countered that this is a reasonable exercise of its police powers—it is protecting the safety of its citizens. The many accidents at the mall were cited as justification as well as the complaints of the parents. This is not an issue of free speech. There is no message conveyed by the style of dress. Even if the ordinance infringes upon some form of expression, it is within the power of the city to create a valid place ban to ensure safety and preserve the continued economic viability of the Mall.
The Robinsons lose in the lower courts. Both the city court and the state court of appeals side with the city. The Minnesota Supreme Court refuses to hear the case noting that although the justices consider the ban silly, it is not unconstitutional. Donnie Robinson, with the backing of his firm, and the Illinois BTLA, files a petition for a writ of certiorari challenging the ordinance and its suppression of expression. His request is granted. After the grant of certiorari, the ACLU asks for permission to file a brief amicus curiae to address an additional issue not discussed by either of the parties—the violation of the 14th amendment by the city of Bloomington. The Solicitor General of the United States also asks permission to intervene as amicus curiae on behalf of Bloomington and Minnesota to argue that there is no violation of the 14th amendment.