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Dress code rules unlikely to be black and white: MacKinnon

The creation of a school dress code requires the often delicate balance between the right to freely express oneself and the need for school environments to be respectful and appropriate, says education lawyer Sheila MacKinnon.

One Newfoundland and Labrador school’s dress code recently prompted protests, reports the CBC, as students at Beaconsfield Junior High in St. John's felt the policy was “sexist and unfair.”

Last year, another Newfoundland and Labrador school, Menihek High School in Labrador City, also dealt with dress code controversy after about 30 students were sent home because of attire deemed to have violated the code — including wearing sleeveless shirts and having bra straps exposed, says the CBC.

The Newfoundland and Labrador Federation of School Councils has said schools need to be “democratic” about dress codes and involve parents, teachers and students, says the report.

In Ontario, says MacKinnon, dress codes are created at the individual school and community level.

“As far as I understand it, many school boards have parameters in place to guide schools, but they leave it to individual schools to set their own policies,” MacKinnon, a partner with Shibley Righton LLP, tells AdvocateDaily.com. “Many are then vetted through school councils, and put to a vote by the parents on behalf of children if they’re under 18.”

Individual policies may vary, but MacKinnon says all should be in line with human rights codes and the Canadian Charter of Rights and Freedoms.

“Some people may say, ‘I have freedom of expression and I can wear what I want,’ but like any other Charter right, it’s a balance,” she says. “Schools should consider whether their policy is consistent with human rights codes and the Charter, especially as related to religious beliefs.”

An ideal dress code should touch on respect, safety and the importance of diversity, says MacKinnon.

“Schools should ensure those are covered off. A dress code should also discuss what’s not appropriate. Gang affiliation or profanity is usually not allowed, or clothing depicting violence or any sort of discrimination based on gender, race or disability,” she says. “Decency is usually a concept that’s included as well, with some going as far as to say females cannot bare their midriff, for example.”

Determining where to draw the line with such rules is never easy, says MacKinnon.

“Where that line is may be different depending on the circumstances,” she says. “It’s always difficult, but the principal has an obligation to ensure the school is safe and welcoming to all students. The right way to balance individual rights is to prepare dress codes on a school-by-school basis so they're reflective of the local community and ensure democratic rights by having parents vote on a code.”

Rules are generally not “black and white,” says MacKinnon, noting a dress code may require students to remove hats during the national anthem, for example, but if that goes against a religious right, an exception will be made.

“Schools have to be mindful of what is in the code and whether it could violate someone’s right under the human rights code,” she says. “They have to take that into account when setting their rules and then allow for that adjustment when they do discover mitigating factors.”

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