Rehabbing the law...
Remember when bans on pants that exposed one's underwear were assumed to be directed at least partly at Britney Spears and other women who wore low-slung pants? Apparently the recent fashion trend away from ultra low-rise has left young African American males alone as the targets of such ordinances, at least according to the New York Times.
My own constitutional analysis hasn't changed since these laws were being suggested four years ago; if a locale wants to require that people not intentionally expose their underwear in public, that's within bounds of the police power. The shift in the assumptions, however, is interesting to observe. Once upon a time, Nelly and P. Diddy decried, "Look here momma you're dead wrong / For having them pants on / Capris cut low so when you shake it I see your thong." Now law mandating that private parts stay private and unmentionables are kept invisible has the Georgia ACLU executive director complaining, "I donít see any way that something constitutional could be crafted when the intention is to single out and label one style of dress that originated with the black youth culture, as an unacceptable form of expression."
Crafting a law that doesn't single out the hiphop style of baggy pants doesn't seem difficult. The law should be oriented toward what is exposed, not who or how. For example, a law that singled out men would be automatically questionable on equal protection grounds, but one that simply required everyone of all races, ages and genders to keep their underpants covered in public would avoid that problem. The real trouble is enforcement. Because African American men already are born suspect, laws that would empower police to arrest many of them for a simple violation of dress code are likely to be abused and selectively enforced in accordance with biases of age, race and sex. However, I don't know how you'd pre-emptively strike a law based on how it would be applied, without giving it the chance to be applied, and I just don't see a facial unconstitutionality in these bans. However, explicitly raising the as-applied concern prior to enactment may lead to a more careful enforcement.