Dress Codes and Case Law
When administrators turn to the body of existing case law for guidance in
matters pertaining to student dress, they may be disappointed to discover that
the legal decisions do not clearly specify what is proscribed and what is
prescribed.
The social and political winds have shifted since the first student-expression
case was heard by the U.S. Supreme Court more than thirty years ago. These
changes have often been reflected in the philosophical position of the courts.
According to Majestic and colleagues (1995), in general there has been an
“increasingly deferential stance of the courts to the authority of schools in
more recent years” compared with the more liberal climate of the 1960s and the
“judicial confusion” of the 1970s.
Although several student-expression cases have been decided by the U.S. Supreme
Court, to date, no dress-code case has been heard by the High Court. In the area
of student expression generally, however, the recent trend has been toward
“reducing the rights of students and expanding the discretion of school
authorities” (DeMitchell, Fossey, and Cobb 2000).
When school officials begin to delve into the area of student dress, they
invariably encounter two basic issues that may be on a collision course:
maintaining a safe and effective educational environment and respecting
students’ constitutional rights. A review of several court decisions in the area
of student expression and dress may be useful in raising awareness of issues
that should be considered before any policy changes are made.
Four Important Cases
1. Tinker v. Des Moines Independent School District
Tinker v. Des Moines Independent School District was a landmark case concerning
student expression litigated by the U.S. Supreme Court in 1969. Before Tinker,
students were not necessarily assumed to possess basic constitutional rights in
the school setting. The assumption was that public-school personnel possessed
“parental prerogatives” and were entitled to limit students’ rights as they saw
fit (LaMorte 1999). In Tinker, the court clearly proclaimed that students do not
“shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”
At issue in Tinker v. Des Moines Independent School District was whether
students had the right to wear black armbands to school as a statement of
protest against U.S. policy in Vietnam. The court concluded that student
expression is protected unless it could be shown that a particular behavior
would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school” or “collide with the
rights of others” (DeMitchell and others 2000).
In Tinker, the court upheld students’ right to expression of a social,
political, or economic nature, yet it also acknowledged the right of school
administrators to set rules and establish behavioral guidelines for students. In
addition, justices explicitly stated that the case did not pertain to the issue
of student dress or appearance:
The problem posed by the present case does not relate to regulation of the
length of skirts or the type of clothing, to hairstyle, or deportment.... Our
problem involves direct, primary First Amendment rights akin to “pure speech.”
(DeMitchell and others 2000)
In the wake of Tinker, students became increasingly confident concerning their
newfound rights and began stretching their constitutionally protected wings.
With Tinker as a backdrop, throughout the 1970s and the first half of the 1980s
“active and lively litigation” ensued in the area of student expression.
According to LaMorte, the cases decided during this period
did little to dispel fears that the Tinker court had bestowed upon students
unbridled license to behave as they pleased. Several federal courts, relying on
the Tinker decision, upheld forms of student expression that many parents and
school authorities considered inappropriate. (LaMorte 1999)
During the latter part of the 1980s, however, the pendulum began to shift.
Supreme Court rulings in Bethel School District No. 403 v. Fraser and Hazelwood
School District v. Kuhlmeier, in particular, expanded school administrators’
rights, giving them greater latitude in regulating student expression.
2. Bethel School District No. 403 v. Fraser
In 1986, the U.S. Supreme Court decided another case that would have a
significant impact on students’ rights of expression in the school setting. In
Bethel School District No. 403 v. Fraser, the court reversed a lower court
ruling and upheld the right of school officials to “sanction a high school
student for using lewd, vulgar, or offensive sexual metaphors during a political
speech at a school assembly” (DeMitchell and others 2000).
In its decision, the court noted that part of the role of public education is to
develop in students “the habits and manners of civility.” The court stated that
“the undoubted freedom to advocate unpopular and controversial views in schools
and classrooms must be balanced against the society’s countervailing interest in
teaching students the boundaries of socially appropriate behavior.”
Whereas Tinker ruled that student expression could be prohibited only when it
collided with the rights of others, Bethel v. Fraser “eased the standard in that
the sensibilities of others must be taken into account when viewing the
propriety of student speech.” The court held that “the determination of what
manner of speech in the classroom or in a school assembly is inappropriate
properly rests with the school board.”
3. Hazelwood School District v. Kuhlmeier
In 1988, the principal of Hazelwood East High School outside St. Louis,
Missouri, removed from the student newspaper two student-written articles that
he found objectionable. The articles on teen pregnancy and the impact of divorce
on students were in a special teen-issue section of the newspaper. Members of
the student staff sued.
The U.S District Court for the Eastern District of Missouri held that students’
First Amendment rights were not violated. The students appealed to the U.S.
Eighth Circuit Court of Appeals, which reversed the district court’s decision,
taking its cue from the Tinker v. Des Moines decision. On appeal to the Supreme
Court, a majority of justices reversed the Court of Appeals decision, applying a
“forum analysis” and holding that the school as a “closed forum” had the right
to exercise reasonable control of the school-sponsored newspaper produced as
part of a class.
4. Canady v. Bossier Parish School Board
Canady v. Bossier Parish School Board, a case concerning the constitutionality
of student uniforms, was initially heard in district court and subsequently
appealed to the Fifth Circuit Court of Appeals. In 1997, the Louisiana
Legislature passed a law allowing local school boards to mandate student
uniforms. As a result, during the 1998-99 school year, the Bossier Parish School
Board implemented a mandatory uniform policy on a trial basis in sixteen of its
thirty-four schools. The goal was to determine whether uniforms had a positive
effect on behavior and academic performance.
According to district personnel, test scores improved and disciplinary problems
such as fights declined following implementation of the trial uniform policy.
The following year the policy was expanded to include all schools and all grade
levels. The policy did not include an opt-out provision.
Subsequently, some parents in the affected schools challenged the uniform
requirement, “arguing that uniforms stifle individual expression, do not improve
the learning environment, are expensive, and violate religious rights” (National
School Boards Association 2001). When a district court heard the case, it found
the policy did not violate students’ free-speech rights. When the decision was
appealed, the Fifth Circuit Court of Appeals upheld the lower court.
In writing the court’s opinion, Judge Robert M. Parker acknowledged that
students have a constitutional right to free expression under the First and
Fourteenth Amendments, and a person’s choice of clothing can be a
constitutionally protected form of expression. However, Judge Parker explained,
the right to free speech is not absolute. Courts have concluded in many cases
that sometimes school boards’ regulation of student behavior outweighs
individual students’ right to free speech.
The court applied a four-step test to determine constitutionality.
Under that test, a uniform policy passes constitutional muster if
- The school board has the power to make such a policy.
- The policy promotes a substantial interest of the board.
- The board does not adopt the policy to censor student expression.
- The policy’s “incidental” restrictions on student expression are not greater
than necessary to promote the board’s interest. (Dowling-Sendor 2002)
SIDEBAR
Some Practical Advice
Benjamin Dowling-Sendor, an authority on school law and an assistant appellate
defender in North Carolina, offered this counsel to school boards wishing to
adopt a school-uniform policy:
- Solicit input from parents and students.
- Research the experiences of other school districts with uniform policies.
- Articulate the interests they wish to promote through uniform policies.
- Report on that process in a concise, written public statement by the board
before you have to do so in court.
SIDEBAR
Viewpoints
“It is very important for our public schools to respect the variety of different
beliefs. When a school policy, which has nothing to do with an important
education function, is allowed to override a child’s religion, then basically
the child is being denied an education.”
— Deborah Ross, executive director, North Carolina American Civil Liberties
Union
“The choice to wear clothing as a symbol of an opinion or cause is undoubtedly
protected under the First Amendment if the message is likely to be understood by
those intended to view it.”
—Robert M. Parker, judge, Fifth U.S. Circuit Court of Appeals
SIDEBAR
Factors Affecting Dress-Code Challenges
According to Mary Julia Kuhn, writing in Journal of Law and Education, legal
battles over school dress codes are endemic. The outcome of these battles often
depends on five key factors:
- How the issue is characterized.
- What specific words are used in the dress code.
- The geographical area of the conflict.
- The liberal or conservative trends of the U.S. Supreme Court, combined with
the social and political climate of the country.
- The level of judicial activism of the court.
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