Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues

126 Pages·2014·2.24 MB·English

by  Richard Fossey

Student Dress Codes and the First Amendment
Student Dress Codes and the First Amendment
Legal Challenges and Policy Issues
Richard Fossey and Todd A. DeMitchell
ROWMAN & LITTLEFIELD
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It is worth remembering that, whether this decision is correct or not, no other
court system in the world today, and none that has existed in the history of the
world, would take so much time to address the concerns of two high school
students sent home over their T-shirts. Whatever the outcome, claims of violation
of free expression are given the greatest attention, even when they arise in
miniature, by this country, this judicial system and this court.
Pyle v. South Hadley School Committee (1993)
Preface
The medium is the message.
—Marshall McLuhan[1]
What are students thinking about in the morning as they choose the clothes they
will wear to school for the day? Do they want to wear something fashionable or
something they think will make them more attractive to the opposite sex? Do they
choose clothing that will boost their confidence, or are they simply looking for
something to wear that is reasonably clean?
Based on our review of federal court decisions, it is clear that some students
choose their school clothing to make some sort of statement. They may wish to
express their views on a political or social issue, their attitudes about authority, their
affinity for a sports team, or their religious beliefs. Often they express their views on
that ubiquitous item of student clothing—the T-shirt.
Since time immemorial, schools have enforced student dress codes, which put
restrictions on what students may wear to school. In general, schools adopt student
dress codes in order to maintain an educational environment that facilitates instruction
and orderliness. Although the details of these codes vary widely, they generally
articulate standards of modesty, cleanliness, and decorum. A code might dictate
standards for girls’ skirt length, for example, or require boys to keep their shirttails
tucked in their pants. Student dress codes usually forbid bawdy messages on
clothing, messages that promote the use of illegal drugs, or expressions that demean
other students.
From time to time, students have challenged school dress codes in court, arguing
that the messages proclaimed on their clothing are constitutionally protected under
the First Amendment. Indeed, in Tinker v. Des Moines Independent Community
School District, the Supreme Court ruled more than forty years ago that students
have a constitutional right to freedom of expression while they are in the school
environment.[2] And numerous lower court decisions have ruled that this constitutional
right of expression may include the messages that students proclaim on their clothing.
Nevertheless, in the years since the Tinker case was decided, the Supreme
Court has made clear that a student’s right to free expression is not unlimited when
the student is at school. As Chief Justice Burger stated in Bethel School District No.
403 v. Fraser, “the constitutional rights of students in public school are not
automatically coextensive with the rights of adults in other settings.”[3] Rather, as one
federal court asserted, a public school student’s right to free speech must be
“balanced against the need to foster an educational atmosphere free from undue
disruptions to appropriate discipline.”[4]
Over the years, the Supreme Court has sketched out some of the limits on
students’ constitutional right to freedom of expression while they are in the school
environment. In the Bethel case, the Court held that schools have the authority to
censor student speech that is vulgar, lewd, or profane. In Hazelwood School District
v. Kuhlmeier, the Court stated that schools can regulate student speech that is
school-sponsored.[5] And in Morse v. Frederick, the Supreme Court upheld the right
of school authorities to ban student expression that promotes or celebrates the use of
illegal drugs.[6]
These Supreme Court decisions have helped school administrators understand
the limits of their constitutional authority when they seek to regulate student speech,
including speech on students’ clothing; but disputes continue to arise between
students and school officials regarding what students wear to school. Again and
again, the federal courts have been called on to determine whether a student has a
First Amendment right to wear a particular item of clothing that school officials seek
to ban as being in violation of their school’s student dress code.
Thus, educators are required to balance two sometimes conflicting
responsibilities: On the one hand they are charged with providing high-quality
education in a safe and non-abusive environment. On the other hand, they are
required to respect their students’ constitutional right to freedom of expression, which
they sometimes exercise by proclaiming messages on their clothing.
Often the schools win these cases. In Gano v. School District No. 411, for
example, a federal district judge upheld the suspension of a student who wore a T-
shirt showing three school administrators inebriated.[7] And in Baxter v. Vigo County
School Corporation, the suspension of a Lost Creek Elementary school student for
wearing T-shirts that read “Unfair Grades,” “Racism,” and “I Hate Lost Creek” was
upheld. [8]
On the other hand, students regularly win some of these cases. For example, a
federal court in Pennsylvania ruled that students have the constitutional right to wear
bracelets that proclaimed, “I ♥ Boobies” to show their support for breast cancer
awareness.[9] And the Seventh Circuit Court of Appeals ruled that school officials
could not prohibit students from wearing T-shirts to school that proclaimed “Be
Happy, Not Gay.”[10]
Dress codes sit at that intersection of students’ constitutional right to free speech
and the compelling need for the public schools to establish and maintain a suitable
environment for education.[11] We will explore this intersection throughout the book.
We have studied and implemented dress codes from two different perspectives
and one shared perspective. Richard practiced school law in Alaska and helped
school districts craft dress codes that protected school environments while striving to
respect students’ legitimate right to engage in free speech. Todd was an elementary
school teacher, a principal (K–8), and school superintendent (K–8) in California,
where he implemented and enforced dress codes. As legal researchers, we have
studied student dress codes for over fifteen years and analyzed the many federal
court decisions regarding the constitutional limitations on these codes. The legal
aspects of student attire is a subject that we have often written about in the scholarly
literature, and we hope our readers will find our perspectives and analysis helpful.
ORGANIZATION OF THE BOOK
This book focuses on legal and policy issues pertaining to student dress codes and is
organized into six chapters. The first chapter sets the stage for the rest of the book
by discussing the controversy about student expression through clothing choices and
the challenges that confront public school educators who seek to respect the
constitutional rights of their students while enforcing policies designed to ensure the
efficient delivery of educational services and the protection of a proper learning
environment for students.
Chapter 2 examines the four United States Supreme Court decisions on the
constitutional rights of students to engage in free speech while at school: Tinker v.
Des Moines Independent School District,[12] Bethel School District No. 403 v. Fraser,
[13] Hazelwood School District v. Kuhlmeier,[14] and Morse v. Frederick.[15]
This chapter also discusses three important First Amendment cases decided by
the Supreme Court outside the school context: United States v. O’Brien,[16] Spence v.
Washington,[17] and Texas v. Johnson.[18] Although none of these decisions involve
student speech in the school environment, the lower federal courts have occasionally
looked to these three opinions when deciding constitutional disputes about student
attire.
The following three chapters explore discrete categories of student dress code
litigation. Chapter 3 examines cases involving nonspecific messages on student
clothing, such as Bivens v. Albuquerque Public Schools, in which a student claimed a
constitutional right to wear sagging pants to school.[19] Chapter 4, entitled “Drugs,
Politics, and the Confederate Battle Flag: Targeted Messages on Students’ Clothing,”
is an analysis of the extensive litigation involving political messages, drugs, and the
Confederate flag. Chapter 5 continues our review of content-specific messages
involving student attire. It surveys lawsuits concerning abortion, sex, and sexual
orientation.
In the sixth chapter, we offer some recommendations to school authorities
regarding how to draft student dress codes that will pass constitutional muster under
the First Amendment. In addition, we attempt to bring the policy implications of dress
code policies into focus.
In this concluding chapter, we argue for a balance between the rights of students
to express themselves at school and the responsibilities of educators to maintain a
safe, orderly, and respectful school environment. We question whether the public
schools should be forced to defend their decisions about what students wear to
school in the federal courts. Defending a lawsuit can be expensive, and surely money
spent litigating in federal court would be better spent educating students.

We also question whether parents are sending their children the right message
about civic rights and responsibilities when they argue in federal courts that their
children have a constitutionally protected right to wear a particular item of clothing to
school. And finally, we question whether the federal courts are serving the best
interests of schools, students, or society at large by giving serious attention to
students who come to court arguing they have a constitutional right to attend school
wearing whatever they choose to wear. After all, students have adequate venues for
expressing their views while at school in student clubs, school newspapers, and
appropriate forums for student discussions and debates. We do not see the wisdom
or constitutional necessity of turning the scarce resources of the federal judiciary to
the examination of school regulations about student attire.
NOTES
1. Marshall McLuhan, Understanding Media: The Extensions of Man (New York: New
American Library, 1964), 1. “This is merely to say that the personal and social
consequences of any medium—that is, of any extension of ourselves—result from the
new scale that is introduced into our affairs by each extension of ourselves, or by any
new technology.” Ibid.
2. Tinker v. Des Moines Independent Community School District, 393 U.S. 503
(1969).
3. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
4. Bivens v. Albuquerque Public Schools, 889 F. Supp. 556, 559 (D.N.M. 1995).
5. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1989).
6. Morse v. Frederick, 551 U.S. 393 (2007).
7. Gano v. School District No. 411, 674 F. Supp. 796 (D. Idaho 1987).
8. Baxter v. Vigo County School Corporation, 26 F.3d 728 (7th Cir. 1994).
9. B.H. v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013).
10. Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008).
11. The Supreme Court has recognized that schools have a “compelling interest in
having an undisputed school session conducive to the students’ learning” (Grayned v.
City of Rockford, 408 U.S. 104, 119 [1972]).
12. 393 U.S. 503 (1969).
13. 478 U.S. 675 (1986).
14. 484 U.S. 260 (1989).
15. 551 U.S. 393 (2007).
16. 391 U.S. 367 (1968).
17. 418 U.S. 405 (1974).
18. 491 U.S. 397 (1989).
19. Bivens v. Albuquerque Public Schools, 889 F. Supp. 556, 559 (D.N.M. 1995).