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126 Pages·2014·2.24 MB·English
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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 Lanham • Boulder • New York • London Published by Rowman & Littlefield A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 16 Carlisle Street, London W1D 3BT, United Kingdom Copyright © 2014 by Richard Fossey and Todd A. DeMitchell All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Available 978-1-4758-0203-0 (cloth : alk. paper) 978-1-4758-0204-7 (pbk. : alk. paper) 978-1-4758-0205-4 (electronic) TM The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America 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).

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Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues explores the legal issues that arise when a school prohibits various types of student attire. Administrators must respect a student's constitutional right to free speech, yet still maintain an environment that is conduci
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