September 4, 2013

According to the commercials for department store and discount store chains, back-to-school shopping is just a matter of finding this year’s coolest brands. The biggest challenge would seem to be making sure you buy the correct licensed cartoon character. In real life, we know that isn’t true. In many families, the start of the new school year is also the start of the new “arguing over what the kids can wear to school” year.

UniformsThe argument often spills over and involves the school. School dress codes seem to wax and wane in popularity. They were a common feature of scholastic life in the 50s and 60s (remember the scene in the movie Mr. Holland’s Opus, when girls were sent home if their skirts did not touch the floor when they kneeled). The codes seemed to fade away in the 70s and 80s, often replaced with some vague suggestions about what to wear. In the 90s, concerns about school discipline revived dress codes, especially in schools in which certain colors or types of clothes were associated with gang activity. In 1996, President Clinton and the U.S. Department of Education endorsed school uniforms, the ultimate dress code. Uniforms, it was said, reduced the visible differences between students of different socioeconomic classes, and also helped to foster a sense of pride and belonging.

While the goals of a school dress code or uniform requirement may be praiseworthy, some policies—or the way those policies have been enforced—have raised First Amendment concerns. Clothing often carries a message, whether that message is an advertisement for a designer or political or religious slogan. Many school officials have used vague directives in dress codes, such as prohibitions against “disruptive” attire, to censor the messages carried on student clothing. Some of the action taken by schools can border on the farcical, as in the incident of the Oklahoma City kindergartner who was told to turn his University of Michigan t-shirt inside out because it violated the school district’s dress code (no non-Oklahoma sports team logos allowed). How far can schools go in regulating student expression through dress codes?

Any discussion of the First Amendment rights of public school students starts with the seminal case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In that case, students were suspended for wearing black armbands as a part of a protest against the war in Vietnam. The U.S. Supreme Court ruled that public school officials could not censor student expression unless it is shown that the expression would be disruptive. As Justice Fortas stated in his opinion for the majority, “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” A prohibition of a particular expression of opinion must be justified by something more than “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Interestingly, the Court stated explicitly that its holding did not “relate to regulation of the length of skirts or the type of clothing, to hair style or deportment.” The holding in the Tinker case was limited, but not overruled, by the Supreme Court in Morse v. Frederick, 551 U.S. 393 (2007). In Morse, the Supreme Court upheld the suspension of a public school student who displayed an unauthorized banner at a school function. The words on the banner (“BONG HiTS 4 JESUS”) could reasonably have been viewed as promoting illegal drug use. The school officials acknowledged that the student’s banner was not disruptive, but they were concerned that the banner would be understood as advocating or promoting illegal drug use.

CasualThere is a wide range of potential expression on clothing that does not advocate drug use or protest a war. The Supreme Court has not ruled directly on the question of how far school dress codes can go in limiting student expression, but in 2010, the Court declined to hear a case in which a school’s dress code was upheld against a student’s First Amendment challenge. In Palmer v. Waxahachie Independent School District, 579 F. 3d 502 (5th Cir. 2009), the school’s dress code prohibited clothing that carried non-school related messages, but permitted shirts with logos smaller than two inches by two inches. The policy also allowed clothes that promoted “campus principal-approved [District] sponsored curricular clubs and organizations, athletic teams, or school ‘spirit’ collared shirts or t-shirts.” Paul Palmer, a high school student, asked school authorities for permission to wear one of three shirts, two that said “John Edwards for President ’08,” and one with the words “Freedom of Speech” on the front and the text of the First Amendment on the back.

The school district rejected both shirts. Palmer sued, and the U.S. District Court for the Northern District of Texas denied his request for a temporary injunction. The Fifth Circuit upheld the denial. The court found that the restrictions in the dress code were content neutral restrictions on expression, because the code’s “allowance for school logos and school-sponsored shirts does not suppress unpopular viewpoints but provides students with more clothing options than they would have had under a complete ban on messages.” If the restrictions on messages furthered a substantial or important governmental interest, they would be upheld.

The school district claimed that the code was adopted “to maintain an orderly and safe learning environment, increase the focus on instruction, promote safety and life-long learning, and encourage professional and responsible dress for all students.” The district also stated that the code would “reduce administrative time spent enforcing the code and promote the school and its activities.” The court agreed that these purposes were substantial or important interests. The court also stated that the district had shown that the policy furthered those interests with testimony “that the school board had examined over forty other dress codes to see which would be the best fit for the District; the board took trips to see dress code enforcement in action and reviewed data regarding the impact of codes on other schools.” Statistical or scientific evidence of improvement would not be required.

In recent years, federal appellate courts have tended to support school-imposed restrictions on students’ expression through dress. Most appellate cases have involved students who wanted to wear clothes with a Confederate flag. See, e.g., Barr v. Lafon, 538 F. 3d 554 (6th Cir. 2008); B.W.A. v. Farmington R-7 School District, 554 F. 3d 734 (8th Cir. 2009); A.M. v. Cash, 585 F. 3d 214 (5th Cir. 2009); Defoe v. Spiva, No. 09-6080 (6th Cir. 2010); and Hardwick v. Hayward, 711 F. 3d 426 (4th Cir. 2013). In A.M. v. Cash and Defoe, the school was responding to hostile racial incidents. In Jacobs v. Clark County School District, 526 F. 3d 419 (9th Cir. 2008), a school district policy that required students to wear uniforms without any variations or messages was upheld in the face of First Amendment challenges.

Courts are not unanimous in their deference to school dress code decisions. In Lowry v. Watson Chapel School District, 540 F. 3d 752 (8th Cir. 2008), the court held that the school could not discipline students who wore black armbands to protest the district’s uniform policy, when the armbands did not cause disruption. Two other cases involved interpretation of a dress code. A school policy against derogatory comments on clothing could not prohibit a student from wearing “Be Happy, Not Gay” on her shirt, Zamecnik v. Indian Prairie School District # 204, No. 10-2485 (7th Cir. 2011), and a bracelet with a slogan promoting breast cancer awareness was not lewd speech, B.H v. Easton Area School District, No. 11-2067 (3rd Cir. Aug. 5, 2013).

In short, there is no consistent approach to school dress code cases. Schools are allowed to prohibit wearing or displaying a Confederate flag, as a way of controlling disruptive behavior. On the other hand, there does not always have to be a showing of disruption. The Fifth and Ninth Circuits showed great deference to the decisions of school boards without requiring a showing of specific disruption. A blanket prohibition against expression will, it seems, be tolerated. A school could thus prohibit t-shirts that promote musicians or clothing companies, without a showing that advertising one band over another would cause disruption. If one particular message (e.g., the Confederate flag) is the target, schools will have to show specifically that the message would lead to disruption of the school.