Legal Matters: Successful Dress Codes

By Roberta F. Green and Heather B. Osborn Communicator May 2013, Volume 36, Issue 9

By Roberta F. Green and Heather B. Osborn
May 2013, Volume 36, Issue 9

A public school student’s right of free speech can frequently come into conflict with school officials’ authority to prescribe and control conduct. This nexus is probably nowhere more evident than in dress codes and school uniforms. While school uniforms seem like a safe and easy choice, litigation abounds related to how the decision is made to wear uniforms, whether it is permissible to have the school logo and slogan on the uniform, and whether alternative, adequate outlets for speech exist.

The U.S. Supreme Court has provided broad guidance as to what regulation of speech by educators is permissible, but, notably, the tests are largely fact-driven. In other words, nothing is very simple.

The Issues
A few precepts do arise—the rules to take home, if you will—that can guide decision-makers early in this process. While students have First Amendment rights that are not as broad as those of adults in a public forum, they do have those rights, nonetheless. Any limitation upon those rights must be measured in light of the special characteristics of the school environment. Schools may regulate speech consistently with legitimate pedagogical concerns, which include increasing student achievement, promoting safety, teaching manners and habits conducive to happiness and self-government, and enhancing a positive school environment. And the Court has recognized that these goals may necessitate some limitations on speech. However, those limitations must be merely a byproduct of the pedagogical concern—not the goal.

The constitutional issue with dress codes and/or uniforms is that dress constitutes free expression, which in the legal analysis is speech. The initial question is whether the prohibition of speech/dress is based on the content of the speech or the manner in which the speech is expressed.

The Cases
Specifically, one of the early watershed cases on school dress—Tinker v. Des Moines Independent Community School District—considered whether students could be stopped from wearing black armbands to school in protest of the Vietnam War.Upon learning of the students’ protest plans, the school intervened and, prior to the protest, the school adopted a policy that any student wearing a black armband to school would be suspended until s/he returned without the armband.

While the era of black armbands may have largely passed, the Tinker case has come to stand for the proposition that a school’s fear or apprehension of a disturbance is not enough to overcome the students’ rights of free expression. As a practical matter, Tinker has allowed a student to wear an offensive or controversial T-shirt unless or until an actual disturbance breaks out. For example, a parent made a T-shirt for her fifth grade son; the shirt included a slogan on the back that read, “Even Adults Lie.” The reference arose from an altercation at the school in which the fifth grader purportedly was unfairly maligned by a teacher; the shirt appeared the next day. The reviewing court found that the fifth grader could wear the shirt and could even explain the circumstances of the shirt. However, when the fifth grader became belligerent about the shirt, yelling and disrupting hallways until fisticuffs ensued, then the shirt/speech had created a disturbance and the school could intervene.

So, the initial determinant is whether the speech or clothing is actually disruptive, not whether it is expected to be disruptive. Therefore, administrators who have stopped students at the door and waylaid them until the attire was changed have been found to have acted precipitously. That said, courts have found as well that some speech is, on its face, not conducive to civil discourse and is inappropriate for school generally, including inflammatory religious messages (e.g., “Islam is of the Devil” in Sapp v. School Board of Alachua County, Florida, 2011). That is true as well of speech that is lewd, vulgar, and inappropriate for the maturity level of the audience—then, the school may intervene. For example, in Bethel School Dist. v. Fraser (1986), the Court found in favor of the school when considering a student’s use of sexually suggestive speech at a school-sponsored assembly for student body elections.

Dress codes raise additional issues, both in terms of their adoption (which needs to allow parents their due process rights) and the nature of the code itself. For example, a code would need to further an important or substantial government interest that is unrelated to suppression of free speech, such as increased safety or improved academic performance. The restriction must go no further than essential to advance that interest.

One factor that courts have considered is the countervailing effort the schools have given to ensuring “speech” in other forms—allowing students to select their own footwear or jewelry, allowing students a “free speech” alley for voicing their issues, allowing non-uniform days periodically to allow for speech or even identifying one school in the district as a “non-uniform school” for persons who wish to opt out.

The Recommendations
In summary, a school considering limiting speech will want to consider whether it is the content or the manner of speech being regulated. If it is the content, the test may include whether disruption occurred or was only expected or forecasted to occur. If it is the manner of speech, then the propriety of that speech for the audience is a determinant (and most of these cases deal with sexually charged situations, as opposed to political speech or violence). Thus, perhaps the truest statement that can be made about speech and dress codes is that the determinations are based on facts and on the motivation of the school administrators.

This article is brought to you by Roberta F. Green and Heather B. Osborn of Shuman McCuskey & Slicer, PLLC, Charleston and Morgantown, West Virginia.

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