Clothing, dress codes & uniforms

Monday, April 1, 2002

One constitutional controversy raging in public schools today concerns mandatory school
uniforms and dress codes.

Proponents contend such measures instill discipline and prevent gang-related violence.
They say uniforms and some dress codes lessen peer pressure aggravated by
socioeconomic divisions, promote a unity of spirit and help administrators more quickly
identify trespassers on school grounds. Some school administrators say that such
restrictions help prepare students to dress for success in the job market.

Opponents counter that such measures suppress student individuality and personal
freedom. They argue that students could become alienated if school officials close off one
of their few avenues of self-identification and expression. They also question whether
restrictive dress codes really make schools safer. Many parents argue that these restrictive
policies also infringe on the parents freedom in rearing their children.

The push for uniform student dress

Many public schools adopted dress codes and uniforms after then-President Bill Clinton
endorsed uniforms in his 1996 State of the Union address:

I challenge all our schools to teach character education, to teach good values and good
citizenship. And if it means that teenagers will stop killing each other over designer
jackets, then our public schools should be able to require their students to wear school
uniforms.

Long Beach Unified School District reported seeing a marked reduction in school
disciplinary problems and violence after instituting a mandatory school-uniform policy.
Public school districts across the country have followed suit. Other districts have not
mandated uniforms, but have instituted dress codes that prohibit certain clothing.
Commonly prohibited attire includes clothing that reveals too much of the body, contains
racially insensitive symbols, promotes alcohol or tobacco, or suggests violence.

Ironically, both opponents and proponents of student dress codes point to the same U.S.
Supreme Court ruling to support their positions Tinker v. Des Moines Independent
Community School District (1969). In this famous decision, the Court ruled 7-2 that
public school officials could not censor student expression the wearing of black
armbands, in that case unless they could reasonably forecast that the student
expression would cause substantial disruption or material interference with school
activities or would invade the rights of others.

Dress-code opponents emphasize that students convey a multitude of messages on their

clothing, ranging from political slogans, music lyrics, and support for a favorite athletic

team. They argue that school officials cannot censor student expression unless they can
show that the clothing will disrupt the school environment. They contend that Tinker
stands for the fundamental principle that students have the right to wear clothing with
messages, just as the students in the 1960s could wear black armbands to protest the
Vietnam War.

However, those who favor dress codes cite a specific passage from Tinker in support of
their position. In Tinker, the Court wrote: The problem posed by the present case does
not relate to regulation of the length of skirts or the type of clothing, to hair style or
deportment. Yet opponents seize on this language to emphasize that even Tinker
recognized that disputes over types of clothing do not raise the same free-speech interests
as regulation of the type of expression at issue with armbands.

Legal standards
Some courts apply the Tinker standard to determine if school officials can regulate
student clothing. This standard asks whether school officials can reasonably forecast
whether the student expression will cause a substantial disruption or material interference
with school activities. For instance, a three-judge panel of the 4th U.S. Circuit Court of
Appeals recently struck down a portion of a schools dress code in Newsom v. Albemarle
County School Board that prohibited clothing depicting weapons.

The controversy arose after school officials forced student Alan Newsom to quit wearing
his National Rifle Association T-shirt, which depicted three silhouettes of men holding
guns and bore the message NRA Sports Shooting Camp. The school policy prohibited
messages on clothing, jewelry, and personal belongings that relate to weapons.

In its December 2003 decision, the 4th Circuit determined that the policy was too broad
and was not necessary to prevent disruptions at school. The court explained that the
language of the school dress code would prohibit clothing bearing the state seal of
Virginia, which depicts a woman holding a spear, or clothing bearing the athletic mascot
of the University of Virginia, which contains two crossed sabers.

Many courts will analyze student dress cases under a threshold test established by the
Supreme Court in flag-desecration cases. This two-part test asks: (1) whether the student
intended to convey a particular message, and (2) whether reasonable observers would
understand this message. A federal district court in New Mexico applied this standard to
rule that a public school student did not have a First Amendment right to wear sagging
jeans.

In Bivens v. Albuquerque Public Schools, the judge questioned whether sagging pants
conveyed any particular message: Sagging is not necessarily associated with any single
racial or cultural group, and sagging is seen by some merely as a fashion trend followed
by many adolescents all over the United States. The judge said that even if sagging
somehow constituted a message, the student failed to establish that reasonable observers
would understand any message coming from the wearing of sagging pants.

Other courts have applied a test developed from the U.S. Supreme Courts 1968 decision
on draft-card burning, U.S. v. OBrien, to determine whether a school dress code is
constitutional. Under the OBrien test, a school dress code or uniform policy is
constitutional if it:

Is authorized under state law.

Advances an important government interest.
Is not related to the suppression of free expression.
Only incidentally restricts free expression in a minimal fashion.
The 5th U.S. Circuit Court of Appeals has used the OBrien test more than once to uphold
a school-uniform policy against constitutional challenge, as in Canady v. Bossier Parish
School Board:

The School Boards purpose for enacting the uniform policy is to increase test scores
and reduce disciplinary problems throughout the school system, the appeals court wrote
in Canady. This purpose is in no way related to the suppression of student speech.

Another legal standard is sometimes applied to student dress-code disputes. Courts will
apply the Supreme Courts 1986 decision Bethel School District v. Fraser, which allowed
a school to punish a student for giving a vulgar speech before the student assembly. Some
courts will use the Fraser precedent to prohibit students from wearing any clothing that
contains vulgar, lewd or plainly offensive expression. For example, a federal judge in
Virginia ruled that Norfolk school officials could prohibit a student from wearing a shirt
with the anti-drug message Drugs Suck. According to school officials and the federal
judge, the word suck was a vulgar term with sexual connotations that could be
prohibited by school officials.

When applying these varying legal standards, many courts have upheld school dress
policies, rejecting constitutional challenges by students. For example, the 5th Circuit has
upheld school-uniform policies in Louisiana (in Canady) and Texas. Many students have
lost when they challenged their suspension for wearing Confederate flag clothing. The
11th U.S. Circuit Court of Appeals recently upheld a school districts flat ban on the
Confederate flag.

However, sometimes students do prevail in dress-code disputes. Because the Tinker

decision emphasized that the students wearing the black armbands were engaged in
political speech the type of speech the First Amendment was most designed to protect
students wearing clothes containing political slogans and other messages can argue
that a reviewing court should apply the Tinker standard to protect their right to wear
political-slogan clothing.

For example, Michigan high school student Bretton Barber successfully obtained a
preliminary injunction in a federal district court that prevented school officials from
banning his T-shirt showing a photograph of President George W. Bush with the words
International Terrorist. U.S. District Judge Patrick J. Duggan ruled in October 2003 in

favor of the student because, he said, school officials had silenced Barbers expression
more out of a dislike of its message than fear that it might disrupt school.

In other words, Duggan applied the Tinker standard and determined that the school
officials failed to meet that test. In fact, the judge compared Barbers shirt opposing
President Bushs policies in Iraq to the students from the Tinker case who opposed the
Vietnam War.

Clearly the tension between students who support and those who oppose President
Bushs decision to invade Iraq is no greater than the tension that existed during the
United States involvement in Vietnam between supporters of the war and warprotestors, Duggan wrote, adding that students benefit when school officials provide an
environment where they can openly express their diverging viewpoints and when they
learn to tolerate the opinions of others.

What about hair?

Some schools impose neatness standards on students without referring to a dress code.
Or they might call these standards dress and grooming policies.

Basically, courts dont agree on grooming, hair length and color-of-hair cases. Challenges
to grooming policies have met with some but not great success. Most of the cases in
which lawsuits have been brought against schools have involved hair length (especially
sideburns in the 1970s) and earrings.

Some courts have upheld grooming regulations for students who wish to participate in
extracurricular activities, including athletics. One court, the 11th U.S. Circuit Court of
Appeals, justified grooming regulations as a reasonable means of furthering the school
boards undeniable interest in teaching hygiene, instilling discipline, asserting authority
and compelling uniformity (in Davenport v. Randolph County Board of Education,
1984).

In 1994 a federal district court judge in Nashville, Tenn., rejected a constitutional

challenge to a high school football coachs rule that students must cut their hair before
playing football.

Conclusion
Many school districts have turned to dress codes and uniforms to promote a better
learning environment. They argue that these policies decrease tensions, reduce socioeconomic differences and enhance safety. Others contend these dress codes are merely
Band-Aid solutions that do not improve safety. Further, they charge that these policies
infringe on students First Amendment rights of free expression.

The courts have divided over how to resolve dress-code disputes and reached different
results. The legal landscape remains muddled over dress codes and uniforms.