Litigating School Dress Codes
|Are the courts playing 'trivial pursuit'?|
Twenty-eight years ago, the U.S. Supreme Court invoked the majesty of the Constitution and came to the aid of the Tinker children--John, Jane, and Sarah. Des Moines, Iowa, school officials had sent the children home from school for wearing black armbands in protest of the Vietnam War. The children sued, arguing that the First Amendment gave them the right to express themselves in this quiet and dignified way.
In a 1969 decision, the high court agreed with the Tinkers. Children do not shed their constitutional rights at the schoolhouse door, the court wrote in Tinker v. Des Moines Independent Community School District. Unless their expression threatens to disrupt the school environment, children can speak their mind.
Over the years, courts have invoked Tinker many times in cases involving a schoolchild's right to free expression. Unfortunately, few of these cases address issues as noble as the one the Tinker children brought forward. Indeed, a large number of these suits have been trivial disputes over school dress codes and grooming standards.
Only a year after the Tinker decision, a New Hampshire 6th grader persuaded a federal court that he had a liberty interest in wearing bluejeans to school, even though he had violated the school's dress code. Although the judge admitted that the constitutional interest was minor, he ruled that the school district had not justified its infringement on a child's right to choose his own pants.
In the 1970s, schoolchildren began marshaling Tinker in lawsuits attacking school hair-length regulations. On this issue, the courts disagreed. Some courts struck down hair-length rules, holding that students have a constitutional right to control their appearance. Other courts sided with school authorities, and some said that haircut disputes are too trivial to occupy the courts' time. The Supreme Court refused invitations to review these cases, perhaps signaling that it too considers the issue to betrivial.
Although haircut litigation is by no means over (the Texas Supreme Court ruled on the issue a short time ago), a related form of litigation has assumed more prominence. In the past 10 years, students have been suing over the constitutional right to wear distinctive clothing, clothing which, in the students' view, conveys some constitutionally protected expression.
In 1987, students sued an Ohio school district for refusing to allow them to attend a prom dressed as a person of the opposite sex. A federal court found no First Amendment violation, however. In the court's view, schools have the authority to enforce dress regulations that teach community values and promote school discipline.
|The constitutional right to engage in nondisruptive free speech has been invoked in support of demands to wear earrings, sagging pants, and T-shirts with lewd messages.|
The same year, an Illinois student challenged a school rule, intended to stop gang activity, against males' wearing earrings. Like the Ohio cross-dressers, the plaintiff lost this case as well. The court concluded that the school's goal, control of youth gangs, justified any constitutional infringement.
Since then, students have challenged a school rule banning clothing that identifies a professional sports team, a prohibition against clothes advertising alcohol, and a school penalty against a student who wore a T-shirt proclaiming that "Drugs Suck." Recently, a student asserted a constitutional right to wear sagging pants to school. (A cultural expression, he argued.) In all cases, the complaining students invoked their First Amendment right to free speech.
How have these cases been resolved? A California court ruled that a school district could prohibit high school students from wearing clothing with athletic-team insignia, based on evidence that such clothing was related to gang activity. The district's ban was struck down in the elementary schools, however, where the court found no evidence that such clothing caused any disruption. A federal court in Oklahoma recognized a student's right to advertise alcoholic beverages on her clothing, but a federal judge in Virginia upheld the school prohibition against a "Drugs Suck" T-shirt. And a New Mexico judge ruled that wearing sagging pants did not constitute speech for First Amendment purposes and sustained the district's dress code.
Many of these lawsuits are trivial to the point of absurdity. But perhaps no dress-code challenge is more absurd than a case brought by the Pyle brothers, two high school students from South Hadley, Mass. They argued that they had a constitutional right to wear T-shirts to school that bore these slogans: "Coed Naked Band; Do It to the Rhythm" and "See Dick Drink. See Dick Drive. See Dick Die. Don't Be a Dick." When the school district disagreed, the brothers sued in federal court.
A federal trial court ruled substantially in the school district's favor. In the court's view, South Hadley's dress code, prohibiting clothes with lewd or vulgar messages, was constitutionally permissible. However, the federal court's decision was essentially nullified by a Massachusetts state court ruling. In an independent decision involving the Pyle brothers' dispute, the state court ruled that a Massachusetts statute guarantees students the right to free expression at school, even if the expression is vulgar.
Jurisprudence on students' free-expression rights has traveled a long road since the Supreme Court's Tinker decision in 1969. The court's guiding principle, that students have a constitutional right to engage in non-disruptive free speech, has been invoked in support of student demands to wear earrings, sagging pants, and T-shirts with lewd messages. Where is this litigation heading?
We see no clear trend emerging with regard to these lawsuits. Although some courts consider dress codes and haircut controversies to be too trivial to occupy their time, others give these disputes their utmost attention. And a number of courts have ruled that schoolchildren have a constitutional right, protected by the First Amendment, in their hair and dress preferences.
|Dress-code litigation subverts a primary goal of public education, which is to instill a decent respect for community values and civil speech.|
In our opinion, investing petty disputes over students' dress and appearance with constitutional dimensions has at least three negative consequences. First, it trivializes the Constitution and the courts for judges to analyze a student's right to wear a "Coed Naked" T-shirt to school under principles adopted in the Tinker decision, a case involving serious political speech.
Second, litigation over student dress codes discourages local educators from making the common-sense decisions we expect them to make concerning children's welfare. Whether a lawsuit has merit or not, the possibility of a civil rights suit over a dress-code provision may intimidate school administrators from adopting rules designed to maintain a safe and orderly learning environment. For example, how eager will South Hadley, Mass., school authorities be to adopt a new student-conduct regulation, having experienced protracted litigation over their efforts to ban "Coed Naked" T-shirts?
Third, dress-code litigation subverts a primary goal of public education, which is to instill a decent respect for community values and civil speech. What message do children learn about civic responsibility when they discover that their preferences for earrings, sagging pants, or lewd T-shirts are entitled to the same constitutional scrutiny that the Tinker children received when they protested, with dignity and courage, the Vietnam War?
We believe that students and schools would be best served if the courts would adopt this simple policy toward school dress and grooming disputes. In the spirit of Tinker, courts should recognize students' constitutional right to express themselves on religious, political, and social issues while at school, so long as the speech is civil and nondisruptive. On those rare occasions when a dress code impinges on an important right of free expression (religious garb, for example), then the courts should intervene.
On the other hand, courts should not step in to aid a student who claims a legal right to wear distinctive dress at school, adopt a particular hairstyle, or engage in speech that is lewd, uncivil, or trivial. Unless a student's dress or grooming preference involves a serious political, social, or religious issue, the courts should summarily dismiss these cases with little analysis or comment.
Richard Fossey is an associate professor of education at Louisiana State University in Baton Rouge, La. Todd A. DeMitchell is an associate professor of administration and supervision and associate chair of the department of education at the University of New Hampshire, Durham, N.H. This essay is adapted from a longer article to appear in the Journal of Law and Education.