Published Online: April 23, 1997


Opinions on Dress Codes from Both Sides of the Courtroom

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To the Editor:

In "Litigating School Dress Codes," (Commentary, March 19, 1997), Richard Fossey and Todd A. DeMitchell demonstrate a poor understanding of our case, the U.S. Constitution, and the nature of censorship.

First, they misrepresent our intentions. In challenging the censorship of message T-shirts at South Hadley High School in Massachusetts, neither we nor our attorneys from the American Civil Liberties Union sought to "trivialize" the Constitution. We sought to enhance it, by defending the rights of high school students to wear a variety of messages, from the trivial to the profound, from the caring to the hateful.

We did not just stand up for our rights; we stood up for the rights of people whose views we happen to detest. Unlike Messrs. Fossey and DeMitchell, we learned at an early age that society does not need constitutional protection for expressions people in power like. We need it for expressions they dislike.

Second, the authors claimed that "a federal court ruled substantially in the district's favor." That is not true. The district court forbade the censorship of messages which, in the opinion of some teachers, might "demean" people on account of sex, race, sexual orientation, and so forth.

Censoring expressions because they might "demean" whole groups, the court ruled, constitutes "viewpoint discrimination." Thus, high school teachers in Massachusetts can no longer allow pro-homosexual-rights T-shirts but ban shirts that declare homosexuality to be a sin. We are surprised that Messrs. Fossey and DeMitchell should overlook this historic ruling, which was the first in the nation to strike down a "politically correct" anti-free-speech code at the high school level.

In the same opinion, the district court ignored a state law (and the First Amendment) to uphold another vague and overbroad provision which allowed school officials to ban any messages, no matter how ambiguous, that they consider "profane, lewd, or vulgar." We appealed, and the federal court of appeals asked the state's supreme judicial court to decide if the state's Student Freedom of Expression Act forbids the censorship of nondisruptive T-shirts simply because someone might consider their messages "vulgar." In July of 1996, our state's highest court ruled unanimously that the legislature meant to ban such censorship.

Third, Messrs. Fossey and DeMitchell seem to think that the First Amendment only exists to protect messages, like anti-war armbands, which, in the opinion of school censors, "involve serious political, social, or religious issues." But this, as Justice Oliver Wendell Holmes wrote in 1919, is plainly wrong. Freedom of expression belongs to everyone, including "poor and puny anonymities" who espoused a "creed of ignorance and immaturity." Messages may be trivial, offensive, or hateful, but they are constitutionally protected, because freedom of expression is never trivial.

Fourth, the authors claim that schools can ban "vulgarity" without infringing "important speech." Unlike most English teachers, they assume that the medium can be separated from the message. The U.S. Supreme Court rejected that assumption in 1972, when it upheld the right of a young man to wear an anti-draft slogan containing a four-letter word on his jacket in a courtroom. "[I]t is often true," Justice John Marshall Harlan wrote for the court, that "one man's vulgarity is another's lyric," adding that "we cannot indulge the facile assumption that one can forbid particular words without...suppressing ideas in the process."

Fifth, Messrs. Fossey and DeMitchell assume that educators can be trusted to suppress only trivial or vulgar thoughts. In 1972, however, the U.S. Supreme Court refused to trust even judges with that power.

Finally, the authors would have us believe that words have only one meaning, and that they (or high school teachers) can decree the meaning of each and every word. Like censors everywhere, they would impose their meanings on the rest of us, even though vulgarity, like beauty, is often in the eye of the beholder. Truth is, they would rather dictate than teach.

Well, their approach is now illegal in Massachusetts. Of course, the decisions in our case do not mean that "anything goes" in high schools. Teachers may still forbid obscene, libelous, or harassing messages or pictures on T-shirts, and may still conduct class discussion as they see fit. They may also suppress messages, including gang colors, when they cause material and substantial disruptions.

But teachers in Massachusetts may no longer ban nondisruptive messages on T-shirts because they find them personally offensive, think they might demean groups on account of their sex, race, etc., or fear they might upset someone in the community. As the Supreme Court has often held, no one has a right not to be offended.

Equally important, everyone, including teachers, has the right to tell students (and their parents) that the messages the students are wearing are trivial, offensive, or hateful.

So instead of blaming us, the courts, and the Constitution, Messrs. Fossey and DeMitchell should think harder about how public schools may best prepare students to become thoughtful, caring members of society. Perhaps they should instruct future teachers that while students have the same right as adults to wear trivial or offensive messages, teachers have special obligation to explain why that right should not be abused, and to show students how to object when others abuse it.

Jeffrey J. Pyle
Trinity College
Hartford, Conn.

Jonathan H. Pyle
Swarthmore College
Swarthmore, Pa.

To the Editor:

Jeffrey and Jonathan Pyle's response to our essay on school-dress-code litigation is a well-reasoned defense of their own lawsuit challenging a school dress code in South Hadley, Mass. They believe the U.S. Constitution should protect their right to wear T-shirts with vulgar messages in the schools. We do not.

Our essay made a broader point, however, one the Pyle brothers may have missed. As Jos‚ Ortega y Gasset wrote, "Nobility is defined by the demands it makes upon us--by obligations, not by rights." The Pyle brothers have a keen appreciation for their own rights. In the years to come, we hope they will be just as aggressive in trying to solve some of society's serious problems.

In a previous letter on this issue, ("Dress Code Commentary Not Entirely Accurate," April 9, 1997), Nancy Murray and Nan Stein sharply criticized our Commentary, asserting that it was flawed in three major ways: (1) the two plaintiff high school students "have a more secure grasp of constitutional principles" than we do; (2) we were wrong when we stated that the trial court in Pyle v. South Hadley School Committee ruled substantially in the district's favor; and (3) we "show little understanding of the Tinker standard" and even less about the way constitutional protections work.

We believe that a discussion about the parameters of student dress codes is important and welcome an extended dialogue. But we also believe that we should respond to the criticism and restate our central thesis.

The argument about who has a greater grasp of constitutional principles will not be joined. We are still struggling to make sense of the fundamental constitutional principles in this area; we are in good company. Several courts have wrestled with the constitutionality of dress and grooming codes and have arrived at conflicting conclusions. One court upheld the right of students to wear blue jeans to school while another court found that wearing sagging pants is not a constitutionally protected expression. In the sagging-pants case, the judge wrote: "Not every defiant act by a high school student is constitutionally protected speech" (Bivens v. Albuquerque Public Schools, 1995).

We confirm our position that the court in Pyle substantially found in favor of the defendant school district. The court upheld one of the plaintiff's challenges but found for the district on all other counts (two federal and one state). The court upheld the school's right to ban the two T-shirts over the objection of the plaintiff students.

A central point of our essay is that lawsuits over dress and grooming codes are a disservice to children. First, as Neil Postman wrote in The End of Education, one of the main purposes of public education "is the idea that students must esteem something other than self." Does our society cultivate selfishness when we send the message that a student's selection of lewd clothing to wear to school is constitutionally protected? As the court in Pyle noted, dress codes can protect students from "an environment of unrelenting winks, snickering, and sexual prodding." Even the expert witness for the plaintiffs in that case agreed that sexual innuendoes in an educational environment can make students uncomfortable and can interfere with their ability to study.

We believe that students are ill-served when the Constitution is invoked to protect any lewd statement that a student wishes to wear. As the U.S. Supreme Court in Bethel School District v. Fraser stated, "The First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket" (which carried the obscene anti-draft slogan). The school is a special place. On the whole, educators are better equipped than federal judges to decide what types of student expression are lewd, indecent, or offensive, regardless of whether the speech is disruptive. However, pure speech envisioned in Tinker should and must be protected.

Richard Fossey
Louisiana State University
Baton Rouge, La.

Todd A. DeMitchell
University of New Hampshire
Durham, N.H.

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