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Published in Print: May 21, 2008, as U.S. Appeals Court Backs District’s Rules on School Uniforms
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U.S. Appeals Court Backs District’s Rules on School Uniforms

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A federal appeals court has upheld a school district’s policies permitting individual schools to decide whether to require students to wear uniforms.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 on May 12 that the policies of the Clark County, Nev., school district, which includes Las Vegas, do not violate the First Amendment rights of students.

“The district’s uniform policies limit only one form of student expression (while leaving open many other channels for student communication),” and they are “consistent with the district’s goals of creating a productive, distraction-free educational environment for its students,” said the majority opinion by U.S. Circuit Judge Michael Daly Hawkins in Jacobs v. Clark County School DistrictRequires Adobe Acrobat Reader.

The case involves a 2003 policy that added to the basic dress code rules for the 310,000-student district by allowing individual schools to establish more-stringent policies on student attire if those schools’ parents supported the idea in surveys.

A typical school policy requires khaki pants and solid-color polo shirts or other shirts with no messages permitted except a school logo.

The policy was challenged by the American Civil Liberties Union of Nevada on behalf of several students, including one high school student who was repeatedly suspended for wearing religious messages on her clothing. Some students in the lawsuit objected to the “forced uniformity” of the policy or maintained that their religious beliefs required them to embrace their individuality.

A federal district court largely upheld the district’s uniform policies in a summary judgment.

Meeting the Test

The 9th Circuit majority said that the school uniform policies were viewpoint- and content-neutral, and that under an “intermediate scrutiny” standard of review for First Amendment questions, the policies passed muster as long as they furthered an important governmental interest unrelated to the suppression of free speech and had only incidental restrictions on protected speech.

The court said the Clark County district met that test because school officials submitted affidavits saying that the policy had helped improve student achievement, promoted safety, and enhanced the school environment.

Citing a “Manual on School Uniforms” put out by the U.S. Department of Education in 1996, under President Clinton, the majority further said that the federal department has “acknowledged the efficacy of school uniforms.” That was the same year that Mr. Clinton promoted school uniforms in his State of the Union address. The current Bush administration has not been as outspoken on the issue, and the efficacy of uniform policies has been questioned by some education researchers. ("Uniform Effects?," Jan. 12, 2005.)

A Dissent

Writing in dissent, U.S. Circuit Judge Sidney R. Thomas said the majority had failed to properly apply the U.S. Supreme Court’s decision in Tinker v. Des Moines Independent Community School District, the 1969 case upholding the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

Noting that the uniform policies prohibit “all messages on clothing, except for messages that support the school,” Judge Thomas said: “Confining messages to pro-government content cannot be said to be viewpoint- or content-neutral.”

Bill Hoffman, the general counsel for the Clark County district, said 50 of the district’s 312 schools have enacted parent-supported uniform policies.

“The court said kids have other ways of expressing themselves,” Mr. Hoffman said, pointing to a passage in the majority opinion that said students could still have conversations with their peers, publish articles in school newspapers, and join student clubs.

Allen Lichtenstein, the general counsel of the ACLU of Nevada, said he found the reference to school newspapers as a forum for unfettered student expression ironic, since the Supreme Court has ruled that such publications are ultimately under the control of school authorities.

He said the plaintiffs would seek a rehearing before a larger panel of judges on the 9th Circuit court.

“By definition, a uniform is communicative,” Mr. Lichtenstein said. He also scoffed at the majority’s conclusion that school logos permitted as part of the uniforms were only meant to be, as the court put it, “an identifying mark, not a communicative device.”

“If logos don’t have any communicative element,” Mr. Lichtenstein said, “try telling Coca-Cola or McDonald’s that their symbols don’t communicate anything.”

Vol. 27, Issue 38, Page 8

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