State law does not give students the right to choose their mode of dress. Thus, the matter of student dress and grooming is at the discretion of local school districts. A common question remains: Can school districts have a dress code that discriminates on the basis of gender?

Pay close attention to Chapter 4, especially the Tinker case which highlights that “conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech” (p. 65).

In your discussion post,

• Present an argument to the question, “Can school districts have a dress code that discriminates on the basis of gender?” using the text and one outside source to support your explanation.
• Refer to at least two statements from the Linking to Practice Do and Do Not suggestions in Chapter 4 (p. 70) to further explain your rationale for your dress code argument.

Student Dress

As of 2008, 22 states authorized schools and districts to implement dress code and/or uniform policies (Colasanti, 2008a). The U.S. Supreme Court has not ruled on a dress code case and, in spite of several opportunities, seems at this point unlikely to do so. However, since the mid-1980s, and particularly in the wake of the school violence outbreak in 1999, lower courts have consistently empowered school administrators to exercise a great degree of control over student dress (DeMitchell, Fossey, & Cobb, 2000). Unless specifically prohibited by state law (Massachusetts, for example, prohibits dress codes except for health and safety reasons), it can be assumed that school districts may adopt reasonable and viewpoint-neutral student dress codes. For example, the Sixth Circuit Court recently indicated that three criteria were critical in determining the legality of school dress code policies: (1) a higher level of scrutiny is appropriate only for viewpoint-specific cases, (2) school officials have greater discretion in prohibiting obscene, vulgar, and/or disruptive clothing, and (3) even more discretion is allowed if the speech or dress can be considered school sponsored (Castorina v. Madison County School Board, 2001; also see Blau v. Fort Thomas, 2005, for similar logic).

Controversial dress usually involves symbolic expression such as choice and style of wearing apparel or T-shirt messages. Unfortunately, guiding case law is significantly intertwined and does not provide clear guidance. Courts have supported bans on “sagging pants” (Bivens v. Albuquerque Public Schools, 1995), the wearing of “Drugs Suck” T-shirts (Broussard v. School Board of City of Norfolk, 1992), and the banning of Marilyn Manson T-shirts (Boroff v. Van Wert City Board of Education, 2000). Clothing or symbols linked to gang membership can usually be banned when the district can demonstrate a gang problem or when the dress or symbol can be linked with disruptive behavior (Chalifoux v. New Cancy Independent School District, 1997; Jeglin v. San Jacinto Unified School District, 1993).

Other courts have supported student rights. The Western District Court of Oklahoma, in recognizing that the banning of wearing apparel advertising alcoholic beverages was not unconstitutional, held that a school district ban on apparel with alcohol symbols did not apply to a senior class T-shirt that read, “The Best of the Night’s Adventures are Reserved for People With Nothing Planned.” This slogan was for Bacardi rum (McIntire v. Bethel School District, 1992). In another example of supporting student rights, the Third Circuit Court held that a Jeff Foxworthy T-shirt did not violate a “racial harassment policy” established in response to a history of racial disturbances at a high school (Sypniewski v. Warren Hills Regional Board of Education, 2002).

A similar line of reasoning was applied by the Eastern District Court of Michigan to a T-shirt with a message critical of President George W. Bush. Using Tinker v. Des Moines (1969), the court held that the banning of the shirt based on an unsubstantiated fear that a minority viewpoint may create opposition does not justify a preemptive ban on a clearly political message (Barber v. Dearborn, 2003). Following the same logic of lack of evidence of disruption, the District Court of Minnesota ordered an injunction barring a school principal from banning a “straight pride” sweatshirt in a Minnesota high school. The court refused to state that such a message could not be legally banned. But, absent any evidence that the decision was based on a reasonable belief of disruption other than a few complaints from students, the court had no option but to issue the injunction (Chambers v. Babbitt, 2001).

The concept of school uniforms has also gained acceptance and judicial support. Numerous states allow districts to implement school uniform policies, but no state requires that districts do so (Colasanti, 2008a). Proponents believe school uniforms (1) decrease violence, (2) prevent gang-related attire, (3) instill discipline, (4) help students concentrate, and (5) aid in the recognition of intruders. Regardless of the efficacy of these benefits to schools, courts have consistently supported school uniform policies. For example, a district court in Texas concluded that choice of clothing in school is not protected by the First Amendment (Littlefield v. Forney Independent School District, 2000). In a similar decision, the Fifth Circuit Court concluded that school boards, not the federal courts, have the authority to decide what constitutes appropriate dress in schools (Canady v. Bossier Parish School Board, 2001).

Linking to Practice

Do:

Create opportunities for open discussion with parents, community members, teachers, and students regarding appropriate school attire.

Honor diverse views. Beware of viewpoint discrimination.

Maintain accurate records documenting disruption created by various symbols. These records may be invaluable in justifying decisions to ban certain expressive items.

Develop policies that address clothing items with symbols that are profane, vulgar, sexually suggestive, or advocate alcohol, tobacco, and other drug use. These policies are almost always defensible.

Consider dress code and uniform policies as part of a comprehensive plan to promote a safe, orderly, and positive school culture.

Understand that dress code and uniform policies are not “silver bullets” to solve all school discipline and safety concerns.

Objectively evaluate the effectiveness of dress code and uniform policies.

Beware of dress code and uniform policies that can become troublesome enough (significant enforcement time, student time out of class, disagreements among faculty, and parent dissatisfaction, to name a few) to outweigh the potential or actual benefit gained from having the policy in the first place.

Do Not:

Overreact.

Suppress the peaceful expression of minority viewpoints simply because some individuals do not wish to hear the message.

Wait for complete chaos before banning disruptive speech.

Reference

Stader, D. L. (2013). 

Law and ethics in educational leadership 

(2nd ed.). Retrieved from https://www.vitalsource.com