School dress codes and First Amendment freedom of expression rights

United States of America has faced numerous issues with dress codes of students particularly in its public schools. School boards have shown concern regarding violence, discipline or lewd behavior resulting from certain items of clothing. Some have proved the connection of clothing to disturbing behavior. Some schools ban certain items of apparel such as bandanas, tank tops, halter tops, torn clothing, baggy pants, etc. while some school boards have adopted the compulsory uniform policies. Some schools have clear-cut specific policies like banning certain clothes or appearance while some have vague policies that generalize the situation by making clauses like, "clothes should conform to the standards of good taste and decency" (Bhatti, 1999). People have shown different point-of-views regarding policies related to dress codes. In all cases the dress code policy is the responsibility of states rather than federation. Different states and school boards have adopted different policies regarding dress codes in schools as mentioned earlier. There have been numerous lawsuits resulting from dress codes and uniform policies. In many cases students have won their right of freedom of expression under United States Constitution. In some other cases courts have upheld the restrictions imposed by school boards to allow smooth functioning of the educational system. Students' opinion in this regard has been mostly of defiance particularly with respect to same uniform for all students' policy. There have been many individual cases of lawsuits with particular appearance and item of clothing but the majorities of students do not show a proclivity towards uniforms. Parents' opinion however seems divided in this regard. Some heavily support and while some staunchly go against it. Even school boards differ on policies regarding dress codes. The debate on issues related to dress codes in the United States of America continues. This paper attempts to look at the important issues regarding general dress codes and issue of compulsory uniform with help of study of lawsuits filed in Court of Justice.

The Right in the Laws

American constitution provides its countrymen the right of freedom of expression under its laws. Americans are of the view that this right of freedom is not just related to speech and writing but they can express themselves in the form of clothes as well. They believe they can wear what they want and these are the rights the students want to exercise when they confront school dress codes that they think at times restricts their freedom of expression. In this regard, it would be necessary to mention the clauses invoked to support the point-of-view of freedom to wear what they want. The first important link in the legal book is the First Amendment. According to the First Amendment of U.S. Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (Hoge, Field, Foster & Nickel, 2002). It is not just the First Amendment that strengthens the right of freedom of an individual in the United States but another Amendment called Fourteenth Amendment also supports and guarantees all of its citizens' equality. The Fourteenth Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (Hoge, Field, Foster & Nickel, 2002). On the basis of these two Amendments the citizens support their freedom of expression rights. Many parents argue that strict dress codes and uniform policies restrict their children's rights under this Fourteenth Amendment. For example, religious or cultural beliefs are not allowed to be reflected, children with physical disabilities or large sizes face a number of problems with limited options and sizes available and most importantly students are suspended from school on the basis of dress codes and are denied their basic right of free public education. These are just a few accusation made by parents and students with respect to their rights awarded by the U.S. constitution.

Schools & Lawsuits

All the educators in U.S. have this fear of lawsuits coming their way. The lawsuits range from very frivolous to something very serious. Parents and students have been using their legal rights in the courts against, schools, educators, teachers and principals. Though statistics suggest the lawsuits against schools peaked in the 70s and 80s and now there are not as many suit as there used to be but still lawsuits are a cause of concern. Educators all over U.S. try to avoid all such lawsuits as much as possible as they cause unnecessary trouble at times.

Initially the lawsuits started with rights for special education and personal grievances but with the passage of time anything frivolous possible has been brought in its scope. Among all these lawsuits concerning injuries, fights, harassments, the lawsuits regarding freedom of expression have been quite common. Educators have been hit regarding dress codes in particular with the opinion that certain instructions regarding dress codes restrict children's freedom of expression.

Billups, in her 1999 article, has briefly mentioned a couple of cases filed against schools and educators. For instance, a high school girl in Jasper was asked by the teachers to hide here cross under the shirt because open display of religious symbols was going against the dress code of the school. The school was sued by the parents of the student for restricting her freedom of religious expression. Similarly, in another case, a 13-year-old student sued her school for suspending her for wearing black lipstick to school considering it against the acceptable dress code. Many of these suits have resulted in extra burden for school finances if no settlement is achieved out of the court. Its not just finances that drain away in such lawsuit but hey also take a lot of time of schools, principals, teachers and administrators. Emotional draining also takes place on part of principals also. Reputation of schools, principals and educators also come under attack in cases of lawsuits.

The issue of lawsuits of schools became so important that George W. Bush, the presidential candidate for 2000 elections, proposed laws for the protection of teaching staff from 'junk lawsuits'. At times lawsuits take place because educators were not aware of some legal considerations clearly. For this purpose many schools appraise their educators with different legal considerations using attorneys. Whatever the reasons be, the ideal solution to the problem is out of the court settlement and dealing with the case as amicably as possible to save time, money and repute.

Legal Battles

Dress codes at schools have resulted in a number of legal battles. There have been a number of lawsuits regarding particular dresses, appearance and even against uniforms. Students, parents or legal advisors should first properly study the dress codes statements of the school before filing a lawsuit because courts have given different decisions in different cases depending upon the words used in dress codes policies. There has not been a single pattern in the rulings. For different dress and different body modifications such as tattoos and piercing, outcome of cases has been different. In case of hair colors also different battles have been fought and students have won who changed their hair color to blue. In the famous 1972 Fourth Circuit Court of Appeals case, Massie v. Henry, student was granted a right to wear his hair the way he wants it. Most hair color cases get American Civil Liberties Union (ACLU) support and they do not make it to the court because ACLU intervenes and schools then respond positively. Body piercing and rings have however, not been most successful cases as schools put forward their stance of rejecting gang activities and symbols. In an Illinois case male students were restricted from using body piercing to discourage gang culture and court supported school's stance mentioning that piercing does not come under First Amendment freedom of expression protection and is rather an individual act. In a 1978 case of Ferra v. Hendry County School Board a male student was even prohibited from growing a mustache. In another case in Bethal School District v, Fraser, Supreme Court passed a verdict to restrict lewd, vulgar, offensive and uncivilized clothing in 1986. Mostly students who have excellent academic records to support their individuality have in many cases won their legal battles. Academic achievements help them in winning over judges and getting their point-of-view across. There are many cases that have been filed with respect to dress codes, uniforms and appearance of students. Here a couple of cases are being mentioned so that a picture can be portrayed regarding this issue.

Tinker v. Des Moines

Case of Tinker is one of the most famous cases filed with respect to dress codes. In fact, this one case became a torchbearer of sorts in terms of future lawsuit by students and parent and the decision taken by court. This was the case decided in 1969 and involved students who wore black armbands to protest the Vietnam War. The judge in this case granted students the freedom of expression given to them by First Amendment. U.S. Supreme Court Justice Abe Fortas used these words in the case, "It can hardly be argued that either students or teachers shed their rights at the schoolhouse gate... In our system, state-operated schools may not be the enclaves of totalitarianism. School officials do not possess absolute authority over their students" (Kakoulas, 2005). However, Supreme Court did not give this right to students in absolute terms mentioning that school can restrict certain aspects if they find them to disorder the normal functions of school and classroom life.

Newsom v. Albemarle County School Board, No. 03-1125 (4th Cir. December 1, 2003)

Dress codes at times can be confusing and may create problems in terms of their interpretation. Besides, many a times it has happened that implementation of dress codes have resulted in lawsuits. The case under consideration is of a boy, Alan Newsom, who wore a t-shirt bearing the initials "NRA" and depicting three gunmen. The dress code of the school, Jouett Middle School, restricts students to wear any dress having symbols or pictures related to weapons and violence. Alan went to the school wearing the t-shirt mentioned above in defiance of the dress code. Alan was once asked to wear the shirt inside out. On First Amendment grounds, Alan challenged this dress code in the courts requesting for a preliminary injunction with the help of National Rifle Association. Request for injunction preventing from enforcing the code was rejected by the district Court

Later Alan with support of some other organizations made an appeal to the Fourth Circuit. The fourth Circuit approved preliminary injunction prohibiting the school district from enforcing the dress code with regard to the student's t-shirt. Many questions were raised regarding court's decision to support this guy's stance on wearing t-shirts having violent symbols. Court in response mentioned that School could not prove that this t-shirt or any such item of clothing ever caused a violent problem or commotion at the school premises. This case depicts how dress codes issues can become complex.

Stephenson v. Davenport Community School District

Brianna Stephenson, a high school honor roll student, sued the school district for monetary damages when school made her undergo laser treatments for cleaning her skin of cross symbol tattoos on her hands. The treatment not only caused her money but she had to endure a lot of pain also leaving scars on her hands. The school had rules that prohibited the symbols, signs activities that can be considered gang related. Stephenson sued for her first amendment rights in United States District Court that rejected her appeal. Later her appeal was accepted in the Eighth circuit and court ruled the demands of school unconstitutional in the light of vague rules, generalized and unspecific rules regarding student conduct and dress code. A cross symbol can be a sign of faith to one and ir could mean something else to some other person. In the absence of clear-cut guidelines of what is acceptable and what is not the decision went against the school. The school district had to pay for damages in this case, after which school had to change its policies. This case was a major development for those students who use tattoos as a form of expression. As in Massachusetts and South Carolina, tattoos have been legally accepted as a means of expression before which it was considered a taboo in states like Massachusetts.

The Polk County School Case

The school bard of Polk County, Florida decided to enforce uniform for K-8 students in the year 1999. The school board asked its students to follow a mandatory uniform policy and clearly mentioned that those who violate the uniform rule would get suspended. The school even went to the length of warning parents for encouraging their children in violating the new rule. The new dress code required students to wear same colors and style of clothes with the freedom of little variations for example short or long sleeves, navy blue or white collar, polo or oxford shirt, dark blue black or Khaki pants or skirts etc. The dress code also allowed buttons, armbands or other symbols for expressing them but strictly banned different sorts of phrases, words or emblems. The exceptions of mandatory uniform were given to boy or girl scouts, new students for a certain period, and those have objection considering their religious beliefs.

More than five hundred families filed a class action lawsuit with the help of am attorney.

They hauled a number of accusations on school board. They accused board of shifting its focus from their main concern that is education to that of uniforms. They objected to restricting students from making a choice for their own clothes with respect to their individuality, gender, religious belief, ethnic background etc. Their view was that parents have greater right to exercise control over what children would wear rather than school board and uniforms have become an extra burden of clothes for them, as they have to buy them along with the regular clothes.

Once school started there were many cases that did not explicitly violated rules but were caught for small deviations and were identified as loaner cases. Different deviations were found such as using banned Spandex material for pants or the pants were faded, shirts with patriotic slogans and even stickers or buttons with protest slogans like, "Uniforms stink!" And "it's not what you wear, it's what you do."

This Polk County can be considered a case study to identify issues related to enforcement of school uniforms. A whole analysis of this and other such cases can help in formulating policies in future.

Conclusion

The whole issue of school dress codes and uniforms has been a touchy topic with different views coming from, parents, students, school board, and even officials like district governors and presidents. Different interpretations of Laws and school policies have resulted in a number of lawsuits. Some schools have enforced uniforms while some follow a free dress code policy with some restrictions. Studies conducted also do not give clear-cut inferences with regard to the effectiveness of uniform policies. If we also look at the Court cases then again we do not have a single pattern supporting a particular point-of-view. It is generally observed that a good student who performs well in school and extra curricular activities has a greater chance of winning in the end no matter what he is wearing, the grungy clothes, multicolored hair and body with piercing and tattoos. This whole debate of dress codes and uniforms shows us that students and parents must be consulted and their point-of-views must be heard before making any decision regarding the dress codes. Also, counselors should actively play their role while confronting students and parents for violation of rules so that all matter can be sorted out of the court in an amicable way. Parents, students and school board must co-ordinate and support, and respect each other's point-of-views.