Legal
Student Dress Code Policies By Leonard D. Williams, PAGE Staff Attorney
H
ow one dresses often is an expression of his individuality and what he believes. Most educators are well aware that local school boards have the right to set dress code policies for students. Administrators can and should set boundaries on students’ attire. But just how far can they go? It is a complicated area of the law with few bright-line rules, but there are three significant factors that school officials should consider when drafting a dress code policy: (1) The reasonableness of the policy; (2) The relationship of the policy to a legitimate public school interest; and (3) The broadness of the policy. The seminal case on a student’s right to self-expression is Tinker v. Des Moines. In that case, the Supreme Court ruled that school boards can censor student speech only if the speech would have a substantial negative impact on school operations. School officials can implement any dress code policy so long as they’re able to show that it’s reasonable, easily understood and necessary for effective school operations. One of the first issues to consider when creating or revising a school dress code is its reasonableness. If the policy is unreasonable, it’s unlikely to withstand a legal challenge. For example, is it appropriate for a school to implement a policy that students may not wear T-shirts with profanity on them? Yes. Courts have consistently held that school officials have the authority to prohibit vulgar or obscene speech that may “interfere with the work of the school or impinge upon the rights of other students.” On the other hand, could a school have a policy that students may not wear clothing with “any offensive” statements or images? That’s not as clear. Generally, a August/September 2017
public school cannot ban clothing with messages it merely finds objectionable, nor should dress code policies be based on school officials’ personal preferences. It would help in the latter example if the school defined “offensive” and took steps to ensure it’s a community-based standard in order to overcome legal scrutiny. Societal and cultural norms also change over time, sometimes quickly. Dress that may have raised eyebrows in the not-too- distant past may be more acceptable today (or vice versa). This is especially important to keep in mind when contemplating how a dress code policy might affect certain groups, such as gender-variant students. At the very outset, when a dress code policy is proposed, policymakers should ask if it is reasonable in nature. There should also be a rational relationship between the dress code policy and a legitimate public school interest. This must be considered because students still have certain First Amendment rights to freedom of expression while they’re at school. In the former example, is there a rational relationship between banning clothing with profanity on it and providing a learning environment free from disruption? Many would answer yes. In the latter example, is there a connection between barring shirts with “any offensive” messages and providing a safe learning environment or any other legitimate
school objective? The case for that may be more challenging. If scrutinized, a school system must be able to show that dress code policy “A” is in furtherance of legitimate school objective “B.” Educators also should avoid drafting a dress code that is too vague, confusing or overreaching. If the policy unduly inhibits the exercise of First Amendment rights by students when balanced against the public school system’s interest in promoting the policy, then the code is probably invalid. In plain English, any dress code policy must be written in such a way that it can be easily understood and does not significantly restrict students’ First Amendment rights to self-expression. In the previous examples, the first policy can be understood easily; the second is open to interpretation. In the former example, the policy is specific and narrow — only shirts with profanity are banned. In the latter, shirts with “any offensive” messages are prohibited. It is arguably vague and overreaching, as this would ban shirts not only with profanity, but could potentially be used against clothing with political speech or expressions of religious beliefs. As a rule of thumb, students may be entitled to wear clothing that conveys societal, political or religious messages, even if unpopular. If you have questions about dress code policies or any other matter, please contact the PAGE Legal Department. n
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