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Overview
With few exceptions, student dress (attire)
and appearance remain consistent “issue producers” in this
nation’s public school systems. Not a school year passes without
public school administrators encountering problems caused by
something worn by a student. Over the years, hairstyles, dress,
armbands, buttons, flags and other insignias, and jewelry have
produced numerous disciplinary situations in public schools.
More recently, however, controversies have arisen involving
controversial T-shirts. Shimmel (2005). The subject of this
commentary is to explore this issue area.
Codes of Student Conduct. Most
public school systems have policies and rules governing student
dress and appearance. More often than not, these policies and
rules include T-shirts and are applicable to all students while
they are in school and in attendance at school sponsored
functions.
As a general rule, specific policies and
rules governing T-shirts can found in a school system’s Code
of Student Conduct, where prohibited items (e.g.,
wearing T-shirts bearing gang-related symbols; or containing
obscene and vulgar words; or promoting harmful activities; or
displaying threatening symbols) are separated from
permissible exceptions (e.g., T-shirts worn on
special occasions, such as “school spirit day”). In recent
years, some school systems have included a mandatory category
(e.g., uniforms) in their student appearance codes of
conduct. Bosher, Kaminski, and Vacca (2004)
First Amendment Issues. Nowhere in
the United States Constitution is the word “expression” used. In
the 1960’s, however, the federal courts created a substantive
right of “free expression” by expanding the First Amendment’s
free speech clause. Similarly, while the words “dress” and
“appearance” are not specifically included in the United States
Constitution’s First Amendment, they can be characterized and
included as forms of “speech” and “expression.” Essex (2002) The
United States Supreme Court in Tinker v Des Moines (1969)
“recognized the First Amendment free speech rights of public
school students.” Russo (2004) It is within this First Amendment
context that most issues involving student T-shirts can be
found.
Privacy Issues. In addition to
possibly implicating basic First Amendment protections, so too
can T-shirts, as a form of student dress and attire, be
characterized as involving personal privacy (e.g., a
student’s right to freely select what she/he shall wear to
school). However, since student speech and expression rights
have never been declared absolute, experts in school law
consistently remind us, “[t]he great weight of judicial
authority supports the proposition that a board of education
possesses the authority to regulate pupil dress and personal
appearance if they become so extreme as to interfere with the
school’s favorable learning environment.” Alexander and
Alexander (2005) Moreover, “[e]ven in situations where students’
rights to govern their appearance have been recognized, the
judiciary has noted that attire can be regulated if immodest,
disruptive, or unsanitary.” McCarthy, et al. (1998)
School Board Authority. Today’s
public school officials do not have limitless discretion to
suppress student expressive activities. What is more, school
officials know that style and personal taste are not the bases
upon which to build a rationale for drafting and implementing
sound student dress and appearance policies and rules. The
courts have consistently held that such policies and rules must
be justified as necessary to: (1) protect the learning
environment from disruption, (2) keep the learning environment
free from threatening, harmful, and dangerous activities, and
(3) establish proper decorum. Vacca and Bosher (2003)
Locus of Implementation. The
enforcement of student T-shirt policies and rules (along with
carrying out disciplinary procedures when necessary) more often
than not is the responsibility of public school principals.
Vacca and Bosher (2003) As a general rule, school principals are
granted discretion to interpret and apply the specific policy or
rule. In doing so, however, they are often faced with the
following questions and subsequent choices. When is something
worn or displayed on a student’s T-shirt intended to convey a
political message? When is it intended simply to express a
“personal opinion” or “personal belief”? When is it intended to
provoke a reaction from others? When can something depicted on a
T-shirt be characterized as expressing a “personal moral
conviction”? When does it contain a distasteful
characterization? When does it contain words or pictures that
are hateful, or obscene, or pornographic, or threatening, or
harmful? When does something said on a T-shirt encourage
disruptive behavior or promote illegal activity? Does it matter?
Should it matter? In most public school systems it does matter
and the building principal is vested with authority to decide
what, if anything, must be done?
Case Law
The United States Supreme Court and the
courts below it have held that school policies and rules
governing student appearance (including student T-shirts) cannot
be overbroad and vague, and that public school officials do not
have limitless discretion to suppress student speech.
Chandler v McMinnville School District (9th Cir.
1992). The most consistent standards applied by the courts in
resolving student T-shirt controversies are the: (1) Tinker v
Des Moines (1969) standard of “material and substantial
disruption,” (2) Bethel School District v Fraser (1986)
“lewd, vulgar, or profane language” standard, and (3)
“legitimate pedagogical concerns” standard created in
Hazelwood v Kuhlmeier (1988). What follow are four
randomly selected examples of recent case law on point.
In Sypniewski v Warren Hills (2002),
a student was suspended from school for wearing a T-shirt making
fun of “rednecks.” The school system had a policy prohibiting
wearing “symbols implying racial hatred and prejudice.” The
suspended student went to federal court where the court
ultimately ruled in his favor. In the court’s view, school
officials could not show where the wearing of this particular
T-shirt caused substantial interference (material disruption)
with either school operation or with the rights of other
students.
Brandt v Board of Education (2004)
involved students in a program for the gifted. The students
wanted to create and wear an official class T-shirt. Even though
school officials rejected their proposed design, they made the
T-shirt and wore it to school. Determining that the message
(including a caricature) on the T-shirt was “offensive” and as
such violated the school system’s dress code, the school
principal set restrictions on wearing the T-shirt while at
school. Subsequently, parents and students went to federal court
claiming that the principal’s restrictions violated the First
Amendment. The court dismissed their complaint. In the court’s
view the evidence demonstrated that the principal’s actions were
based on “reasonable pedagogical concerns.”
That same year, in Harper v Poway
Unified School District (2004), a high school student
unsuccessfully argued that a message displayed on his T-shirt
(expressing an objection to homosexuality) was “religiously
motivated.” The school board had a policy prohibiting “violence,
derogatory messages, or hateful behavior” directed toward an
individual based on his/her “sexual identity.” In the court’s
opinion the policy was not vague and it definitely applied to
the T-shirt statement involved in this particular case.
More recently, in Griggs v Fort Wayne
School Board (2005), a student was disciplined for wearing a
T-shirt in support of the United States Marine Corps. On the
T-shirt was, among other things, the picture of an M-16 rifle.
Applying a school system policy prohibiting students from
wearing apparel depicting “symbols of violence,” the student was
disciplined. The student took his case to a federal district
court where he prevailed. The court did not see where the
T-shirt caused disruption at school. What is more, no other
student had complained about the T-shirt message. In other
words, in the court’s opinion the school system policy as
applied to this particular T-shirt served “no legitimate
pedagogical concern.”
Policy Implications
As stated at the outset of this commentary,
student T-shirts have been and continue to be a major source of
disciplinary issues in public schools. Experience has taught
school officials, principals, and classroom teachers that a
proactive stance must be taken to prevent possible disruption of
the school’s learning environment. At the same time, however,
because students “do not shed their First Amendment right to
free expression at the school house gate,” Tinker v Des
Moines (1969), the possibility of a student T-shirt problem
morphing into a constitutional issue is a reality. It therefore
follows that policies and rules, as well as implementing
procedures, specifically written to cover T-shirts, must be
drafted with care and caution. What follow are a few simple
suggestions to consider when formulating a T-shirt policy.
Local school boards must make it clear
that:
- The
intent of the school board is to respect student rights.
However, student “free speech and expression” rights are not
absolute while in attendance at school and at school
sponsored functions.
- The
school board is vested under state law with the authority to
decide what is or is not appropriate student dress and
appearance on school property and at school sponsored
functions.
- T-shirts
are included in student dress and attire policies.
- Specific
types of T-shirts (a list of specific examples must be
included) will not be tolerated on school grounds or at
school- sponsored activities.
- School
principals are delegated the school board’s authority to
decide what is or is not an appropriate T-shirt worn by a
student.
- School
principals are vested with school board’s authority and
discretion to take immediate and appropriate disciplinary
action if and when the T-shirt policy is violated.
One final question is in order. Why not
enact a policy completely banning T-shirts of any type? Some
school systems have done so. Maybe it would cut down on the time
taken away from instruction and education, currently consumed by
student disciplinary matters? But, is a complete ban the least
burdensome alternative, or will it simply produce a different
set of problems? In my opinion it would be wise to do some
research before automatically selecting this approach.
Resources Cited
Alexander, Kern and Alexander, M. David,
AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (Thomson-West, 2005)
Bethel School District v Fraser, 478 U.S.
675 (1986)
Bosher, William C., Jr., Kaminski, Kate R.,
and Vacca, Richard S., THE SCHOOL LAW HANDBOOK (ASCD 2004)
Brandt v School Board, 326 F.Supp.2d 916
(D. Ill. 2004)
Chandler v McMinnville School District, 978
F.2d 524 (9th Cir. 1992)
Essex, Nathan, SCHOOL LAW AND THE PUBLIC
SCHOOLS, Second Edition (Allyn and Bacon, 2002)
Griggs v Fort Wayne School Board, 359
F.Supp.2d 731 (N.D. Ind. 2005)
Harper v Poway Unified School District, 345
F.Supp.2d 1069 (S.D. Cal. 2004)
Hazelwood v Kuhlmeier, 108 S.Ct. 562 (1988)
McCarthy, Martha M., Cambron-McCabe, and
Thomas, Stephen B., PUBLIC SCHOOL LAW, Fourth Edition (Allyn and
Bacon, 1992)
Russo, Charles J., REUTTER’S THE LAW OF
PUBLIC EDUCATION, Fifth Edition (Foundation Press, 2004)
Shimmel, David M., Freedom of Expression.
In Lane, Kenneth E., et al., THE PRINCIPAL’S LEGAL HANDBOOK,
Third Edition (ELA, 2005)
Spniewski v Warren Hills Regional Board of
Education, 307 F.3d 243 (3rd Cir. 2002)
Tinker v Des Moines, 393 U.S. 503 (1969)
Vacca, Richard S., and Bosher, William C., Jr., LAW AND
EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS, Sixth
Edition (LexisNexis, 2003)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
