A recent report from the Government Accounting Office reveals that almost all schools have dress codes. Although critical of dress codes, the study noted that about 90% of policies limit what females can wear, while roughly 69% impose restrictions on males.
This column highlights the importance of up-to-date dress code policies to reduce distractions and enhance learning.
After briefly reviewing the Supreme Court’s monumental 1969 decision in Tinker v. Des Moines Independent School District, which established guidelines for student dress, the column examines Guzick v. Drebus, which added an important clarification. The column then offers proactive tips so SBOs can keep their student dress code policies up-to-date to avoid controversy and potentially costly litigation while ensuring smooth operations.
Although some boards have adopted uniform policies, because such a discussion involves other issues, this column focuses solely on dress codes.
…parents typically support their children in challenging dress code policies, so policy teams should seek their input.
The Courts and Student Dress
Student dress first attracted national attention in Tinker when students wore black armbands to school, protesting American involvement in Vietnam during the social upheaval of the 1960s. After the federal trial court in Iowa denied students’ claims that the two-day-old board policy banning black armbands violated their First Amendment free speech rights, the Supreme Court reversed in their favor.
Explaining that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Supreme Court sought to balance student rights against educator needs to preserve order and discipline. The Court reasoned that in order to limit student dress, educators must prove that their policies are motivated by “more than a desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly, where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”
A year after Tinker, in Guzick, a case in which the Supreme Court refused to hear an appeal, the Sixth Circuit upheld a dress code policy from Ohio, where racial tensions led educators to ban students from wearing items of dress supporting causes or bearing messages unrelated to school activities. Because officials enforced the long-standing policy uniformly, the court upheld it insofar as it helped officials to eliminate racial tensions in the school.
Following Tinker and Guzick, courts uphold dress codes if students have adequate notice of clear school policies. As SBOs and their teams grapple with safeguarding student expressive rights in dress while seeking to reduce, if not eliminate, distractions, they may wish to consider the following suggestions.
Policy teams should include representatives of key stakeholders such as the SBO, a board member, the board attorney, building-level administrators and teachers, a school counselor, parents, and high school students.
In a recent case from Michigan, the Sixth Circuit agreed that officials could prevent a third-grader from wearing a baseball hat depicting “a white star, a white image of an AR-15-style rifle, and the all-caps phrase, ‘COME AND TAKE IT’ (‘the Hat’)” due to a nearby school shooting that killed four people. This case demonstrates that parents typically support their children in challenging dress code policies, so policy teams should seek their input.
While not wishing to afford them a “heckler’s veto,” leaders would be wise to consult parents to gauge their support when revising policies because such disputes can unnecessarily consume great deals of time, money, and energy if families are uncooperative.
The Specifics of Dress Code Policies
Dress code policies should:
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Include clear, concise language identifying what students can wear. Because the biggest threats to dress policies are challenges for being vague and/or over-broad, they should avoid such statements as “students must dress neatly.” If, for example, districts want students to wear clothing that covers their shoulders or bare midriffs or set length limits for skirts and pants or shorts, they should say so explicitly.
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Set limits carefully so that if they ban political or other forms of expression such as promoting the use or sale of drugs, tobacco, and/or alcohol, policies should specify that students can only wear clothing displaying their schools’ colors, the name of their sports teams, and/or perhaps college and professional teams.
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Use expansive terms such as “this includes...but is not limited to…” because no policy can cover every student dress issue. Courts tend to defer to educators when dealing with otherwise well-crafted, up-to-date expansive policies because they recognize that the fact-specific nature of disputes and how rapidly dress fads change make it almost impossible to set precise limits.
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Include a range of sanctions for first, second, and later offenses. For instance, a first violation might be to turn one’s shirt inside out or to wear something else. A second offense might result in detention, while later sanctions might include conferences with parents whose children are uncooperative.
Policies should be reviewed annually to ensure they are up-to-date. Given how rapidly student dress fads change, recent case law can provide guidance to keep schools running effectively.