As school swings back into session, a familiar cry rises up from young voices across the land:
“Do I really have to wear that?!”
Dress codes have long prompted debates among not just the students who are forced to abide by them, but by the adults who are asked to justify them. Proponents praise the simplicity of solid, straightforward color schemes and claim that uniforms reduce student-led ridicule over brands and style— placing high- and low-income populations on equal footing in the classroom. On the other hand, many oppose the imposition of a dress code on the grounds that it stifles creativity, limits student expression, and infringes on students’ First Amendment rights.
In addition, concerned that rules governing modesty are almost always directed at female students, many opponents decry student dress codes as unfair institutional mandates that require “immodestly” dressed females to go home and change.
Background of the backlash
Dress codes and modesty rules have existed for centuries and historically were not limited to school settings. Nonetheless, the dress code debate remains prevalent within academic environments, beginning with the first official legal challenge in 1968.
During that divisive period in American history, several high school students in Iowa came to class wearing black arm bands in protest of the ongoing conflict in Vietnam. They were ordered to remove them and were eventually sent home for violating the school’s dress code.
After winding its way through the federal courts, the case made its way to the Supreme Court, which held in favor of the students in Tinker v. Des Moines Independent School District, concluding:
“In order for the state . . . to justify prohibition of a particular expression of opinion, a student must engage in a forbidden conduct that would materially and substantially interfere with the requirements of appropriate discipline in the operations of the school.”
From there, the Supreme Court decided two additional cases, each expounding upon the 1969 holding. The first, known as Bethel School District v. Fraser, did not involve a direct challenge to student dress, but it did involve a student’s arguably offensive language during a contentious debate, which resulted in his suspension.
After challenging the suspension on First Amendment grounds, the Court held in favor of school officials, concluding that “the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the [school].” The case has since been applied regularly in the dress code context, as courts routinely equate the notion of spoken language and expression-through-fashion as identical under the First Amendment.
A similar case, this one involving the school administration’s censoring of editorial content in the school newspaper, arose in 1988, with the Supreme Court coming to the same conclusion: the decision ultimately lies in the administration’s hands.
Status of dress code laws today
The Court’s holding in Tinker remains the supreme ruling on the dress code issue. However, many lower state and federal courts continue to grapple with the somewhat vague requirement that dress code enforcement is acceptable only when a student’s dress “materially and substantially [interferes] with the requirements of appropriate discipline.”
In other words, the standard is too subjective for some judges’ tastes, prompting some to use a 2-prong analysis:
(1) Did the student intend to convey a particular message with his or her choice of dress? And,
(2) Would a reasonable observer understand the message?
In Bivens v. Albuquerque Public Schools, the U.S. Court of Appeals for the Tenth Circuit applied this standard to the school’s prohibition against sagging pants. That ruling, however, was quickly challenged by those citing a constitutional right to wear pants as they saw fit. The court ultimately concluded that the mandate did not violate a student’s First Amendment free speech protections, holding that:
“Sagging is not necessarily associated with any single racial or cultural group, and sagging is seen by some merely as a fashion trend followed by many adolescents all over the United States.”
Other courts, finding the 2-part inquiry still too vague in the student dress code context, have begun requiring the following 4-part analysis:
(1) Is the dress code authorized under state law?
(2) Does the dress code advance an important government interest?
(3) Is the government’s interest not related to the suppression of free expression?
(4) Upon enforcement, does the dress code only incidentally hamper free expression in the least restrictive way?
Using this standard, in Canady v. Bossier Parish School Board the U.S. Court of Appeals for the Fifth Circuit upheld a schoolwide dress code that was implemented to increase test scores and curb disciplinary problems throughout the school, a purpose the court considered unrelated to the suppression of free expression or speech.
The courts’ dress code decisions have created an objective framework for analysis. But they have not provided schools with a practical bright-line rule either, creating an awkward and highly interpretable fashion statement that is often too confounding for even the most forward-thinking trendsetter.
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