Anthony J. Scibetta
Advanced Legal Research
The First Amendment: Student Dress Codes:
TABLE OF CONTENTS
In 1968, a group of adults and students in Des Moines, Iowa, wore black armbands to school to publicize their objections to the hostilities in Vietnam. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 504 (1969). The students wore these armbands despite the fact that school authorities a few days earlier had adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused would be suspended until he returned without the armband. Id. at 504. The students were suspended and brought suit. Id. at 504. The Supreme Court ruled in favor of the students and stated, “in order for the state in the person of school officials 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.’” Id. at 509.
The Tinker exception was further expanded in Bethel School District v. Fraser, 478 U.S. 675 (1986). In Fraser, a student delivered a sexually explicit and graphic nominating speech to 600 students. Id. at 677. Expanding Tinker, the Supreme Court held that it is appropriate for a school to disassociate itself from speech that is vulgar, lewd, and wholly inconsistent with the fundamental values of public school education. Id. at 685.
These exceptions were further broadened in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). This case concerned the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school’s journalism curriculum. Id. at 262. The Supreme Court held that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Id. at 273.
Today, Courts review the facts of a particular dress code punishment and determine whether or not the student violation rises to the level of material and substantial, vulgar and lewd, and/or is school sponsored speech in which school officials are entitled to exercise greater control.
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
Concerned a plaintiff who wore a black armband to school to publicize his objection to the hostilities in the Vietnam War. Tinker’s school sent her home and suspended her in violation of a newly adopted policy banning armbands. The Court held that students and teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The prohibition of one particular opinion is not justified unless there is evidence that the prohibition was necessary to avoid material and substantial interference with schoolwork or discipline. The record in this case did not demonstrate any facts which might reasonably have led school authorities to forecast disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. Therefore, the school was in violation of Tinker’s First Amendment rights. This is the first school dress code rule established by the Supreme Court.
- Bethel School District v. Fraser, 478 U.S. 675 (1986).
Concerned a defendant who delivered a speech in school to his peers that referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Students appeared to be bewildered and embarrassed by the speech. The school suspended the defendant because he violated the school disciplinary rule. The Court held that the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. It was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education. This case clarified and further expanded the rule in Tinker.
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
Court held that educators did not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Although the students maintained some authority over the contents of the paper in order to learn leadership abilities, the school maintained ultimate control over the paper. The school newspaper was published as part of a journalism class taught by school faculty during school hours. The journalism teacher maintained a great deal of editorial control; for instance, he selected the editors, assigned story topics, and edited. The Court held that the paper was a closed forum and that school officials were entitled to regulate the paper's contents in any reasonable manner. This case expanded a school’s authority by allowing them to regulate any activity that can be deemed “school sponsored.”
- Kenneth May, First Amendment Rights of Free Speech and Press as Applied to Public School: Supreme Court Cases, 73 L. Ed. 2d 1466 (2006).
Twenty-two page document that contains references one will find helpful. Of particular importance is “armband demonstration in opposition to war,” §13 and “balancing of interests, generally,” §§5, 8.
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|Public school, students, First Amendment, freedom of speech, dress code, rules and regulations, violations, dress code violation.
||92k90(2) “Press,” “Speech” and “Freedom” Defined.
||first /s amend! student!
Search terms produce 35 results including Tinker, Fraser, and Hazelwood.
||345K169 Control of Pupils and Discipline in General.
||first /s amend! student! /p dress /s code!
Search terms produce 4 results.
||92K90.1(1.4) Schools and Colleges, Regulations; Student Publications.
||92K278.5(6) Discipline, Suspension, or Expulsion.
- First Amendment Center - Comprehensive research coverage of key First Amendment
issues and topics. Excellent site that explains controversies/cases that have arisen as a result of alleged First Amendment violations.
Other important information can be found at this site including a kindergarten through twelfth grade synopsis of clothing, dress codes,
and uniforms in public schools. It summarizes arguments for and against dress codes, and explores the legal history of the First Amendment
by reviewing seminal cases such as Tinker, Fraser, and Hazelwood.
- Student Dress Policies. ERIC Digest, Number 117 - California website that lists good
social arguments in favor of school uniforms and in opposition of school uniforms.
- U.S. Department of State - An article written by Robert S. Peck which
tells the story of Mary Beth Tinker, and how her protest established school dress code rules as we know them today. It humanizes the cases
one usually looks at analytically.
- First Amendment Schools - A national reform initiative designed to teach schools about the First Amendment and
how to build a curriculum around it. Good organization that teaches students and schools how important First Amendment freedoms are.
- ACLU - Organization that looks to protect First Amendment rights. Linked press releases
provide insight into current free speech cases on the Supreme Court’s docket and discusses opinions that affect the civil liberties of
- Student Press Law Center - An excellent visual explanation of the rights of students following Tinker, Fraser,
and Hazelwood. This diagram is courtesy of the Student Press Law Center, an organization devoted to educating students about the rights
and responsibilities embodied in the First Amendment.
- National Education Association - Contains many valuable articles about dress codes.
Most notably, an article from NEA’s Office of General Counsel expresses the view that dress
codes are “back in style.”
- Stephanie McPherson, Tinker v. Des Moines and Students’ Right to Free Speech: Debating Supreme Court Decisions (2007). Explores
the controversial Supreme Court decision that established the First Amendment/dress code policy rule.
- W. Wat Hopkins, Mr. Justice Brennan and Freedom of Expression (1991). A study of the entire Supreme Court career
of Justice Brennan. It explores the Justice and Court on seven essential freedoms including expressive conduct and regulated speech.
It critically examines the key of each of the listed freedoms.
- Susan Dudley Gold, Tinker v. Des Moines: Free Speech for Students (Supreme Court Milestones) (2006). A critical study of
Tinker and a comprehensive overview of free speech for students. It explores the Supreme Court’s reasoning and logic behind its decision.
- Daniel A. Farber, The First Amendment: Concepts and Insights (2002). A First Amendment book that explores the basics of
the Amendment and has a subsection devoted entirely to speech in the public sector, including schools.
- Kern Alexander, The Law of Schools, Students, and Teachers in a Nutshell (2003). This treatise, as part of the Nutshell
Series, broadly explores the rights of students. With regards to student First Amendment rights, this treatise explores a student’s
freedom of speech and expression rights.
- Alan H. Levine, The Rights of Students; The Basic ACLU Guide to Student’s Rights (1977). This is an American Civil
Liberties Union handbook which states the legal status of students, their rights, and the laws that affect them.
- Wendy Mahling, Secondhand Codes: An Analysis of the Constitutionality of Dress Codes in the Public Schools, 80 Minn. L. Rev. 715 (1996).
The First Amendment limits the government’s ability to regulate speech less stringently when public school students’ First Amendment
rights are involved. This article explains that since students’ First Amendment rights are not coextensive with those of adults,
courts do not apply traditional First Amendment jurisprudence when examining regulations affecting speech in the public schools.
- Amy Mitchell Wilson, Public School Dress Codes: The Constitutional Debate, 1998 BYU Educ. & L.J. 147 (1998). Author
explores the controversy of dress codes in public schools. As dress codes gain popularity in the public schools, the debate ripens on the
effectiveness of, constitutionality of, and need for such restrictive regulations. Approaching this controversy, Ms. Wilson explores in
detail the First Amendment issues in dress regulation by addressing Tinker, Fraser, and Hazelwood.
- Andrew D.M. Miller, Balancing School Authority and Student Expression, 54 Baylor L. Rev. 623 (2002). Explores “the
Tinker trilogy” and clears up the misconception that Fraser and Hazelwood may have overruled Tinker. Fraser and Hazelwood merely defined
the limits of constitutionally protected freedoms of expression that were never meant to be absolute.
- Todd A. DeMitchell, Dress Codes in the Public Schools: Principals, Policies, and Precepts, 29 J.L. & Educ. 31 (2000).
The author focuses on the school principal who must implement the school dress code policy. Included are surveys of school principals and
their perceptions regarding dress codes. In sum, student constitutional rights to free speech are not unfettered. They must be balanced
against the need of the State to provide an efficient system of public education.
- 16A Am Jur 2d Constitutional Law §469 (2006). This excerpt lists the legal rights of students. It states that student
rights are not coextensive with the rights of adults.
- 68 Am Jur 2d Schools §304 (2006). This section lists some of the reasons why a student can and can not be punished in a
school environment. Its main focus is on expletives and lewd and offensive speech.
- 68 Am Jur 2d Schools §287 (2006). Explains some of the common dress code rules (i.e.: rule prohibiting males wearing
earrings) and the justifications for these regulations. Also explores to what level an infraction must arise to in order to be volative
of the First Amendment. Additionally listed in §287 is reference to:
- §287 Generally.
- §288 Vagueness in Dress Regulations.
- §289 Wearing of Armbands and Buttons.
In sum, school dress codes have long been controversial. Since Mary Beth Tinker entered her school wearing a black armband in protest, the Court has struggled with balancing the interests of students and those interests that are meant to be protected in a classroom environment. The Tinker trilogy remains the law; however, the Supreme Court docket continues to remain filled with challenges to these existing laws.
- Robin Cheryl Miller, Validity of Regulation by Public-School Authorities as to Clothes or Personal Appearance of Pupils, 58 A.L.R.5th 1 (2007).
Comprehensive article which lists the particulars concerning regulating hair lengths, t-shirt messages, athletic uniforms, etc.
It is the penultimate guide to all things dress code related in public schools. Some research references found within the article
include: Am. Jur. 2d. Constitutional Law §§565, 566 and Am. Jur. 2d. Schools §§264-268.