Most schools in the United States uphold certain dress codes students must follow when attending classes. These dress codes range in significance and severity anywhere from prohibiting wearing flip-flops to requiring school uniforms. It’s important to acknowledge that appearance is one of the key ways that maturing students explore their rights to self-expression. Students attending school still have the protections granted to them under the First Amendment, which creates a bit of a gray area when it comes to the conflict between a student’s right to self-expression and the rules a school must put in place to provide a safe and functional environment.
School Dress Code Laws
Schools that require uniforms or implement dress codes do so because they believe the dress code influences the environment of the school in a positive manner. Dress codes are believed to promote a more serious and focused atmosphere, encouraging students to concentrate on learning rather than on appearances. Likewise, proponents of dress codes suggest that they help reduce the type of peer pressure that often revolves around appearances by setting guidelines for the types of clothing appropriate for school. While school uniforms put all students into the same outfit, more general dress codes simply limit what is considered appropriate dress and therefore allow students to express themselves through fashion, provided it falls within the bounds of the school rules.
Typical school dress codes often focus on modesty, safety and reducing the potential to cause a distraction due to one’s appearance. For example, hats and sunglasses are banned in most schools, not including medically prescribed sunglasses or religious headwear, because they’re deemed to be distracting to the student wearing them and to other students around them. For safety, schools often require appropriate footwear, banning flip-flops, for example, since they can be a tripping hazard; facial piercings are often banned on the grounds that they could lead to aggravated injury of the student; and the amount of baggy clothing and outerwear a student can wear in the classroom is limited as a prevention against concealed weapons and gun violence. In most cases, vulgar language printed on any type of clothing is also prohibited.
Gender and Dress Codes
The dress codes built on modesty are often seen as overly targeted towards female students or students who wear female-gendered clothing. For example, most schools use the "fingertip rule" to judge whether the length of shorts or skirts is appropriate for the classroom. Tank tops, off-shoulder shirts, bra straps and visible underwear are often prohibited. Inappropriate necklines and bare midriffs are also not allowed.
Most dress code laws are set by the states, down to the point where each individual school board has the right to set a dress code it believes is best for its institution, as long as it does not violate the rights of the students.
Student Rights Regarding Dress Codes
Public school students’ rights to expression are protected by the First Amendment, and dress codes are also required to meet legal standards on discrimination based on gender, religion or race. The school has the right to limit this expression when there is a serious concern that it will create a disruptive environment – one in which normal activities cannot proceed due to the appearance of a student. These two expectations can run up against one another, so it’s important to understand what kinds of expression a school dress code must allow.
Note that free speech and First Amendment case law treats students slightly differently depending on their age; elementary and secondary students have been treated differently than college and university students in various Supreme Court decisions.
Schools May Not Discriminate
First, schools may not discriminate against gender or against a student’s gender expression. This means, for example, the school can make a rule requiring formal wear for a school dance, but they cannot require the female students to wear dresses only and the male students to wear suits only. In addition, students are allowed to dress to their gender identity, whether they identify as cisgender or transgender or elsewhere on the genderqueer spectrum. Discrimination in such cases can leave a school open to legal action.
In addition, schools may not have dress codes that discriminate against race and may not implement punishments with prejudice. For example, recent cases regarding school expectations on hairstyles have been found to be biased against black students’ natural hair expressions; these types of rules can be unconstitutional.
Religious Expression Is Protected
Religious expression is also protected. This includes headscarves, rosaries, cross jewelry, turbans, yarmulkes and other types of religious articles. Even if a school banned certain regular headwear such as hats and caps, they must allow religious items to be worn during the school day.
In addition, schools may not prohibit clothing that displays a message simply because they do not agree with it. For example, schools can prohibit clothing depicting profanity, nudity or lewd messages, but they cannot stop students from wearing shirts expressing political viewpoints that do not fall into these categories.
Tinker v. Des Moines Independent Community School District
Court cases challenging dress code in schools go back over 50 years. This court case, initiated in 1965 and decided in 1969 was the first big case to evaluate a school’s right to implement a dress code when up against a student’s right of expression. In 1965, five students wore black armbands to protest the Vietnam War. Their school principals created a policy where students wearing armbands would be suspended until they were removed; when the students chose to violate this policy, the schools suspended them for doing so.
The eventual court case set down some ground rules on which current dress codes have been built. The decision found that schools may not forbid students from symbolic expression of viewpoints simply to avoid difficult discussions regarding those viewpoints or due to disagreement. It was determined that the student’s symbolic expression must be considered a significant disruption in the school’s operation to be prohibited by the school.
Gardner v. Cumberland School Committee
This Rhode Island case from 1972 further defined the lines around those parts of a dress code schools could enforce and why. A school policy forbid students from wearing maxi-coats to school, which led to the court case.
The significant findings from this particular case limited the reach of dress codes to situations involving either a clear and present danger to the student’s health and safety; interference with school work; or creating a classroom or school disorder. This case further delineated the lines drawn in Tinker v. Des Moines as to what can be considered a significant disruption and what can be restricted by dress code laws.
Bethel School District v. Fraser
This 1993 case explored the definition of which types of free speech could be limited within the school setting. Matthew Fraser, a high school senior, gave a speech nominating a friend for a student government role. The speech was filled with sexual innuendo, although it was neither explicit or obscene. The school suspended him for three days and forbid him from performing other school speeches he was elected to perform.
When the case got to court, it was initially decided that Fraser’s rights of self-expression had been infringed upon by the school. The school district appealed all the way to the Supreme Court, which overturned that decision. The Court ruled that while students have the right to express themselves in nondisruptive ways, the school maintains the right to prohibit certain kinds of expressions which are vulgar, lewd or obscene.
Guiles v. Marineau
This particular 2006 case further defined a student’s right to free political speech with relation to government officials, drugs and alcohol. A student wore a T-shirt to school depicting George W. Bush with a chicken’s body, surrounded by insulting wording along with references to alcohol and cocaine in relation to the former president. After complaints from both other students and parents, the student was asked to cover up the parts of the shirt that related to drugs and alcohol. After the student refused, he was sent home with a disciplinary referral.
The case was initially decided as a legitimate complaint: The shirt constituted a violation of the school’s dress code by referencing drugs and alcohol. However, this was overturned in the appellate court, where the court ruled that the T-shirt was constitutionally protected free speech.
Mentioned as evidence of importance in this court decision was the fact that the student had worn the shirt multiple times before any issues were brought up, with no disruption, so the school had no right to consider the message on the shirt disruptive. This is important as a counterpoint to the ruling in Bethel v. Fraser, since the reference to drugs and alcohol was considered a part of the message, and the shirt was considered to be within the student’s right to free speech because of the lack of disruption.
Jacobs v. Clark County School District
This 2008 case established the rules for a school district’s dress code with regard to uniforms, and how that intersects with a student's right of expression. In this case, Liberty High School had a dress code requiring students to wear khaki bottoms with solid-color tops, with no decoration other than an optional school logo.
Kimberly Jacobs, an 11th-grade student, repeatedly violated this dress code, and at least once her clothing contained a printed message about her religious beliefs. She was suspended from school five times for these violations. Her family’s argument was that the uniform requirements infringed on Jacobs’ rights to free expression and to free exercise of religion.
The resulting court case determined that the requirements of school uniforms did not infringe on the student's rights to expression in this case. Since the uniforms were neutral, and the school had cited reasons to require these uniforms – promoting safety, providing a positive environment and focusing on student achievement – that had nothing to do with limiting any kind of free speech, it was deemed that the uniform codes were legally enforced. It was pointed out that students have many other routes of self-expression available to them within this context. Since the dress code was intended for reasons other than suppression of expression, the policy was deemed to not, in fact, infringe on a student’s right to self-expression.
B.H. and K.M. v. Easton Area School District
This 2013 case provided further definition of what constitutes lewd or inappropriate content, as well as what counts as disruptive. Two students wore bracelets which read “I Heart Boobies (Keep A Breast)” as a means to express breast cancer awareness. The students were suspended after teachers complained about the message and amended their dress code policy to prohibit the word boobies. The administration’s opinion was that the language used on the bracelets could also be interpreted as lewd.
This case was decided in favor of the students’ rights to wear the bracelets; the language was deemed neither lewd nor disruptive. The message had no direct link to any sort of sexual conduct, and breasts are not primary sex organs. Also, the message was promoting cancer awareness rather than anything related to lewd or promiscuous behavior. In this case, the Supreme Court refused to hear the appeal, so the students’ rights to wear these bracelets was upheld.
Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. She has written on legal topics for a number of other clients. She owns her own content marketing agency, <a href="https://www.wordsmythcontent.com/">Wordsmyth Creative Content Marketing</a>, and enjoys writing legal articles and blogs for clients in related industries.