School dress codes can create an awkward intersection of First Amendment rights, student discipline, unhappy parents, and – sometimes – lawsuits. Broadly drafted certain areas of the dress code and parting with traditional dress code language protects students' rights while simultaneously achieving administrative goals.

Content Control

It is common practice for school dress codes to prohibit certain images, language, and gestures from clothing worn by students while at school. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the United States Supreme Court held that students do not lose their constitutional rights to free expression, guaranteed by the First Amendment, at school. The Court further declared that school officials could regulate the content of a student's speech in instances where “[t]he school expects the speech to substantially disrupt the educational process or setting.” Schools may prohibit the following areas of content-based speech in their dress codes: lewd language, vulgarity, obscenity, images portraying gangs, and images portraying illegal activities.

To maintain a legally defensible dress code, content-based prohibitions should be avoided except for the areas listed above. For example, a dress code that prohibits certain flags from being shown on students' clothing may be an unconstitutional regulation if there is no evidentiary justification an image of that flag would cause a “substantial disruption” to the school. By broadening the scope against certain messages, administrators can use their discretion to determine the likelihood of a particular image substantially disrupting the school on a case-by-case basis. Setting aside personal views on these images and digesting the reasonableness that a substantial disruption will take place are essential aspects in making proper enforcement decisions that limit the content of student speech.

Other Considerations and Drafting a Policy

1 Hair color and length is an ancillary issue that often arises during dress code discussions. Many courts throughout the Fourth Circuit have ruled in students' favor concerning hair color and hair length, finding that such restrictions may amount to violations of the students' equal protection rights under the 14th Amendment and their freedom of expression under the 1st Amendment. Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973); Massie v. Henry, 455 F.2d 779 (4th Cir. 1972).

Unlike content-based free speech prohibitions, limitations on clothing types and how they are worn are subject to less First Amendment scrutiny. Crafting a dress code that is not intended to target certain classifications of people can pass constitutional muster based on a number of justifications such as safety, health, protection, and prevention of a disruptive environment.

Dress code polices should be based on justifications that the administrator feels is necessary to achieve the school's objectives as institutions of learning. For example, a dress code that “prohibits all orange colored pants” because orange is the rival school's colors would not be rationally related to the school's operation or goals. Reflecting on the justifications for each provision and then stating those justifications directly in the dress code policy are two easy steps that communicate and reinforce the dress code's purpose.

Dress codes seeking to limit skin coverage are often highly contentious provisions both in courts of law and public opinion. Using a goals-based approach in drafting “skin coverage provisions” is a strategic way to avoid controversy or inadvertent discrimination. The legal risk that accompanies skin coverage provisions arise in the form of the policy having a discriminatory intent against one gender, race, or other protected class of individuals. To avoid this risk, school dress codes should avoid referencing garments that are generally associated with certain classifications of student demographics. Rather than covering every potential fashion ensemble's limitations, begin drafting your policy by considering the goals and justification you want to achieve. For example, compare the following policy provisions:

• Policy A: “No miniskirts, short shorts, tight skirts, low rise pants, or biker shorts.”
• Policy B: “Leg coverings must be worn at the waistline and provide coverage to at least 4 inches above the knee.”
• Policy C: “No tank tops, halter tops, muscle shirts, or spaghetti straps may be worn as an outer layer of clothing.”
• Policy D: “A student's torso must remain covered throughout the school day beginning at waist up to the level of the inner underarm. A minimum of 3 inches of shoulder coverage is required.” 

Polices A and C are very narrow, and even though the goal in preventing these items is to encourage maximum coverage, a student (or parent) could argue that the prohibited item is technically not in line with what is described in the policy. Clothing items are often loosely defined by popular culture trends. Policies B and D are broader and provide technical specifications related to certain points on the body along with the quantitative boundaries the policy is intended to portray. These policies focus on the goals of coverage provisions rather than medium of expression used by students to express themselves through their clothing.

Gender Neutral Language

Currently, there is tremendous focus on gender-based dress codes both in the media and among students and parents. While no major court decision has determined a specific legal standard for “gender-based dress codes” in public schools, creating policies that specifically differentiate in its application based on gender or gender stereotypes are often unconstitutional. One simple way to avoid a facially discriminatory dress code is to remove all references to males and females. Each provision can still apply the same way and will retain its effectiveness without mentioning who the policy is intended to restrict.

For example, in McMillen v. Itawamba Cnty. v. Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010) a female student in a Mississippi sought permission for her girlfriend to wear a tuxedo to the school prom. The administration mandated that “females must wear dresses and males must wear tuxedos.” The court agreed with the student that the policy was unconstitutional because the district's justification—“only boys should wear suits”—perpetuated stereotypes and discriminated based on gender. Simply by evaluating the language of its dress code and eliminating the potentially discriminatory language could have prevented lengthy and expensive litigation for he defendant district in this case.

Uniforms

In Canady v. Bossier Parish Sch. Bd, 240 F. 3d 437 (5th Cir. 2001), the school's uniform policy required all students to wear a choice of two colors of polo shirts and either navy or khaki bottoms. Parents challenged the policy under the First Amendment's freedom of expression clause. The court found that though clothing could be a form of expression protected by the First Amendment, the policy would be upheld if it 1) furthered an important or substantial government interest, 2) the interest was unrelated to the suppression of student expressions, and 3) the restrictions on the speech were no more than necessary to further the state interest. The court upheld the school's policy, finding it consistent with the state's interest of improving education, content neutral, reasonable restraint on the students' speech.

In creating a dress code policy that incorporates uniforms, Districts should be careful not to mandate such specific types of uniforms as to create hardships on students and parents who may not be able to afford them. Community engagement and involvement is often an effective approach to a successful campaign to craft a school uniform policy.

Issues surrounding school dress codes will always be a source of conflict for students seeking to express themselves and for administrators who aim to provide a learning environment free from disruption. By considering students' First Amendment rights and balancing those rights with goal-based policies, you are sure to provide a well-rounded dress code for your students.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.