The Constitutionality of Mandatory School Uniform©
Loreen Princz, M.A, J.D.
The increase of violence in our schools has left educators, parents, and politicians scrambling for a solution on how to make our schools safe and ensure the safety of our children. In 1996, former President Clinton suggested the institution of school uniforms in public schools across the nation in an effort to decrease violence in our schools. 1 This policy promised not only a reduction in school violence but also order and structure in the classrooms.2 In a memorandum to Secretary of Education Richard W. Riley, Mr. Clinton wrote:
The education of students is perhaps the most important function a school has.8 In order to ensure that students are getting their education, order and discipline must be maintained.9 In addition to educating students, the educators of the school also have the responsibility to teach the students community values and appropriate behavior.10 In order for this to be accomplished, a school must carefully choose the policies it implements in reaching its mission.
THE TREND FOR UNIFORMS IN SCHOOLS
School uniforms have been successfully implemented around the United States.12 In 1994, the first large urban school district to mandate school uniforms for all elementary and middle school students was in Long Beach, California.13 This school district serves approximately 72,000 students.14 Surveys given to the people living in the community have shown an 80% approval rate of the uniforms, and parents of the children who attend the school district have a 91% agreement rate that uniforms have improved the school’s environment.15 In 1995, the Oakland California school board voted to require all elementary and middle school students to wear mandatory uniforms.16 The policy at this district excludes high school students from the requirement.17 In 1997, Dade County schools in Florida amended their mandatory school uniform policy by lowering the necessary approval rate of parents to institute such policies from 75% to 50% plus one.18 In 1999, the New York City School board voted unanimously for all elementary students to be required to wear uniforms.19 The largest urban school district adopting a uniform policy for its students shows how such policies are becoming increasingly popular amongst educators.20 In 2000, Philadelphia became the largest school district in the country to implement mandatory school uniforms.21
Mandatory uniform policies have been in effect at various schools across the nation for almost a decade. However, the lack of empirical evidence to prove whether or not the uniforms are increasing or reducing the violence, and the discipline policies, has left critics skeptical. One study conducted by Long Beach, California schools reported dramatic positive results they claim are proof that their goals are being achieved with uniforms.22
However, a study published in The Journal of Education Research had contrary evidence as to the benefits brought by uniform policies.25 The authors of this study concluded that uniforms did not improve attendance rates, decrease behavioral problems, decrease drug use, or improve academic achievement.26 Another alarming statistic was reported by the schools in Miami-Dade County, Florida after the implementation of uniform policies.27 In the middle schools where uniforms were mandatory, fights increased about 53% over a four-year period from 186 in 1996-97 to 284 in 1997-98.28
Despite the conflicting research, or lack thereof, the trend towards the implementation of mandatory school uniforms is still on the rise. Existing policies are being held in place by lower court decisions deferring to the school districts. Essentially, courts are enabling schools to make policies that help them accomplish their pedagogical missions; even if that means that some students will feel that their freedom of expression is being violated by the implementation of mandatory uniforms.
TINKER, O’BRIEN, FRASER, and KUHLMEIER
When a school decides to mandate school uniforms in order to pursue its own legitimate interests, students and parents often question whether their right to freedom of expression has been compromised. The restriction placed on a student’s appearance and how that restriction is tailored to accomplish the school’s interest are the factors that will be considered by courts when making a determination as to whether or not the student’s First Amendment right is being infringed upon. Courts have often applied the following cases in their reasoning to determine the constitutionality of school-uniform policies: Tinker, O’Brien, Fraser, and Kuhlmeier. This paper will examine how the courts have interpreted and applied each of these decisions in upholding the constitutional challenges brought by students against school-uniform policies.
The most important case standing for freedom of student expression is Tinker v. Des Moines Independent School District.29 In Tinker, students planned to wear black armbands to school to show their disapproval for the war in Vietnam. The school administration got knowledge of the students’ plan and created a rule forbidding the wearing of these black armbands. When the students came to school wearing the black armbands after they had knowledge of this rule, the school suspended these students for violating the rule. The Supreme Court reversed the students’ suspensions finding the armbands closely akin to pure speech.30 In its reasoning, the Court cited Burnside v. Byars31 which held:
By contrast, in Tinker, none of the evidence presented by the school officials showed any anticipation of disruption.35 In addition, the school was only prohibiting the wearing of black armbands but was not targeting other forms of political or controversial insignia.36 In response, the Court held:
In 1968, the U.S. Supreme Court ruled on draft-card burning in the case of U.S. v. O’Brien.41 O’Brien was found in violation of a federal statute when he decided to burn his draft card at a South Boston Courthouse to protest the conflict in Vietnam.42 The Court found that O’Brien’s actions were not protected symbolic speech:43
This test, established in O’Brien, was then utilized by the 5th U.S. Circuit Court of Appeals to uphold a school-uniform policy against constitutional challenge in Canady v. Bossier Parish School Board.47 In this case, parents challenged the school board’s mandatory uniform policy claiming it violated their children’s First Amendment right to free speech, failed to account for religious preferences, and denied their children’s liberty interest to wear clothing of their choice in violation of the Fourteenth Amendment.48 The court used the reasoning set forth in O’Brien to establish that,
The parents also argued that the students have a Fourteenth Amendment liberty interest in wearing the clothes that they so choose.52 In response, the court reasoned that when the First Amendment provides adequate protection the court does not need to address a substantive due process claim.53 In addition, the parents also argued that the purchasing of these uniforms was a financial burden and, in effect, would deny students the right to free education guaranteed by the Louisiana Constitution.54 The court dismissed this argument because the School Board presented evidence that organizations donated school uniforms to those less fortunate and that these clothes could be purchased at inexpensive retail stores.55
In Bethel School District 403 v. Fraser, the U.S. Supreme Court compared a student’s right to advocate an unpopular and controversial viewpoint with society’s interest in teaching students socially appropriate behavior.56 The issue presented in this case was, “Whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly.”57 The student, Fraser, gave a speech at a school sponsored assembly on behalf of a candidate running for the student government at their school.58 In his speech, “Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.”59 The First Amendment is not offended when school officials prevent students from using vulgar and lewd speech such as Fraser’s that would undermine the school's basic educational mission:60
Hazelwood v. Kuhlmeier was decided by the U.S. Supreme Court in 1988.65 This case involved several students alleging a violation of their First Amendment rights when their principal censored the publication of several articles in the school newspaper. Prior to its publication, the principal reviewed the contents of the school newspaper and found that two articles written by students should be removed.66 The principal objected to the articles for several reasons. He determined that the topics of teen pregnancy and divorce discussed in the articles were inappropriate for younger students.67 He also determined that although the students were not named in the articles, it was likely that they could be identified by the text.68 The issue before the U.S. Supreme Court focused on the extent of editorial control that educators may exercise over the contents of a high school newspaper that was part of the journalism curriculum.69 The Court concluded that the principal acted reasonably and ruled,
TINKER, O’BRIEN, FRASER, and KUHLMEIER ANALYSIS
The U.S. Supreme Court has yet to rule on the constitutionality of mandatory school uniform policies in public schools. According to the 1998 U.S. Department of Education Annual Report on School Safety, uniform policies have primarily been enacted in elementary and middle schools.73 The American Civil Liberties Union believes that in order for a public school uniform policy to be legal the policy must include a provision which allows a student to opt-out of wearing the uniform.74 It is obvious that most teenagers at the high school would choose to opt out of a uniform policy which is why these types of policies are rarely implemented at the high school level.75 This opt-out policy is based on the perception that Tinker dictates the constitutionality of such policies.76
Tinker has been interpreted as allowing school officials to regulate student speech so long as the regulation is not content-based and is reasonably related to the pedagogical objective of the school.77 Critics of uniforms analogize them to the armband prohibition in Tinker and view them as content-based.78 Critics believe that an opt-out provision is necessary in order to protect students’ rights to religious and content-based expression.79
If a court applied the O’Brien standard to mandatory school uniforms, the school officials who are implementing the policy must meet the requirements of the four-part test of that decision’s holding.80 First, the regulation must be within the government’s constitutional power.81 School officials would have to assert that they have this power and that it is derived from the state’s constitution or from the state’s education code.82 Second, the regulation must further an important governmental interest, and third, it must be unrelated to the suppression of free speech.83 School officials would argue that the important governmental interest is to provide safe schools and it is only incidental that students would now not be able to wear clothes that they feel are fashionable.84 Fourth, the restriction can be no greater than is necessary to further that interest.85 School officials would argue that this restriction on clothing is not any greater than what would be necessary to ensure the safety of schools and perhaps that past efforts made in the past have failed. The fourth part of the O’Brien test would be the most difficult to satisfy because although promoting school safety is an important government interest, a regulation implementing mandatory uniforms can be considered excessive.86
Although Fraser and Kuhlmeier are factually dissimilar to the issue of school uniforms, they reveal a trend by courts to allow public schools to convey values and knowledge endorsed by our society.87 This trend allows school officials much broader discretion in promoting their mission while prohibiting speech and activity that is inconsistent with the mission.88 This demonstrates that when courts are faced with balancing student’s rights with reasonable educational decisions made by school officials, the courts will give deference to the decisions made by the school officials.89 Mandatory school uniforms, so long as the uniforms support the school’s mission, would be acceptable under the analysis the courts applied in Fraser and Kuhlmeier.
The above cases have shown that there needs to be a balance between the students’ rights to freedom of expression and the schools’ need to maintain a safe education environment. Students are entitled to First Amendment rights in the schoolhouse, but those rights are limited and are not as extensive as the rights that adults share in other settings. When a school does decide to place a limit or restriction on students’ freedom of expression, it cannot be arbitrary and unnecessary. A restriction cannot be placed on students because the students’ views are unpopular. In making policies, schools must show that there will be a material disruption to the educational process without the prohibition in place or that it is foreseeable for substantial and material interference to occur.
LOWER COURTS APPLICATION
The lower courts have been reaching decisions in favor of uniform policies and finding that so long as the policy is rationally related to the school’s pedagogical mission, they will not find a First Amendment constitutional violation or Fourteenth Amendment due process violation. Since the Supreme Court has never specifically decided on students' First Amendment rights as they relate to dress, lower courts have had to balance competing interests in reaching their decisions.90
The Arizona Court of Appeals applied a new reasoning to uphold a mandatory dress code in its ruling in Phoenix Elementary School Dist. No. 1 v. Green.91 The students in this case challenged the mandatory uniform policy by one student wearing a shirt of the American flag and another student wearing a shirt with a picture of Jesus Christ. In Green, the Arizona Court of Appeals affirmed the lower court’s decision that the mandatory dress code did not violate the First Amendment of the U.S. Constitution. In making that determination, the Court analyzed whether or not the school was a public or nonpublic forum. The Court held that it was a nonpublic forum and, as such, so long as the dress code bears a reasonable relation to the pedagogical purposes of the school, as articulated in Kuhlmeier, it will stand.92 In its analysis, the trial court found the Tinker analysis inapplicable since the policy was not content based, but rather “regulated the medium of expression, not the message.”93 Instead, the trial court used the Cornelius94 analysis in making their determination, and on appeal, the Court of Appeals agreed.95
In Cornelius, the NAACP Legal Defense and Education Fund and other similar organizations brought suit alleging that an executive order that excluded them from participating in a fundraising charity drive aimed at federal and military personnel was in violation of their First Amendment right to solicit charitable contributions.96 The U.S. Supreme Court agreed that the First Amendment right does include a right to solicit charitable contributions but that the government has a right to limit that right depending on whether the forum involved is public or nonpublic.97
The Court found that the public workplace is a nonpublic forum; therefore, the government could restrict access so long as the restrictions are facially reasonable.98 A school is also generally considered a nonpublic forum for purposes of the First Amendment.99 The public does not have access to a nonpublic forum, and the government can impose reasonable time, place, and manner restrictions upon speech in light of the purpose of the forum.100
The Court in Green found that the school district’s content neutral dress code was not a violation of the students’ First Amendment rights in the nonpublic forum of their school and that it is a reasonable regulation to accomplish the pedagogical mission of the school.101 Judge Jones stated:
This decision was a radical departure from other courts’ dress code analysis in that it didn’t apply Tinker or Bethel to the school’s uniform policy.103 By applying the forum analysis test and determining that the school was a non-public forum, the state can then severely limit access.104 This decision will help ensure that students can learn in a safe and orderly environment.105
In Byars v. City of Waterbury, the court ruled in favor of the Connecticut school district and upheld the public school uniform policy.106 However, unlike the previous cases where students have claimed uniform policies violate their First Amendment right to freedom of expression, the students in this case alleged that the enforcement of the dress code violated their rights to liberty and privacy under the Fourth, Ninth and Fourteenth amendments.107
The school presented evidence that the uniform policy was enacted for the purpose of reducing disruptions, arguments, theft and loss of instructional time.108 Byars was suspended forty-nine times for violating the uniform policy by wearing blue jeans that were strictly prohibited by the code.109 Byars has never claimed that she wears blue jeans for any expressive or political reason, affordability, religious or health reasons.110 Her position is that she prefers to wear blue jeans to school because she wishes to dress as she pleases.111
The Court decided that there is no fundamental right to wear blue jeans to school and did not apply the strict scrutiny standard.112 Instead, the court found that only the rational relationship test applies to the challenged regulation and as such, the regulation is valid if rationally related to its goal.113 Again, we have a different court, reaching the same decision as the court did in Green. The court held, the uniform policy was rationally related to the school’s pedagogical mission and that plaintiffs failed to prove their claims.114
The United States Court of Appeals for the Fifth Circuit upheld the school’s uniform policy in Littlefield v. Forney Independent School District.115 The students in this case appealed from the summary judgment granted to the school district and on the appeal, the decision was affirmed. Students sued the school district on the basis that the uniform policy that the school district adopted pursuant to the Texas Education Code was violating the students’ First Amendment rights because the wearing of uniforms was compulsory.116 In addition, parents of the students sued the school district for violating the fundamental rights of parents to control the upbringing and education of their children in violation of the Fourteenth Amendment.117 The court rejected both of these arguments and found that the policy was constitutional and permissible.
The court relied on the Canady118 decision and applied the four-part test established in O’Brien119 in making its determination that the uniform policy does not violate the First Amendment.120 The court found that pursuant to state law, the school officials have the power to pass a mandatory uniform policy.121 The court agreed that improving the educational process is an important and substantial interest of the school and the school board.122 Since the policy was adopted in order to improve student performance, instill self-confidence, foster self-esteem, increase attendance, decrease disciplinary referrals, and lower drop-out rates, the court held that these factors are all sufficient governmental interests.123 The court also found that the students failed to establish material facts sufficient to demonstrate that the uniform policy was enacted to suppress expression.124 Finally, the court ruled that the restrictions on clothing are limited to during the school day and it’s no more than necessary to facilitate the interest of the school.125
The court then addressed the parents’ claim that the uniform policy interfered with their fundamental right to control the education of their children and does not allow them to act in the best interests of their children.126 Since this is a fundamental right, the parents contended that a strict scrutiny analysis should be applied to the uniform policy.127 The court concluded that the uniform policy does not infringe on the fundamental rights of parents to control the rearing and education of their children and instead applied a rational-basis test.128 The court concluded that the uniform policy is rationally related to the state’s interest in fostering the education of its children and furthering legitimate goals and therefore does not violate the parents’ Fourteenth Amendment rights.129
CONSTITUTIONALITY OF MANDATORY SCHOOL UNIFORMS
To date, the courts have not offered a predictable guideline on how to resolve the issue of mandatory school uniforms.130 The courts’ analysis of this issue has varied, but the conclusion that uniforms do not infringe on the first amendment rights of students has been the decision reached by every court to date that has reviewed this issue.
The type of analysis that would be applied to the question of whether or not mandatory school uniforms are constitutional depends on whether or not uniform dress codes regulate expressive conduct or pure speech.131 If the courts found clothing to be “speech”, it could qualify as expressive conduct or symbolic speech.132 Opponents of dress codes argue that clothing expresses ideas of individuality.133 This qualifies it as expressive speech and as such, it violates the standard set forth in O’Brien.134
Advocates of mandatory school uniforms argue that the governmental interest in keeping public schools safe outweighs the incidental burden placed on students.135 Based on previous rulings, it is unlikely that a court would find students’ clothing to be a protected form of speech.136 If students’ clothing were found to be pure speech, courts would then need to determine whether the regulation is content based or content neutral in order to determine the appropriate level of scrutiny.137 A uniform dress code would more than likely fall under content neutral since it equally applies to all students regardless of the clothing they would like to wear.138 Less scrutiny is applied to regulations that are content neutral than content based. A content neutral regulation must meet a substantial governmental interest and be narrowly tailored to meet that interest.139
Opponents of uniform dress codes argue that these types of regulations are content based because they aim to eliminate particular clothing such as gang related apparel. Strict scrutiny is applied to content based regulations. This analysis requires a compelling state interest with no less restrictive means available to further that interest.140
As evidenced by the lower court decisions, uniform policies are able to be implemented in schools successfully. Uniform policies are able to withstand the constitutional challenges brought by both the students and parents who oppose these codes. School districts that would like to implement mandatory uniform policies must consider several legal and practical guidelines.
The best approach to get approval of these types of policies is to involve the community and parents in the process.141 Another safeguard to keeping a mandatory uniform policy in place is to have an opt-out policy. It is also imperative that the costs of these uniforms be kept to a minimum, and that uniforms are provided to children of low-income families who cannot afford to purchase them. Schools must also accommodate religious attire such as headscarves and yarmulkes that are worn by certain students who are religious.142
The state’s interest in educating the youth, coupled with the school’s interest in maintaining a disciplined learning environment, has given birth to the need for some sort of change in the current system. Mandatory uniform policies, in contrast to dress codes, are usually not vague or overbroad and are able to withstand the legal challenges brought by students and parents. School uniforms may not be the best solution in changing the failing atmosphere of schools across the nation, but they may provide a step in the right direction.
8 Brown v. Bd. of Educ. 347 U.S. 483, 493 (1954)
9 New Jersey v. T.L.O. 469 U.S. 325, 350 (1985)
11 N.J. v. T.L.O. 469 U.S. 325, 350 (1985)
25 David L. Brunsma, D.L. and Rockquemore, K.A. (1998) Effects of Student Uniforms on Attendance, Behavior Problems, Substance Abuse, and Academic Achievement, The Journal of Education Research Volume 92, Number 1, Sept./Oct. 1998, pp. 53-62
27 Darlene Williams, School Uniforms: The Raging Debate, http://www.gate.net/~rwms/UniformDWilliams.html
29 393 U.S. 503 (1969)
30 Id at 506.
32 Id at 747.
34 Id at 749.
35 393 U.S. 503, 510 (1969)
37 Id at 512.
38 363 F.2d 744, 749 (1966)
39 393 U.S. 503, 512 (1969)
40 Id at 514.
41391 U.S. 367 (1968).
42 Id at 370..
43Id at 377.
45 Id at 378.
47 240 F.3d 437 (2001) U.S. Court of Appeals, 5th Circuit
48 Id at 439.
49 Id at 443, see O’Brien 391 U.S. at 377
51 Id at 444.
53 Id., also see Boroff v. Van Wert City Board of Education 220 F.3d 465, 471 (6th Cir.2000) holding that substantive due process should not be used as a fallback argument when the First Amendment directly addresses the subject.
56 478 U.S. 675 (1986)
57 Id at 678..
60 Id at 686.
62 Id at 681..
64 Id at 683.
65 484 U.S. 260(1988)
69 Id at 262.
70 Id at 273.
76 See Jennifer Starr, School Violence and its effect on the constitutionality of public school uniform policies, 29 JLEDUC 113 (2000)
77 Id at 116.
80 391 U.S. 367, 378 (1968)
81 See notes infra 41-46
82 See Alison M. Barbarosh, Undressing the first amendment in public schools: Do uniform dress codes violate students’ first amendment rights?, 28 Loy. L.A. L. Rev. 1415 (1995).
83 Id at 1435.
84 Id at 1436.
87 See Troy Y. Nelson, If clothes make the person, do uniforms make the student?, 118 WELR 1 (1997)
88 Id at 20.
89 Id at 21.
90 See Dena M. Sarke, Coed Naked Constitutional Law: The benefits and harms of uniform dress requirements in American public schools, 78 B.U. L. Rev. 153, *160 -161 (1998)
91 943 P.2d 836 (1997)
92 484 U.S. 260, 273(1988)
93 943 P. 2d 836, 838 (1997), Court of Appeals of Arizona
94 473 U.S. 788 (1985)
95 943 P. 2d 836, 838 (1997), Court of Appeals of Arizona
96 473 U.S. 788, 796 (1985)
97Id at 797.
98 Id at 798.
99 943 P.2d 836, 839 (1997)
101 Id at 840.
103 See Joseph R. McKinney, A new look at student uniform policies, 140 Ed. Law Rep. 791 (2000)
104 Id at 804.
106 795 A.2d 630(2001), Superior Court of Connecticut
107 Id at 633.
108 Id at 638.
109 Id at 636.
110 Id at 641.
112 Id at 644.
114 Id at 647.
115 268 F.3d 275 (2001), U.S. Court of Appeals, 5th Circuit
116 Id at 281.
117 Id at 282.
118 240 F.3d 437 (2001) U.S. Court of Appeals, 5th Circuit.
119 391 U.S. 367 (1968)
120 268 F.3d 275, 286 (2001), U.S. Court of Appeals, 5th Circuit
124 Id at 287.
126 Id at 288.
128 Id at 289.
129 Id at 291.
130 See Amy Mitchell Wilson, Public School Dress Codes: The Constitutional Debate, 1998 B.Y.U. Educ. & L.J. 147.
131 Barbarosh, supra note 82, at 1432.
132 Wilson, supra note 130, at 169..
135 Barbarosh, supra note 82, at 1432.
136 Wilson, supra note 130, at 170.
137 Barbarosh, supra note 82, at 1431.
138 Wilson, supra note 130, at 170.
139 Barbarosh, supra note 82, at 1443.
140 Wilson, supra note 130, at 170.
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