The First Amendment in Schools: Resource Guide: Student Expression: Web Pages, Dress Codes, and More

Other Forms of Student Expression: Disputes over expressive activities in schools are not confined debates over curricular materials, the library and the school paper, but occur in a wide variety of contexts, ranging from hair length and message t-shirts to jewelry and concerts.

Any activity that is “school-sponsored” – be it in the classroom, at a school assembly, during a student meeting or a student club meeting, in the campus newspaper or in a school play – is governed by the same principles that have already been articulated with regard to classroom materials and student publications: in the event of a court challenge, judicial decisions are likely to show great deference to school boards and administrators if they rely on sound educational criteria, their actions are consistent with the school’s educational mission and policies, and there is no evidence of an impermissible motive to suppress certain ideas or dissenting views. By the same token, when educators decide to take a “hands off” approach – for example, by providing students with editorial control over publications and student events – that judgment is also entitled to the same degree of deference.

Hair, Dress, and Appearance: Since the Tinker case in 1969, students, school administrators and courts have struggled with the boundaries and limits of student dress and grooming requirements. Beginning in the early 1970s, the courts were inundated with cases that confronted the issue, and have found few clear answers. As of 2001, the circuit courts remain split over the control school administrators can exercise with respect to student dress and grooming. In one recent case, a school disciplined a boy for wearing an earring, although earrings are permitted under the dress code for girls. As this reveals, the issue often is complicated by gender. Other examples are hair length restrictions for boys but not girls, or dress requirements designed to enforce notions of modesty for girls but not boys. Some public schools have required uniforms, but this has hardly solved the problem, as rigid dress codes of this sort are often challenged. In contrast, gender-neutral guidelines about appropriate dress rarely result in challenges.

Gang Symbols and Insignia: Public school administrators often struggle to find ways to minimize gang activity in their schools. Since gang members often identify themselves through clothes and insignia, principals have often turned to dress codes in an effort to discourage gang membership and activities. Courts have generally held that these codes are valid but have sometimes considered such attire as “speech.” Enforcing restrictions such as prohibitions against wearing an earring that symbolizes gang activity is a difficult and potentially frustrating exercise. The chosen symbol may be as traditional form of expression such as jewelry with religious symbolism; it may change from one week; and it may be unrecognizable to outsiders –a shoelace color, the shape of an earring, the way a scarf is tied. An appearance code directed at the prevention of violence can cover so large an area that non-gang members can be denied their expressive rights (see Olesen v. Board of Education of School District, 676 F. Supp. 821 (N.D. Ill. 1982). In sum, gang-related behavior can be monitored and regulated more readily than the insignia used to symbolize those relationships.

Message T-Shirts: With respect to slogans and images on t-shirts, courts have upheld the actions of principals who prohibit students from wearing T-shirts with expressions considered vulgar or offensive. However, courts have been appropriately deferential towards political messages or those that reflect on matters of public concern. One court upheld a school district’s right to ban T-shirts that read, “Co-ed Naked Band: Do it to the Rhythm,” Pyle v. South Hadley School Community, 824 F. Supp. 7 (D. Mass. 1993), and another found the message on a t-shirt, “Drugs Suck,” sufficiently vulgar to allow for its restriction. Broussard v. School Board of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992). Some courts, however, are more receptive to students’ free expression claims and have sustained the right to wear message t-shirts as long as they did not interfere with school activities or other students. Chandler v. McMinnville School District, 978 F.2d 524 (9th Cir. 1992).

Profanity and Suggestive Language: In a 1986 Supreme Court case, the Court upheld a three-day suspension of a high school student whose speech nominating a classmate for a student government position was filled with sexual innuendo: “Jeff is a man who will go to the very end — even the climax, for each and every one of you.” (Bethel School District v. Fraser, 478 U.S. 675 (1986). Since then, courts have been deferential to rules against profanity in school, in one case going so far as to permit termination of a teacher whose students used profanity in their creative writing class. (Lacks v. Ferguson-Florissant Reorganized School District (8th Cir. 1998).) As one federal judge concluded, “[c]ivility is a legitimate pedagogical concern.”

Violence in Schools and “Zero Tolerance” Policies: In the aftermath of violent events resulting in injury and death in several schools in the past few years, there has been a marked increase in discipline of students for behavior deemed “threatening.” While some incidents involve possession of weapons, fighting, or bullying, others involve only expression – poems, short stories, off-hand comments, jokes, or artwork depicting violence.

Violent language and imagery are protected by the First Amendment. There are many important reasons to safeguard the ability to express thoughts about violence. Much classical art and literature, including the Bible, Shakespeare, and The Odyssey, contain violence, as does historical accounts and a great deal of contemporary literature, art, film and theater. Expression that employs or depicts violence has thus been consistently accorded protection by the courts in this country. Unlike obscenity, which is not protected as free speech, violence is treated like other speech entitled to legal protection.

First Amendment cases have acknowledged the connection between political speech, which is highly valued, and violent speech. For example, in Brandenburg v. Ohio, 395 U.S. 444 (1969), the Court recognized the crucial distinction between advocacy of unlawful conduct, which is protected under the First Amendment, and intentional, imminent incitement of unlawful conduct, which is not. NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) held that leaders of the NAACP had a First Amendment right to advocate violence in their efforts to achieve racial justice. The Court held that “mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.” To fall outside the scope of the First Amendment, there must be an “imminent threat” of violence or unlawful conduct.

These cases raise concerns about punitive responses to student fiction, poetry or art with violent themes or imagery. These expressive activities, if unaccompanied by any threatening or disruptive behavior, would ordinarily be considered protected, even in the school context. While educators must be vigilant in guarding against school violence, they face a difficult choice when a student’s only “offense” is expression.

Predictably, the courts have encountered some difficulties applying these principles. In one case, school administrators in Washington State suspended a student who had written a poem about a school shooting. The Ninth Circuit Court of Appeals upheld that decision, but emphasized that its decision was based on a larger factual context, not just the poem that triggered the disciplinary action. The student in the case had expressed suicidal ideations to school personnel, had recently experienced serious family problems that the school knew about, and had just broken up with a girlfriend. Given the circumstances, the court held that the school’s decision to suspend the student pending a psychological evaluation was not unreasonable. (LaVine v. Blaine School District, 9th Cir. 2001.) In another situation, a middle school student in Pennsylvania was expelled after posting messages about a teacher on his Web site, which, among other things, solicited money “to pay for the hitman” to kill the teacher. The court considered his behavior sufficiently threatening and disruptive to the educational process to justify the expulsion. (J.S. v. Bethlehem Area Sch. Dist., 757 A. 2d 412, Pa. Commw. Ct. 2000.)

In contrast, a student who was suspended over artwork depicting the thoughts of a mentally ill person threatening violence was reinstated after challenging the school’s action on First Amendment grounds. (Boman v. Bluestem Unified School District, D. Kan. 2000). In another case, a student whose Web site contained a “mock obituary” for friends with their agreement, was suspended after a local television station characterized it wrongly as a “hit list.” A federal judge ordered the student reinstated pending a hearing, and the case was later settled. (Emmett v. Kent School District, 92 F. Supp. 2d 1089, W.D. Wash. 2000.) And a student in Rhode Island who was suspended because of an essay containing threatening language was reinstated when the school agreed to settle the case. (Parent v. Johnston School Department, D.R.I. 2000.) In these three cases, the courts found no evidence that the students posed a threat, and concluded that they were penalized solely for their thoughts and expression.

These cases suggest that there is little justification for disciplining a student for pure expression, including expression of hatred or works of imagined violence. The equation is changed by the addition of other factors, such as a threat of harm against an identifiable individual, a personal history suggesting grounds for concern, or other facts suggesting the possibility of an actual intent to inflict violence and an ability to carry out such a threat.

Zero Tolerance: Some schools have adopted “zero tolerance” policies to deter violent, threatening, or anti-social behavior in schools. Such policies are often characterized by severe punishment for infractions of school rules, without regard to a mitigating circumstances or a student’s history. Critics claim these policies sometimes go too far, disciplining students for minor infractions and for behavior that is not in fact threatening. The American Bar Association has issued a statement in opposition to such policies because they “fail to take into account the circumstances or nature of an offense or an accused student’s history.” One of the principle concerns, addressed in a report by The Civil Rights Project of Harvard University and others, relates to the impact of “zero tolerance” policies on minority students, who are more frequently subjected to discipline.
The National School Boards Association, which views “zero tolerance” for threats of violence as successful in curbing violence in schools, nonetheless cautions that policies must “preserve constitutional rights.” NSBA counsels that policies “should define the offense to exclude expression protected by the First Amendment. Vague and overly broad policies are more vulnerable to court challenge.”

Common sense in achieving the important goal to preserve school safety is obviously needed, along with an understanding that speech and other forms of pure expression enjoy certain protections. Aside from constitutional considerations, schools should foster rather than suppress the ability to express anger and fear in non-threatening, socially constructive ways – by encouraging students to explore the difficult issue of violence through dialogue, fiction, art, and drama.