California Judge Determines School Dress Code Is Too Strict



Diane McMillan's picture

by Andre F. Mayes

Upholding the principle that students do not “shed their constitutional rights at the schoolhouse gate,” a California state court judge recently blocked a middle school from enforcing a strict dress code policy. Scott v Napa Valley Unified School District, No. 26-37082 (Cal Super Ct July 2, 2007).

In 1998, Redwood Middle School adopted a student dress code policy to control an emerging problem with gangs in the school.

In 2005, the school revised the dress code policy to require that “all clothes will be plain (no pictures, patterns, stripes or logos of any size or kind.” The policy only allows solid-colored clothing in blue, white, green, yellow, khaki, gray, brown, and black; and prohibits jeans, denim, knit, sweat pants, sports-nylon, and fleece.

During the 2006-2007 school year several students were disciplined for wearing blue jeans, socks with the image of Winnie-the-Pooh’s Tigger character, an American Cancer Society pink ribbon for breast cancer awareness, a vintage high school sweatshirt, a backpack with the brand name “Jansport” written in red, a heart sticker on Valentine’s Day, a t-shirt with the words “D.A.R.E. to resist drugs and violence,” and a t-shirt reading “Jesus Freak.”

The students filed suit against the Napa Valley Unified School District and administrators, alleging the dress code policy violates their free speech rights guaranteed by the United States and California Constitutions.

In addressing the students’ free speech claims, the court cited the recent United States Supreme Court decision in Morse v Frederick, 127 S Ct 2618 (2007), as upholding the well-settled principle that student expression is protected as long as it does not “materially and substantially disrupt the work and discipline of the school.” Tinker v Des Moines Independent Community School District, 393 US 503, 513 (1969). 

The students maintained that the dress code policy constitutes an absolute ban on expressive content and thereby violates Tinker. The students also maintained that the overbroad nature of the dress code policy resulted in students being disciplined for “wearing items that articulate protected expressive content.” Finally, the students argued that the broad restrictions on speech imposed by the dress code policy “bear no substantial relationship to the claimed purpose of the policy of deterring gang-related problems at school.”

The school district countered that although Tinker and its progeny stand for the proposition that students have a right to protection for purely political speech, recent federal case law makes it clear that students have no constitutionally protected right to make a fashion statement. Bly v Fort Thomas Public School District, (6th Cir 2005).

The court opined that since some of the students had, in fact, engaged in expressive conduct that conveyed a “particularized message subject to First Amendment protection,” the burden was on the school district to produce evidence that justifies the policy’s abridgement of the students’ Constitutional free speech rights. To meet its burden, the school district asserted that the dress code policy furthers the important governmental interests of providing a safe school environment and of preventing gang activity on campus by making it easy to distinguish Redwood students from campus intruders.

The court determined that while the dress code policy’s broad reach encompasses gang-related wear, the justification for the policy only demonstrated that it may facilitate the identification of outsiders who happen to come on campus wearing non-approved clothing. The court found that the dress code policy is not tailored to meet the school district’s legitimate gang-prevention concerns. The court emphasized, however, that “an appropriately tailored regulation of attire to prohibit gang-related apparel, symbols, etc. is constitutionally permissible.”

In light of this decision, it may be prudent for local school districts to review their student dress code policies to ensure that they are narrowly tailored to meet their stated purposes.

If you have any questions concerning the Scott decision or student dress code policies, please contact André F. Mayes at (248) 988-5893 or amayes@clarkhill.com, or your Clark Hill Education Law attorney.