Experts: Schools often win dress code cases, but must reasonably forecast disruption

Apr. 25, 2012

Gibson County High School senior Texanna Edwards is the latest in a long line of American students who have clashed with school officials over a controversial garment or symbol on a piece of clothing. According to some legal experts, the Confederate flag has been at the center of many cases involving purses, T-shirts, jewelry and at least one other prom dress.

Edwards, 18, said she was banned from attending her senior prom last Saturday because of her dress, which resembles the Confederate battle flag. She has said she would look into pursuing legal action.

David Hudson Jr., a First Amendment scholar with the First Amendment Center in Nashville, has written several articles and books on the topic of student speech. He said there have been several court cases dealing with students being punished by their schools for what was ruled as inappropriate clothing. Specifically, Hudson said there have been many cases involving the Confederate flag.

In cases debating a student’s freedom to wear Confederate-themed clothing, courts generally apply the Tinker standard — which was the established after a 1969 case where students were suspended for wearing black armbands to protest the Vietnam War. The court held that public school students had the right to wear the armbands because the school system had no proof they alone could cause a disruption. That has become the standard in future cases involving similar situations, Hudson said.

“Can school officials reasonably forecast a Confederate flag will cause disruption of school activities?” he asked. “Given the racial tension and given the Confederate flag, there is a reasonable forecast.”

There was a case in 2001 in Kentucky that reached the 6th Circuit. The student wore a Confederate flag T-shirt from a Hank Williams Jr. concert and that court held in favor in of the student, Hudson said. That case is known as Castorina v. Madison County School Board.

“They can’t flat out ban something because they don’t like it,” Hudson said. “They may prohibit something if they can point to an incident that may lead to problems or fights at school. You want to show that there’s been any type of disruption. You have to be able to point to something; you can’t just do it because there may be disruption without a factual context — there must be reasonable belief that can happen.”

School position

On Monday, Eddie Pruett, director of the Gibson County Special Schools District, said there have been racial tensions in recent years. He also said the dress code for each school is left to the discretion of the principal. Pruett was the principal of the high school until the end of the school year in 2011, before current Principal James Hughes succeeded him this year.

According to the school district policy, “When a student is attired in a manner which is likely to cause disruption or interference with the operation of the school, the principal shall take appropriate action, which may include suspension.”

The school’s dress code says students cannot wear clothes with holes or frays, tops that reveal the midriff or show cleavage, transparent clothing, short skirts and shorts, tanks tops and hats. Baggy pants are also prohibited.

“Clothing, which is in the opinion of the principal suggestive or revealing, will not be allowed. Certain shirts with printed material on them will not be allowed,” the dress code says.

The school offered the example of a T-shirt with a beer advertisement. There is no specific mention of banning politically or religiously controversial images on clothing.

Hudson said if he was arguing for Edwards, he would say banning her from prom was a “knee-jerk reaction” as the result of the Confederate flag being a controversial symbol and school officials not listing any specific facts that led to a disruption of a school function.

“If I was arguing for the school, I would say it’s racially divisive symbol and that it caused disruption in the past,” he said. “More cases have been found in favor of the schools than the students, so they also have that.”

Tinker established a standard — that school officials can punish student expression only if they can reasonably forecast that such student expression will cause a substantial disruption or material interference with school activities, Hudson said.

The First Amendment scholar said that in Castorina, the 6th Court of Appeals ruled in favor of the student, saying school officials selectively targeted certain symbols.

“There was testimony from other students who said students were allowed to wear Malcolm X T-shirts, things like that,” he said. “The school board can’t single out the Confederate flag as a controversial symbol but allow others. And there wasn’t a showing of substantial disruption. That student also had at least one African-American student testify on her behalf saying they weren’t offended by the shirt.”

NAACP responds

Harrell Carter, president of the Jackson NAACP branch, said decisions about banning certain types of clothes or symbols on clothes have to be left up to the school administration.

“They know the culture of their school well enough to make a decision such as this,” he said. “And to determine if there was a high volume of concern for the Confederate flag and its connection to slavery and the oppression of people.”

Carter said advocates for individual freedoms and believes freedom of speech is important.

“But you don’t want to be the one to yell, ‘Fire!’ in a crowded theater with no fire or create a type of atmosphere that leads to other things,” he said. “If they felt it was inappropriate to do so, I’d have to leave it up to them. It’s a fine line.”

Given the potential volatility with the Confederate flag, Carter said he would have to lean on the side of the school administrators to use their best judgment. He said doesn’t know what Edwards’ intent was or why she felt compelled to wear the dress.

“Was it to incite other people? I would have to agree with the administration if they think they prevented something bad that could’ve happened,” he said. “I lend my support to their decision. The Confederate flag causes a lot of issues and problems, and we’ve never been adult enough in our local communities to teach our children about that period of time.”

Different people view the flag in different ways, Carter said, either as the symbol of traitors who started a war or as a symbol of fighting for states’ rights.

“I think history is clear on the regard that the Confederacy would’ve torn this country apart if not for the decision Lincoln and others made to prevent the creation of other slave states. Unfortunately, we still have to fight this war in this century,” he said.

More case law

Barbara Kritchevsky, a professor of law at the University of Memphis Cecil C. Humphreys School of Law, said this story sounds similar to recent cases involving gay students wanting to bring their dates to prom.

“It’s hard to speak to this without knowing what the rules there are. Is there a dress code (for the prom)? If I wore jeans and a T-shirt, could I get in?,” she said. “There is no question that a school can have a dress code for a prom. But generally, if you’re censoring a political message and you let someone wear a pro-choice button, you couldn’t not let someone in with a button that says pro-life.”

Kritchevsky said normally school officials have the leeway to enforce school dress code rules for an educational environment. Prom is not educational, she said.

“If prom is something you need to buy a ticket to, it certainly raises First Amendment issues and one’s right to speak freely,” she said. “In terms of whether she has a case … it depends on whether there is a dress code or notice of some requirements. Must the clothes be approved? If there is some teacher in charge, that suggests it is some sort of school function and implies putting someone on notice there is some sort of dress code.”

Edwards said on Monday that the only person who voiced concern about her prom dress beforehand was a teacher who was serving as prom sponsor. The teacher told Edwards the dress might be considered “inappropriate,” but Edwards never spoke with school administrators about the dress because students had worn attire with Confederate flag emblems to school before, the student said Monday. Edwards has said she wanted to wear the custom-made dress because she thought it would be unique and reflect her Southern heritage.

“It’s become sort of an issue of trying to have clothing appropriate for the occasion,” Kritchevsky said. “Are they really trying to censor a certain viewpoint? That’s a real First Amendment issue. It seems like you’d have an argument that that’s what’s going on. The school might have a neutral policy saying it has the right to limit attire at prom.”

Kritchevsky said this incident touches on the issue of freedom of speech, but isn’t sure whether there was a violation of that freedom.

“The school is in the best position if it has a clear policy on the front end in neutral terms — a dress code for prom, etc,” Kritchevsky said. “And it’s not like she was suspended and this would affect her chances of going to college. But that doesn’t mean this doesn’t implicate First Amendment violations; but there are not the same repercussions as a suspension or something would bring.”

Copyright © 2012

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