Tinker is the main case on symbolic clothing in school, that I know of.
December, 1965, students wore black armbandsin school to the Vietnam war. School ordered them to take the armbands off. Students suspended. Lower courts decided against students. Supreme Court found for students, Fortas writing. "First Amendment rights, applied in light ot the special characteristics of the school environment, are available to teachers and students." Note teachers and students both. "The school banned pettioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners."
Tinker v. Des Moines School District, 393 U.S. 503 (1969)
Ironically for our discussion here, the court noted that the restriction on symbolic speech was not consistently applied by the school administration because "The records shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these." So in 1969 it was okay to wear an Iron Cross, but not a black armband to protest the war. Do we detect a sea change in our contemporary approach to these two symbols? Which would your school be more likely to prohibit now?
I haven't kept up with the post-Tinker line of cases, so don't know about baseball hats (clothing is a sort of semi-protected right, unless it is used for political speech, in which case it becomes highly protected), or gang colors (is the right of freedom of associtation relevant here? If the school allows, say, the wearing of Key Club pins or PAL sweatshirts or scout uniforms, which denote membership in an "approved" club (if scouts are still approved in your school, maybe brownies is a better example), can the school ban gang colors because it doesn't approve of the activities of those clubs or associations? Under the Warren Court, I think the answer would be that you couldn't. Today, the answer may be different. But Tinker hasn't, I think, been overruled.
I just remembered that I got a text on "American Public School Law" about 10 years ago when I was peripherally involved in a school rights case. It's a 1985 text, so not current, but says that "Government cannot limit speech where the dangers are merely perceived or are not "present" or "imminent." "no danger flowing from speech can be deemed clar and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies,to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Brandeis Whitney v. California, 274 US 357 (1941). Tinker doesn't allow prohibition just to avoid "discomfort and unpleasantness that always accompany an unpopular viewpoint," but only if they represent a "material and substantial disruption" of the educational process. But again, this doesn't have recent decisions in it.
Here's a question for you. If you, as a lawyer, look into this and find that the school is probably violating its students' rights by banning gang clothing, do you have any obligation to refuse to enforce a school policy which you believe to be violative of students' constitutional rights? Do you teach your students, by your example, that rights are important? Or do you participate in the probable (assuming it is so) violation of their rights? |
