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Old 04-22-2006, 07:16 AM   #16
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Dress Codes Are Back in Style

School uniforms upheld; Marilyn Manson expelled.

Rejecting student free speech claims, three recent court rulings have forcefully reaffirmed the broad authority of school officials to tell students how to dress.

Last January, the U.S. Court of Appeals for the Fifth Circuit became the first federal appeals court to uphold a mandatory school uniform policy for public school students.

Citing the need to reduce disciplinary problems, Louisiana's Bossier Parish School Board in 1999 adopted a requirement that all students wear uniforms to school beginning with the 1999-2000 school year. Each school was free to choose between two colors of polo or oxford shirts, and navy or khaki pants.

A group of 40 parents sued, claiming a First Amendment violation.

The appeals court agreed that a student's clothing is a form of "pure speech" that can express the student's "ethnic heritage, religious beliefs, and political and social views."

But that free speech right, the court said, is trumped by the right of educators "to decide what constitutes appropriate behavior and dress in public schools."

Why? Because school officials testified--without contradiction--that the new uniform policy actually "drastically decreased" discipline problems and "improved ... overall test scores."

"It is not the job of federal courts to determine the most effective way to educate our nation's youth," the court cautioned.

In a case now pending before the U.S. Supreme Court, the Sixth Circuit Court of Appeals last year upheld an Ohio school district's ban on wearing Marilyn Manson T-shirts in school.

The reason? The court agreed with school officials that the T-shirts could be outlawed because the controversial rock band is a bad influence on young people.

Van Wert High School senior Nicho-las Boroff ignited the controversy in August 1997 when he wore a Marilyn Manson T-shirt to school. The front of the shirt depicted a three-faced Jesus and the words, "See No Truth, Hear No Truth, Speak No Truth." The back of the T-shirt carried the word "BELIEVE" with the letters "LIE" highlighted.

Citing a school rule prohibiting "clothing with offensive illustrations," the principal told Boroff that Marilyn Manson T-shirts are banned on campus and gave him the option of turning the T-shirt inside-out or going home. He opted to go home.

But for the next five days, Boroffcontinued to wear Marilyn Manson T-shirts, each featuring a differentpicture of the band's lead singer. And each day, he was sent home.

When he later sued, school officials argued that the band "promotes disruptive and demoralizing values which are inconsistent with and counter-productive to education."

And the court agreed, citing media reports that the group's lead singer, also named Marilyn Manson, "promotes drug use," "is popularly regarded as a worshipper of Satan," and sings lyrics advocating suicide, mayhem, and violence.

The court also accepted the principal's testimony that "children are genuinely influenced by the rock group and [its] propaganda."

The school has the authority to ban the group's T-shirts, the court concluded, because they "contain symbols and words that promote values that are ... patently contrary to the school's educational mission."

Boroff has filed an appeal with the Supreme Court, but the Court has not yet decided whether to hear the case.

And in Jefferson County, Kentucky, last year, a federal district court upheld one of the most restrictive and detailed dress codes in the country.

The policy bans shirts made of denim or spandex, those with hoods or zippers, collarless shirts, and red or blue shirts.

Also taboo are pants made of denim, nylon, or spandex; pants that are frayed, bagging, or sagging; and biker, bib, capri, cargo, and clam digger pants.

The court found that the dress code was adopted to "help reduce violent gang activity, ease tensions between students who fight over attire, aid school officials in identifying campus intruders, and promote student safety in general."

The school's goal of creating a "safe and peaceful environment," the court ruled, outweighs students' right to express themselves through their choice of clothing.

--Michael D. Simpson
NEA Office of General Counsel

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Old 04-22-2006, 07:17 AM   #17
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In 2005, 16-year-old Zach Hust was punished by his school for wearing this t-shirt. After the ACLU of Ohio intervened, Dublin Jerome High School officials agreed to stop censoring Zach and other students who wanted to wear t-shirts supporting marriage for same-sex couples.

T-shirts – as well as hats, buttons, and other wearable items – are a common way for students to express their views on everything from political races to social issues. Schools have a long history of trying to censor this form of speech, especially when it's about lesbian, gay, bisexual, and transgender people.

In 2005, the ACLU filed a lawsuit in federal court against a Webb City, Missouri high school that twice punished LaStaysha Myers, a heterosexual 15-year-old student, for wearing t-shirts expressing her support for gay rights. In contrast, administrators routinely allowed students to wear shirts expressing other messages, including endorsements of the Bush and Kerry presidential campaigns and opinions on abortion. The lawsuit was settled when the school promised that it would no longer censor Myers for wearing t-shirts bearing gay-supportive messages.

The ACLU often hears from students whose schools have told them they can't wear t-shirts with messages about their opinion on LGBT people. If you're thinking about wearing an LGBT-positive t-shirt to school and you expect trouble, here's what you should know and what to expect.

No Obscenities, No Threats, Nothing Lewd or Vulgar

Wearing an LGBT-positive t-shirt is speech or expression, protected by the First Amendment to the U.S. Constitution. In Tinker v. Des Moines Independent Community School District, the landmark case establishing student free speech rights, the Supreme Court said that students are not required to "shed [their] constitutional rights to freedom of speech or expression at the schoolhouse gate."

This does not mean that you can put anything on your t-shirt and parade it around the campus. The law allows schools to ban obscene, threatening, or "lewd or vulgar" speech. You probably get what "obscene" or "threatening" speech is, but what is "lewd or vulgar?" The best way to explain that is to give you a real-life example. In Bethel School District No. 403 v. Fraser, the Supreme Court ruled that a school could suspend a student for making this speech nominating another student for student government office:

I know a man who is firm – he's firm in his pants, he's firm in his shirt, his character is firm – but most of all, his belief in you, the students of Bethel, is firm.

Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts – he drives hard, pushing and pushing until finally – he succeeds . . . .

Well, you get the point.

Nothing That Will Disrupt Classes

The law says that other than for speech that falls into one of the banned categories listed above, students may express their views freely. There is a big "but" to this rule and that's where most of the court battles about t-shirts have focused. Students may express themselves freely but this may not significantly disrupt classes or interfere with the rights of others.

In deciding whether school authorities acted lawfully when punishing a student for wearing a particular t-shirt or forcing a student not to wear a controversial t-shirt, courts rigorously examine the facts of the matter to make sure that what's really going on is not flat-out censorship of an unpopular opinion – something the law is clear that schools can never do. If school authorities claim that a message on a t-shirt will cause a disruption, their fear of disruption must be backed up by facts.

Tinker provides a good example. In this case, a group of students who wanted to protest the Vietnam War planned to wear black armbands to school. When school officials learned of the plan, they adopted a rule banning the armbands. The Supreme Court decided that despite strong feelings surrounding the war and student dissent of it (a former student of the high school had been killed in the war), school authorities did not have enough evidence to support their fear that wearing black armbands in class to protest the war would significantly disrupt the school or impair the rights of others.

Courts are clear that a school's concern about other students' possible hostile reactions to a message on a t-shirt does not justify censoring it. This point is critical because school officials often try to justify censoring LGBT-positive expression by claiming that they are fearful of disruptions caused by students offended by the expression.

Two examples. In Boyd County High School Gay Straight Alliance v. Boyd County Board of Education, a federal court ruled that public protests over the presence of a GSA at a high school, including a sick-out by half of the high school, did not justify shutting down students' expressive activity, which was not itself disruptive. And in Fricke v. Lynch, another federal judge ruled that a principal's concern about other students' possible violent reactions if a gay couple were allowed to attend the prom did not justify suppressing the couple's right to free expression. This judge explained his decision this way: "[t]o rule otherwise would completely subvert free speech in the school by granting other students a 'heckler's veto,' allowing them to decide through prohibited and violent methods what speech will be heard."

Legal Tips

If you end up in a fight with school authorities over your t-shirt, the facts are critically important, so collect and write them down. Find out, for example, whether the same or similar t-shirts have been worn to school and what, if anything, happened. Keep track also of when school authorities stepped in to tell you to turn your shirt inside out or to send you home to change. If it happened before classes started, for example, it's pretty hard to say that your t-shirt disrupted anything.

Find out, too, whether other students have been allowed to express opinions at odds with yours at school. In a recent case the ACLU did in support of a student wearing a t-shirt that said "I'm gay and I'm proud," the fact that another student had earlier worn a t-shirt that declared "Adam and Eve, not Adam and Steve" without interference from the principal was critical to the success of the case.

If you're censored, keep things cool and simple. Remain calm and polite and comply with any order from your principal or teacher. Obeying an order from a school official does not mean you agree with it and does not affect your right to challenge it through the proper channels later on. Refusing to change t-shirts or getting into an argument with school officials only muddies the issue, and not cooperating might provide the school with an excuse to deflect blame for its censorship onto you by saying you were insubordinate or disruptive. Remember to keep a copy of any written document the school gives you on this matter and to write down the name and contact information of any person who witnessed any exchange between you and a school official over your t-shirt.

You should know that the law about expressive t-shirts in school as described above applies just to students in public schools. Private school students have fewer rights.

Speak Out

In giving you this summary of the law on t-shirts and student expression in schools, the ACLU does not mean to discourage you from speaking out in support of equality for LGBT people. That so many schools today treat their LGBT students with fairness and respect is due directly to students like you who spoke up against injustice. If you decide to speak out, whether it be through your t-shirt or otherwise, and get in trouble, let us know. We can help. Contact us at, fill out our online intake form, or call us at (212) 549-2673. It's confidential – we won't ever contact your school, your parents, your friends, or anyone else without your okay, and any communication between you and the ACLU is private.

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Old 04-22-2006, 07:19 AM   #18
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Disagreeing over Dress
Can schools restrict student expression because it conflicts with the values they want to instill?
By Benjamin Dowling-Sendor

Disputes over student dress and grooming are a perennial problem in school law. Ever since the 1960s, when boys sported long hair, girls wore miniskirts, and students used their appearance to express countercultural values, school officials and courts have grappled with the constitutionality of dress codes. The typical question in such cases is whether rules about clothing and grooming violate students' right to freedom of expression under the First Amendment.

A recent decision by the U.S. Court of Appeals for the Sixth Circuit in a case from Ohio -- Boroff v. Van Wert City Board of Education -- illustrates the current trend among courts to give school officials wide discretion to establish and enforce standards of appearance. However, Boroff also illustrates the continuing difficulty courts face in articulating clear and consistent criteria for evaluating the constitutionality of school dress policies.

An offensive shirt
The dispute arose on Aug. 29, 1997, when Nicholas Boroff, a senior at Van Wert High School, wore a "Marilyn Manson" T-shirt to school. Marilyn Manson is the stage name of "goth" rock performer Brian Warner, as well as the name of his band. Goth rock combines heavy metal and punk rock. Performers and fans have their own fashion style, marked by black clothing, heavy silver jewelry, black eye makeup and lipstick, and pale face makeup. The front of Boroff's T-shirt showed a three-faced Jesus, the words, "See No Truth. Hear No Truth. Speak No Truth," and Manson's name. The word "BELIEVE" was on the back of the shirt in capital letters; the letters "LIE" were highlighted.

At that time, the school had a dress and grooming policy stating that "clothing with offensive illustrations, drug, alcohol, or tobacco slogans ... [is] not acceptable." Chief Principal's Aide David Froelich told Boroff that his shirt was offensive and that he must turn the shirt inside-out, go home and change shirts, or leave as a truant. Boroff left.

The next school day, Sept. 4, Boroff wore another Manson T-shirt. That day, he and his mother met with Froelich, Principal William Clifton, and Superintendent John Basinger. Basinger said that students could not wear Marilyn Manson T-shirts on school grounds. However, Boroff wore T-shirts with different Manson T-shirts pictures on the next three school days. On each day, school officials told Boroff that he could not wear the shirts to school. Boroff skipped school for the next four days.

On Sept. 16, Boroff's mother sued the school board and school officials in Federal District Court, claiming they had violated her son's First Amendment right to free expression and his Fourteenth Amendment right to due process. The Federal District Court ruled for the school board without a trial, and the Boroffs appealed to the Sixth Circuit.

Supreme Court precedents
The Sixth Circuit affirmed the lower court's ruling for the school board by a 2-1 vote. Judge Harry W. Wellford's majority decision focused on the tension among three U.S. Supreme Court decisions: Tinker v. Des Moines Independent Community School District (1969), Bethel School District No. 403 v. Fraser (1986), and Hazelwood School District v. Kuhlmeier (1988).

In Tinker, the Supreme Court ruled that school officials violated students' First Amendment rights by prohibiting them from wearing black armbands to oppose American involvement in the Vietnam War. The high court observed that the case did not involve rules about skirt length, clothing type, or hair length. Rather, it involved the restriction of students' freedom to express their opinions. Since the prohibition restricted students' First Amendment rights, it was unconstitutional unless officials could show that wearing the armbands would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."

In Fraser, however, the Supreme Court upheld the decision of school officials to discipline a student who gave a lewd speech at a school assembly. The Supreme Court emphasized the difference between the political message expressed by the armbands in Tinker and the sexual content of the student's speech in Fraser, explaining that the lewd speech was not related "to any political viewpoint." The court ruled that the First Amendment did not prohibit the school district from sanctioning vulgar speech that would undermine the educational mission of the school.

In Kuhlmeier, the Supreme Court upheld school officials' censorship of student-written material in a school-sponsored newspaper as long as the restrictions were "reasonably related to legitimate pedagogical concerns." The Supreme Court observed that the issue in Fraser was the vulgar nature of the speech, while the issue in Tinker was whether wearing the armbands would "materially ... disrupt classwork or involve substantial disorder." That is, the potential for disruption was the crucial consideration in Tinker.

In contrast, in Fraser and Kuhlmeier, school officials did not have to prove that the students' expression would cause disruption in order to justify restrictions on the content of expression. In those two cases, the Supreme Court held that officials could restrict the content of student expression if such expression conflicted with the schools' educational mission.

While Fraser and Kuhlmeier might seem to conflict with Tinker, the judges on the Sixth Circuit panel found no contradiction. Under Tinker, they reasoned, school officials cannot impose restrictions on the content of student expression simply because they disagree with the student's message. Under Fraser and Kuhlmeier, they wrote, school officials can restrict the content of student expression if the expression conflicts with the school's teaching mission -- as long as they do not restrict such expression merely because they disagree with the student's message or viewpoint about the topic of the student's expression.

Judge Wellford concluded that the school officials in this case banned the Marilyn Manson shirts because the shirts were offensive -- not because they disagreed with Boroff's viewpoints. Principal Clifton found the shirts offensive "because the band promotes destructive conduct and demoralizing values that are contrary to the educational mission of the school," Wellford wrote. The principal found the shirt about Jesus offensive because "[m]ocking any religious figure is contrary to our educational mission which is to be respectful of others and others' beliefs." In a court document, Clifton further explained that Manson's lyrics and views as reported by the media are "offensive to our basic educational mission at Van Wert High School."

Clifton quoted lyrics from some of Manson's songs in a court document, including lyrics about suicide, murder, and lewd gestures. Clifton stated that such lyrics conflicted with the school district's goal of establishing "a common core of values that include ... human dignity and worth ... self-respect, and responsibility" and its goal of instilling "an understanding and appreciation of the ideals of democracy and [helping students] to be diligent and competent in the performance of their obligations as citizens." Clifton also cited magazine articles depicting Manson as a user of drugs and as promoting drug use.

Judge Wellford concluded that the First Amendment did not prohibit the school district from banning Marilyn Manson T-shirts under the district's constitutional authority to regulate student speech that conflicts with the school district's basic educational mission. Wellford wrote that the school district did not ban the shirts to suppress Boroff's viewpoint, but because the rock group "promotes disruptive and demoralizing values which are inconsistent with and counterproductive to education."

A dissenting view
In an insightful dissenting opinion, Judge Ronald Lee Gilman found that the school banned the shirts because of the content of their political and religious messages. That is, school officials deemed the shirts to be "offensive" precisely because of their content. For example, Gilman observed, the T-shirt with the three-faced Jesus did not contain any obscene or vulgar language (in contrast to some of Manson's lyrics). School officials banned it, Gilman believed, because they disagreed with its message -- a rationale for censorship that conflicts with the First Amendment under Tinker. Gilman had no problem with banning Manson shirts because of Manson's alleged endorsement of illegal drug use, but Gilman found that the actual rationale for the ban of the three-faced Jesus shirt was the shirt's expression of disrespect for a religious figure.

Gilman also observed that in Fraser and Kuhlmeier, the Supreme Court emphasized that school officials felt a legitimate need to dissociate the schools from student expression in the context of official school activities that would interfere with the schools' educational mission. In this case, however, wearing the T-shirts was private conduct, and there was no danger that anyone would misinterpret Boroff's T-shirts as expressing the official views of the school district.

It seems to me that Judge Gilman has identified the underlying flaw in the majority's analysis. School officials did, indeed, ban the Manson shirts because of the content of the messages they conveyed, not because of the offensive nature of the words or graphics. Neither the words nor the graphics were offensive in themselves. For example, the words were not obscene. Rather, it was the meaning of the words and graphics that offended officials (and me, too, by the way).

In the end, despite the efforts of all three judges to reconcile Tinker with Fraser and Kuhlmeier, I believe this case demonstrates a basic conflict among the three earlier cases. Fraser and Kuhlmeier permit school officials to regulate nondisruptive student expression that conflicts with educational goals, while Tinker permits officials to impose content-based restrictions on student expression only if the expression is disruptive.

But what would the Supreme Court say about a case in which school officials impose content-based restrictions on student expression not because such expression is disruptive, but rather because the content of the expression conflicts with values the school district spent years to instill in students? That's the hard, and still-unresolved, question at the heart of Boroff.
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Old 04-22-2006, 07:22 AM   #19
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Student rights and board power
The next step in the analysis, then -- and the hardest one -- is to figure out which level of scrutiny to use in balancing a student's First Amendment rights against the school board's power to control student conduct. Judge Parker explained that the Supreme Court has established three categories of student speech rules, each with its own level of scrutiny.

The first category involves regulations about student expression of political views. In Tinker, the Supreme Court ruled that school officials cannot suppress student expression of political views unless they can show that such expression would "substantially interfere with the work of the school or impinge upon the rights of other students." This level of scrutiny of school regulations is the highest, most demanding level.

The second category includes rules against lewd, obscene, or otherwise offensive speech. For example, in its 1986 decision in Bethel School District No. 403 v. Fraser, the Supreme Court upheld the suspension of a student who had given a speech with sexually suggestive metaphors at a school assembly. Officials found that the speech was not appropriate for a student audience. Distinguishing Fraser from Tinker, the Supreme Court wrote that unlike the penalties imposed on students in Tinker, the penalty imposed in Fraser was not related to the student's expression of a political viewpoint.

The third and final category of regulations pertains to student expression that is related to a school-sponsored activity. In its 1988 decision in Hazelwood School District v. Kuhlmeier, the Supreme Court upheld school officials' censorship of articles written by students for an official school newspaper about pregnancy and the impact of divorce on teenagers. Also distinguishing this case from Tinker, the Supreme Court concluded that school officials may regulate school-sponsored activities related to the curriculum if the regulation is "reasonably related to legitimate pedagogical concerns."
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Old 04-22-2006, 08:22 AM   #20
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I think these cases generally say that schools have broad latitude to set dress codes, but don't have the right to be inconsistent about it.

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Old 04-29-2006, 05:26 AM   #21
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Boy could do with some fashion sense
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Old 04-29-2006, 10:36 AM   #22
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What an ugly t-shirt.
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Old 04-29-2006, 10:47 AM   #23
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I'm surprised the spelling wasn't totally off
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Old 04-30-2006, 04:20 PM   #24
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Originally posted by A_Wanderer

Boy could do with some fashion sense

this is the message i hear whenever i turn on a TV, see a movie, read a book, walk down the street, hear a radio broadcast, go to a wedding, go to a restaurant, endure valentine's day, or spend a day where i interact with other people.

i suppose some of us need even more support that we have to pat ourselves on the back for living up to the most easiest expectations of society.

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