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NO SHOES, NO SHIRT, NO EDUCATION: DRESS CODES
AND FREEDOM OF EXPRESSION BEHIND THE
POSTMODERN SCHOOLHOUSE GATES
Alison G. Myhra'
Even for an adult it is not always easy to acquire and maintain a desirable attitude toward the problelnii of life. All the more one has to refrain from demanding indiscriminatingly that the teacher impart to his pupil the right attitude for the rest of his life . . . .
Johann Friedrich Herbart'
I just ion't see how an earring [on a male student] can make any positive
statement in an educational environment.
Lee McGheeI. THE RENEWED INTEREST IN MANNERS AND DRESS CODES
IN TODAY'S PUBLIC SCHOOLS
By all accounts, the conclusion to be drawn is clear: the center, if there
• Associate Professor of Law, Texas Tech University School of Law. B.A., B.S.Ed.,
University of North Dakota, 1982; J.D., University of North Dakota, 1985; LL.M., Harvard University, 1991. 1 am grateful to Professor Marcia O'Kelly for her advice and en-
couragement during the writing of tJiis article.
1 Johann Friedrich Herbart, Brief Encyclopedia of Practical Philosophy, ch. XII, §
103, reprinJed in THREE THOUSAND YEARS OF EDUCATIONAL WISDOM: SELECTIONS FROM
GREAT DOCUMENTS 508-09 (Robert Ulich ed., 2d ed. 3d prtg. 1982).
2 Dave Nelson, Making a Fashion Statement: Andrews Trustees Tighten Style Rules
With New Dress Code, LUBBOCK AVALANCHE-J., May 15, 1996, at lA (quoting Lee
McGhee, School Board Trustee, Andrews, Texas).
T
'oJ". -'
ever was one, has not held.' We live in a postmodem world in which many, if
not most, believe in the coexistence of shifting and contradictory value systems
and realities' among individuals. 5 As we have moved from modernism to
6
postmodernism, challenges to our moral traditions, social values, and institutions have been frequent. 7 As a result of this cultoral and philosophical trans-
339
DRESS CODES AND FREEDOM OF EXPRESSiON
1999
a:
.
underl ing suspicion or cynicism that not eveformation, there eXIts to~y
"AmZrican Dream" will do so, and, furtheralize that dream in the fIrst instance.8 In
ryone who seeks to reahze :
more, that not everyone se~ tr:i~~ns social values, and institutions that was
sum, the conse~su~
m~r decades has given way to some degree of moral
perceived
to eXIst mon
prevIous
9
3 This notion has many sources. including my father, who is a retired district-wide
school administrator in suburban Minneapolis. His specialty is the K- 12 curriculwn and its
development. My mother, a retired teacher and former nurse, agrees with this sentiment.
The genesis of this article was an event !hal occurred approximately one year ago. My
father agreed to serve as the substitute assistant principal at the high school in his former
school district so that the assistant principal could attend a conference. One afternoon, my
father spotted an argument petween some students. Fearing a group altercation. he intervened. Fortunately, he was able to diffuse the situation before any real. trouble developed.
Unfortunately, however, in the course of dealing with these students, one male student took
a running start and charged at my father, who is well over six feet tall. While neither my
father nor the student sustamed any iIljuries, my father's suit coat and trousers were ripped
in several places. When he returned home that evening. he reported to my mother that he
had been in a fight at school. This event prompted a family discussion about schools, students. manners. and dress codes. including dress codes for school administrators. I am
grateful to my parents for providing me with their collective wisdom regarding schooling
and teaching.
4 By "shifting and contradictory value systems and realities" I mean that there is no
single paradigm or outlook for rendering the world ordered. Individuals do not uniformly
share the same underlying assumptions about life. Rather, they choose from alternative
moral codes, understandings, and ways theoretically to view life, to describe it, and. ultimately, to understand it.
5 According to Professor Mary Ann Glendon, "[w]e are all post-modernists now."
SEEDBEDS OF VIRTUE: SOURCES OF COMPETENCE, CHARACTER, AND CmZENSHIP IN
AMERICAN SOCIETY 4 (Mary Ann Glendon & David Blankenhorn eds., 1995) [hereinafter
SEEDBEDS OF VIRTUE].
"Postmodernism" is different from "modernism" in that the latter signifies a societal
recognition of the complexity of life but at the same time a societal belief that there exists a
singular frame. for example. value system and reality, for all indiViduals. See GARY
MINDA, POSTMODERN LEGAL THEORIES: LAW AND JURISPRUDENCE AT CENTURY'S END 1-6
(1995) (discussing modentism and POSlInodentism). Some have observed, however, that
"postmodern" has no meaning, except in architecture. See, e.g., Lewis D. Sargentich,
Class Lecture, Theories About Law, Harvard Law School (Nov. 27, 1990). Sargentich prefers to talk about "modernism" and its notion of multiple frames. none privileged. See id.
6
7 See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY:
RiGHTS, RESPONSmlt.1TIES, AND
THE COMMUNITARIAN AGENDA 12 (1993). Of course, oftentimes the challenges were and
continue to be for valid reasons. See id.
•
and ambivalence is nothing less than a
confusion and social anarchy.
They attribute the breakdown and
For some, the cultoral cOnfuSIOfn I'e
I te b akdown of our way a lie.
. ''!"b
camp e
re
.
.
hasis on individual rights, a pervasIve 1moral decline to the mcreasmg erop.
d tl ks 10 and the decline of
" f all tastes world VIews, an au 00 ,
eral tolerance a
..'
..
. and school authorities, among
traditional
societal,
religIOUS,
pOhtlc~d
family,
the printary contributing factor,
others. 11 Moreover, they see the bre own as
<
8
See SEEDBEDS OF VIRTUE. supra note 5, at 4. Professor Glendon has noted that
. ans could have it all-ever-enlarging spheres
[f]or a time, it seemed as.th~u~h Amenc
freedom from want sustained by
of liberty and equality, mdlVldual freedom,. PIUchseck But
the convictions that
. th h ld human appelltes m
.
. ..
habits and belIefs at e
.
d d The henneneutics of suspicion have
undergird those habits have senously er~ ~ . academy to the kitchen table and the
trickled down from the coffee-houses an Ie
playground.
ld.
.
. .
d its threat
social fabric
maniS
etog our
BACKWARD
AND has
UPWARD:
. .
I 1"1" I and legal debates. ee, ..,
fested itself m mtellecrna, pOllca,
.
ks ed 1995) [hereinafter BACKWARD AND
THE NEW CONSERVATIVE WRITING (DaVId BrOOM F~DMAN THE REl'UBt.1C OF CHOICE:
UPWARD]; ETZIONI, supra note 7; LAWRE;::RAL;SM AND ITS CR1TlCS (Michael Sandel ed.,
LAW,
CULTURE
1984);AUTHORITY,
SEEDBEDS OFAND
VIRTUE,
supra(1990)5'
note , CHARLES TAYLOR, THE ETHICS OF AUTHENTICITY
9 The concern about the present SItuatIon an
(1991).
. . Educating for Citizenship,
62 U.
See Suzanna Sherry, Responsible Republ"lcanzsm.
.uris rudence
of
CHI. L. REv. 131, 145 (199~) (noting that "[d~spitetllh:e :;::t~u~f~f~~d. p Individual
individual rights, the Amen~ Obs~s~on ~1. ~~e ~d often inappropriately to shield citirights are now a shibboleth.. mv?ked ~ scr::their own folly, and from life's inevitable
zens from every real and unagmed shg.ht, ~Hi h-To Sneakers, N.Y. TIMES, Sept. 27,
hardships")' Richard A. Shweder, Punta", I
g. .'P K" I'n other words we should
' .
. th
'tud that "whatever IS, 15 o. . ,
1993, at All (dlScussmg e atlI e
du ss and beauty are in ti,e eyes of the benot make moral judgments because truth, goo e o~ THE AMERICAN MIND 19-43 (1987);
holder); see also ALLEN BLOOM, THE CLOSING
TAYLOR, supra note 9, at 13-15.
10
11
DMAN supra note 9, at I-50; MARY
'N~I~FPOL~ICALDISCOURSE-±--l.7,
47-108
38' F
See, e.g., ETZIONI, supra note 7, at 1-
ANN GLENDON, RiGHTS TALK: THE IMPOVERIS~~E at 1-7' SEEDBEDS OF VIRTUE, supra note
(1991); LmERAt.1SM AND ITS CRmcs, supra no e,
,
5. at 1-12: TAYLOR. SUDra note 9. at 1-12.
--
'
__
A~
.................... .L.~.1L.IL.d3.rr
JVU.flJ.V/1L
vo!. y
if not the cause, of this country's most serious social problems-crime, violence, drug abuse, troubled race relations, abused and neglected children troubled families, and the welfare culture.'2
'
~hese social issues translate into political issues. 13 Although we engage in
public debate about how best to resolve these conteinporary problems just as
we debated the issues of previous decades, today's posttnodern debates' are different from those in the past, in terms of both content and tone. Not only do
we talk a great deal more about rightS,14 that is, "my right trumps your right,"
~d abo~t divergent and oftentimes contradictory goals, but we also speak and
discuss m ways that are rather frequently disrespectful and dismissive of the
opposition. With the proliferation of groups with differing world views and
outlooks and their desire to have their voices control, public discourse has become downright ugly.!' 'More is at stake, however, than just manners and etiquette. Public debate exhibits name calling l6 and stereotyping on all sides.l7
The view that .the inc:ease~ assertion of individual rights is a negative development cuts
across party and IdeologIcal Imes. See Cass R. Sunstein, Rights and Their Critics, 70
NOTRE DAME L: REV. 727, 727 (1995); The Responsive Communitarian Platform: Rights
and Responslbllltzes, THE REsPONSIVE COMMUNITY, Winter 1991-1992, at4 [hereinafter The
Responsive Communitarian Platform].
12 See, e.g., GLENDON, supra note 11, at 14 (discussing problems created by societal
breakdown and society's failure to engage in meaningful dialogue on how best to solve the
problems).
13
Professor Glendon has described the current cultural challenges as follows: "Politi-
CaIl~, what is .at ~take is nothing less than the great question of whether a self-governing re-
publIc can eXIst ill an extended territory with a heterogeneous population." SEEDBEDS OF
VIRTUE, supra note 5, at 4; see also DINESH D'SOUZA, lLLmERAL EDUCATION: THE
POLITlCS OF RACE AND SEX ON CAMPUS xx (Vintage ed. 1991).
14
See supra note 10 and accompanying text.
15 ~other way of p~tting it ~s to say that there is more .. in your face" discussion today
than preVIously. q. JudIth Martm, The Oldest Virtue, in SEEDBEDS OF VIRTUE: SOURCES
OF COMPETENCE, CHARACTER, AND CITIZENSHIP IN AMERICAN SOCIETY 61-70 (Mary Ann
Glendon & DavId Blankenhorn eds., 1995) (discussing the tendency of many individuals today to insult others and use offeusive speech).
.16 David Brooks, for example, has written dUll "[e]verything in liberalism gets wrapped
up III P~ISSY etiquette (even eating an ice cream cone is now connected to helping the rain
forest). BACKWARD AND UPW~RD, supra note 9, at xviii. Similarly, while contemplating
an example of lIberal name-callIng, I once heard a local disc jockey explain that Senator
Jesse Helms was in favor of raising his state's speed limit because a higher limit would allow him to get to his white supremacist meetings in less time.
17
See NAT HENTOFF, FREE SPEECH FOR ME-Bur NOT FOR THEE: How THE AMERICAN
r,
,
I
1999
DRESS CODES AND FREEDOM OF EXPRESSION
341
This stereotyping censors one gro1;lp or another by suggesting that the group
has bad ideas or that the group is dangerous, IB thus preventing the exchange of
ideas and meaningful discussion. 19 For example, the Right regularly characterizes and dismisses the Left as being "P.C." when the Left addresses issues
that it fmds important. 20 At the same time, the Left regnlarly characterizes and
dismisses the Right as being puritanical when the Right proposes solutions to
problems it has identified. 2I While struggling to find stability, both sides be-
LEFT AND RIGHT RELENTLESSLY CENSOR EACH OTHER 2-3 (1992) (discussing how people
across the political spectrum censor each other by stereotype or ~ricature, that is, once an
individual's group identity is known, we tend to shut that person off because we presume to
know in advance what he or she will say). In this regard, Professor Laycock has observed
that "[o]ne of the less attractive patterns in human behavior is our tendency to stereotype
those with whom we disagree, those whose interests conflict with our own, or those who are
simply different from ourselves." Douglas Laycock, Vicious Stereotypes.in Polite Society, 8
CONST. COMMENTARY 395, 395 (1991). Professor Laycock also has stated that "as far as I
can tell, no class and no political faction dominates the market in intolerance." [d. ,at 400
(footnote omitted); see also HENTOFF, supra, at 17 (observing that "censorship-throughout
this sweet land of liberty-remains the strongest drive in human. nature, with sex a weak:
second. In that respect, men and women. white and of color, liberals and Jesse Helms, az:e
brothers md sisters under the skin"). The labels used are not used with any degree of preCIsion-sometimes they target a specific group, sometimes an outlook or attitude. See Laycock, supra, at 397. When thinking about labels currently in use, many come to ~ind, suc~
as, welfare mothers, angry white males, limousine liberals, liberals, fundamentalIsts, feminists, and gun..:toting NRA members, to name a few.
18
See HENTOFF, supra nc;>te 17, at 5. According to Professor Laycock,
[Stereotypes] distort out understanding of the real differences among us, and J,"educe
the chances for resolving those differences even in part. These stereotypes corrode
the bonds of mutual concern and respect that hold a pluralistic society together.
These bonds are stretched enough by our honest disagreement and simple demands
for change.
Laycock, supra note 17, at 402.
19 See HENTOFF. supra note 17, at 5 (asserting that throughout history, various groups
have been labeled as unWOrtlly to be heard); Laycock, supra note 17, at 395 (stating that
"stereotypes create and reinforce prejudice, and they distort our politics. our policy debates,
and our constitutional debates").
20 See, e.g., D'SOUZA, supra note 13 (minimizing claims of sexism, racism, and .cl~ss­
bias in universities by arguing that such claims are "P.C. "). For an anthology of OpInIOns
on "political correctness," see DEBATING P.C.: THE CONTROVERSY OVER POLITICAL
CORRECTNESS ON COLLEGE CAMPUSES (Paul Berman ed., 1992).
21 The Left tends to assert that the Right propo).lnds brittle moral theories that serve
r
tional theorists, child psychologists, as well as legal scholars, are vexed by a
variety of issues and problems. Some of the problems concern the physical
sening of elementary and secondary schools. For example, violence on school
property has created crises in some school districts; deteriorating buildings and
equipment are problems in other districts. 24 Other problems relate to the peda-
come more intolerant and, thus, silence their opposition. In the meantime, political and social issues remain unresolved, with no prospect for resolution on
the horizon. In effect, the form and tone of our debate renders our societal
problems intractable, if not unsolvable.
Thus, our polity faces enormous challenges as we approach the new millennium. We must deal with both the relativism and the polarization wrought by
postmodernism. Moreover, we must recognize and begin to address the impoverished nature of our political dialogue. 22
than good").
That same awareness must inform us as we grapple with the issues plaguing
the public schools, those microcosms of society that are not inunune from the
forces of postmodernism. 23 Parents, teachers, school board members, educa-
One educator's view from the mid-1940s reflects the pre-postnlodern view that there
exists a si~gular reality for all, or at least that all individuals seek the "American way of
life" but at the same time, reveals that some of the problems faced today and labeled postmodem ~ere not unknown in earlier times. See The Young Citizen's League of America,
Y.C.L. Manual 3 (n.d.). Specifically, this educator stated:
only to shore up the power of those who already have it.
22 See GLENDON, supr~ note 11, at x (observing the phenomenon of "the impoverishment of our political discourse").
23 See GERALD GRANT, THE WORLD WE CREATED AT HAMILTON HIGH 1 (1988) (noting
that a "profoWld confusion" surrounds American schools because" [a] corrosive individualism eats away at the heart of the enterprise." educators are unclear about the grounds of
their moral authority, parents tend to form special interest groups, and students have become
We all know that juvenile delinquency has been increasing lately hy leaps and
bounds. We know, too, that we elders are to blame for it, not the children..We fail
to train them properly, then punish them when they go wrong. The modem American home is slipping. Two million American children get practically no schoolmg.
Fifty milliou never see the inside of a church.
)
Every year the United States has more divorces than all the rest of the civilized
world combined. In Canada one marriage in 131 ends in divorce; in the United
States one out of four! Broken homes do not make good citizens out of their children.
skillful consumers and advocates); THREE THOUSAND YEARS OF EDUCATIONAL WISDOM:
SELECTIONS FROM GREAT DOCUMENTS v (Rohert Ulich ed., 2d ed. 3d prtg. 1982) (noting
that education and civilization are not in a state of health because of "the loss of a feeling for
cultural depth and continuity"). In other words, as students, parents, and teachers interact,
they are confronted with multiple referential frames within the educational environment. See
notes 4-6 and accompanying text. Time magazine has described the postmodern forces in
the schools as follows: "For most of American history, the educational system has reflected
and reinforced bedrock beliefs of the larger society. Now a troubling number of teachers at
all levels regard the bulk of American history and heritage as racist, sexist, and classist .... " William A. Henry ill, Upside Down in the Groves of Academe, TIME, Apr. 1,
1991, at 66.
We must not allow this situation to go on getting worse every year. Normal children
want to be good citizens and have a right to a fair chance at it. Somebody must see
that they get it if the boasted American way of life is to he kept on a high plane.
We teachers are probably not to blame for these unfortunate conditions, but is our
business to do all we can to prepare our school children to meet them. The parents
expect this of us, and rightly so. It is our duty to the puhlic.
Professor Sizer, however, has a different view:
Much has recently been made of an apparent splintering of American society, of a
lack of a national consensus. This may be true in American politics, where special
interest government has become more visible, if not more ubiquitous, than earlier.
but it certainly is not true in American high schools. Tacit agreement exists as to the
purpose of high school and how it is to he accomplished.
THEODORE R. SIZER, HORACE'S COMPROMISE: THE DILEMMA OF THE AMERICAN HIGH
SCHOOL 6 (1992); cf. SARA LAWRENCE LIGHTFOOT, THE GOOD HIGH SCHOOL: PORTRAITS OF
CHARACTER AND CULTURE 315-16 (1983) (noting thaI "[p]erceptions of today's high
schools ... are plagued hy romanticized rememhrances of 'the old days' and anxiety about
the menacing stage of adolescence" and concluding that "[h]oth of these responses tend to
distort society's view of high schools and support the general tendency to view them as other
Id.
24 The concept of place figures centrally in an individual's life. See KATHLEEN NORRIS,
DAKOTA: A SPIRITUAL GEOGRAPHY 107-23, 129 (1993). The emergence of violence in the
school building and on the playground is a serious problem for some communities. See
Daniel F. Gourash, Chairperson's Column: Division Undertakes Teen Violence Problem,
BARRISTER MAGAZINE, Spring 1994, at 2 (discussing teen violeuce in the schools and the
American Bar Association-Young ~wyer's Division Teen Violence Project). When school
children lose their sense of security at school, not only do they lose interest in school, but
they also lose hope in the future. See iii. Other conununities have huildings and physical
plants that are in various states of disrepair. See, e.g., Ahbott v. Burke, 575 A.2d 359, 397
(N.J. 1990) (descrihing the poor and unsafe conditious of buildings and facilities in various
gogical dilemma over what should be taught. 25 Still others focus on the success
or lack of success of the educational enterprise. 26 The complex problems of
28
authority''' and finance render more difficult the satisfactory resolution of
many other problems. In large part, the problems of schools are symptomatic
of the underlying conflict" and moral confusion experienced in our larger society.'o
.
Student appearance is a matter that an increasing number of school districts
New Jersey school districts). Both violence and rundown bnildings affect an important place
in students' lives-their school.
25 There has been and always will be disagreement about the efforts Of schdol officials
defme the ideas expressed and received by students in their charge." See Rosemary C.
Salomone, Free Speech and School Governance in the Wake of Hazelwood, 26 GA. L. REv.
253, 258 (1992). There is no consensus on whether children's moral education shonld be
accomplished by a values clarification approach. by which children ar~ taught to reason
about a variety of morally equal values, or by a values inculcation approach, by which children are taught seleetedvalues that have been deemed to be morally superior to .other values.
See generally Susan H. Bitensky, A Contemporary Proposal for Reconciling the Free Speech
Clause with Curricular Values Inculcation in the Public Schools, 70 NOTRE DAME L. REv.
769 (1995) (discussing morals education through elementary and secondary level curricUla).
This foundatioual disagreement over what should be taught has revealed itself, most recently, in debates about sex education, AIDS education, school prayer., and abortion. See
Salomone, supra, at 258; cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
641 (1943) (observing that "[p]robably no deeper division of our people could proceed from
any provocation than from finding it necessary to choose what doctrine and whose program
public education officials shall compel youth to unite in embracing"). Postnlodemism has
exacerbated this tensipn, making it more pronounced.
.
"to
26 See generally THOMAS TOCH, IN THE NAME OF EXCELLENCE:
THE STRUGGLE TO
REFORM THE NATION'S SCHOOLS, WHY IT'S FAlLING, AND WHAT SHOULD BE DONE (1991)
(discussing educatioual reform and why it is failing).
21 See AMY GUTMANN, DEMOCRATIC EDUCATION 3 (1987) (discussing "oue of the primary moral problems of politics: Who should share the authority to influeuce the way
democratic citizens are educated?"); see also Susan W. Eyestone, Is Society Shortchanging
Schools? Kids Must Be Taught the Common Democratic Values, MPLS. STAR TRIBUNE,
Sept. 29, 1993, at 17A (asserting that the most pressing issues facing educators today reduce
themselves to questions of structure and governance, specifically, who makes the decisions
and how are the decisions made).
28 See San Antonio Sch. Dist. v. Rodrique~, 411 U.S. 1 (1973). See generally Sherry,
supra uote 10, at 194-206 (discussing the problem of school fmancing).
29
30
have deemed to be a problem." In the late 1960's and early 1970's, both federal and state courts considered a spate of cases in which students challenged
school regulations of their appearance. 32 Most of the c~nenges were by male
students who wished to wear their hair longer than penmtted by school regulations." In the absence of any precedent from the United States Supreme Court
regarding whether elementary and secondary public school students have ~y
constitutionally protected freedom to govern their personal appear~ce,. that IS,
what 1hey wear and 1he length and style of 1heir hair, 1he federal CIrCUlt courts
could not agree. 34 In 1he afterma1h of 1he Supreme Court's swe~piJ.tg language
in Bethel School District v. Fraser' and Hazelwood School Dzstnct v. Kuhlmeier,36 language that many school administrators have interpreted to au1horize
31 See James Podgers, What to Wear:
Courts Agree on Principle of School Dress
Codes, Disagree on Their Reach, A.B.A. 1. 60 (Nov. 1995).
32 See Breese v. Smith, 501 P.2d 159, 165 un. 17-18 (Alaska 1972) (listing many cases
that arose in the state and federal courts brought by students who challenged school regulations ou appearance); Mercer v. North Forest Indep. Sch. Dist., 538 S.W.2d 201, 202-03
(Tex. App. 1976, writ rerd n.r.e.) (listing many cases that arose m the state and federal
. courts brought by students who challeuged school regulations on appearance). See generally
MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON -r,"E THEORY OF
THE FIRST AMENDMENT § 3.06[E][2], at 3-65 to 3-72 (Student ed. 1984) (~Iscussmg cases
involving-challenges to regulations seeking to control student dress or gro~Dllilg~; LAUREN~E
H. TRIBE, CONSTtTUTIONAL LAW § 15-15, at 1384-89 (2d ed. 1988) (dlScussmg cases mvolving challenges to regulations seeking to control student ?ress or groommg); Re~ent
Cases, 84 HARV. L. REv. 1702 (1971) (discussing cases iuvolvmg challeuges to re~lat,ons
seeking to coutrol student dress or grooming); Comment, Public Schools,. Long Halr, and
the Constitution, 55 IOWA L. REv. 707 (1970) (discussiug cases mvolvmg challenges to
regulations seeking to control student dress or grooming).
33 See, e.g., Massie v. Henry, 455 F.2d 779 (4th Cir. 1972); Bis~op v. Colaw, 450
F.2d 1069 (8th Cir. 1971); Richards v. Thurstou, 424 F.2d 1281 (1st CIr. 1970); Breen v.
Kahl, 419 F.2d 1034 (7th Cir. 1969); Ferrell v. Dallas Indep. Sch. O'sl., 392 F.2d 697 (5th
Cir.), cert. denied, 393 U.S. 856 (1968).
34 See Breese, 501 P.2d at 164-65 (noting the split amoug federal circuit courts of appeal as to Whether students have a constitutionally protected freedo.m to ch~ose theIr personal appearance). Of the federal courts that invalidated school haIr regulations for. boys,
the courts did not agree on the source of the students' constitutional freedom; th~y relled on
a variety of constitutional theories to invalidate the regulations, including the Fust Amendment, the Ninth Ameudmeut, the Equal Protectiou Clause of the Fourteenth Amendment, the
Due Process Clause of the Fourteenth Amendment, and the constitutional nght to pnvacy.
See id. at 165-66.
See Salomone, supra note 25, at 258.
3S
478 U.S. 675 (1986).
36
484 U.S. 260 (1988).
See supra notes 3-11 and accompanying text.
VUL '::J
54/
greater control over students and the school environment than in the past,37
schools have resurrected their earlier concerns about student dress and grooming and have renewed their efforts to place restrictions on student appearance
by prohibiting earrings,'S regulating hair length,39 and prohibiting saggy
pants.'o
The new dress codes'! are, to some degree, a reaction to postmodernism's
emphasis on individual rights, tolerance of all tastes, and decline of authority.'2
As community elders and school officials come to share the perception that
young people have failed to learn manners and acquire good taste, and as they
watch family life crumble and young people increasingly adopt the attitude that
whatever is, is ok, they have responded by exerting greater control over students while students are in school. That control has come, in part, in the form
of dress codes. 43 Thus, while, on the one hand, the larger postmodem society
is marked by relativism and a collective attitude that individuals possess a
panoply of absolute rights that they seemingly can assert without regard to others," public schools, on the other hand, are characterized by an outlook that
students have gone too far even in their dress and appearance and need to be
controlled. 45
This article addresses the new dress and grooming codes, and specifically
focuses on the First Amendment as it relates to earring prohibitions and hair
length regulations in public elementary and secondary schools. There are three
underlying premises. The initial premise of this article is that public schools
are one of our great hopes for the future, for it is through their operation that
--
--.
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.J\./U.l.\.1VnJ..J
37 See Salomone, supra note 25, at 253-54 (noting tl,at for some school officials Hazelwood is "a long-awaited signal" that allows schools "to pull in the reins on a sw'dentcentered s~stem that had seemingly roo riot"); cf. Robert R. Verchick, Engaging the Spectrum: CIVIC Vzrtue and the Protection of Student Voice in School-Sponsored Forums, 24 J.
MARsHALL L. REv. 339, 340 (1991) (noting that Hazelwood reflects a "relOrn to discipline,
respect. and singular values in the classroom").
~8 See, e.g., Oleson v. Board of Educ., 676 F. Supp. 820, 821-22 (N.D. ill. 1987) (involvmg a challenge to a prohibition on male students wearing earrings); Barber v. Colorado
Indep. Sch. Dist., 901 S.W.2d 447,447-48 (Tex. 1995) (involving a challenge to a prohibitIOn on male slOdents wearing earrings); Hines v. Caston Sch. Corp., 651 N.E.2d 330, 332
(Ind. Ct. App. 1995) (involving a challenge to a prohibition on male slOdents wearing earrings).
42 S~e supra notes 10-11 and accompanying text; see also Podgers, supra note 31, at 60
(noting that students resist school dress codes because they are experimenting with self-
" See, e.g., Barber, 901 S.W.2d at 447-48 (involving a challenge to a restriction on
hair length for male slOdents).
identity and because they are "emboldened by society's emphasis on individnaJ rights"); Mi:
chael Winerip, Required Volunteerism: School Programs Tested, N.Y. TIMES, Sept. 23,
1993, at AI6 (reporting that a high school senior in Bethlehem, Pennsylvania objected to her
.
40 See, e.g., Bivens v. Albuqnerque Pub. Sch., 899 F. Supp. 556, 558 (D.N.M. 1995)
(mvolvmg a challenge to a prohibition on wearing saggy pants); see also Mike W. Thomas,
Students Suspended for Saggy Britches, LUBBOCK AVALANCHE-I., Apr. 13, 1996, at 12A
(reporting that more than fifty junior high school slOdents were suspended, at one time, for
school's mandatory community service program because the program is "unbelievably un-
wearmg "overly baggy pants" because those pants are lewd and distracting to other students).
a
s'.
o~e commumtIes
h
. ave moved beyond dress codes and are experimenting with
school uniforms. See, e.g., The November Report: Hair-Raising Policies, N.Y. TIMES,
!'lov.5, 1989, 4A, at 60 (reporting that administrators of a 1,IDO-slOdent elementary school
ill
constilOtionaJ," thereby suggesting that she had certain rights).
43 Of course, hair length regulations, in contrast to earring prohibitions, affect students
while they are in school as well as when they are not in school, thereby controlling in-school
and out-of-school appearance. See Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir.
1970); Breen v. Kah1, 419 F.2d 1034, 1037-38 (7th Cir. 1969); Neuhaus v. Federico, 505
P.2d 939, 944 (Or. Ct. App. 1973); cf. Kelley v. Johnson, 425 U.S. 238, 255 n.7 (1976)
(Marshall, 1., dissenting) (noting that a police department hair length regulation "effectively
controls both on-duty and off-duty appearance").
B~ldgeport, ConnectIcut mandated uniforms for all students to help the students ignore
clothmg trends and to focus on their slOdies); Mike W. Thomas, Dressedfor Success: Bean
[Elementary Schoolj Principal Points to Advantages of School Uniforms, LUBBOCK
AVALANCHE-J., Mar. 7, 1996, at IA (reporting that school administrators had institnted a
voluntary uniform program in an elementary school in Lubbock, Texas to help students develop self-esteem). Even President Clinton has promoted uniforms, touting the idea in his
1996 State of the Union address as a way to deal with gang violence in pUblic schools. See
Sandy Louey, McKinney Board to Vote on School Uniforms, DALLAS MORNING TIMES, Sept.
II, 1998. at lK. For a discussion on the constitutionality of school uniforms, see Alison M.
Barbarosh, Comment, Undressing the First Amendment in Public Schools: Do Uniform
Dress Codes Violate Students' First Amendment Rights?, 28 LoY. L.A. L. REv. 1415
(1995).
... See GLENCON, supra note 11, at 1-75, 109-44.
45
It may be that society is hypercritical of public schools because society attempts to
solve societal problems by tinkering with children. As Professor Sizer has observed, "[W]e
pick particularly on the schools when we're unhappy with ourselves in general .... "
SIZER, supra note 23, at I; see also EDWARD C. BANFIELD, THE UNHEAVBNLY CITY
REVISITED 148-49 (1974) (stating that "[tlhe most widely recommended 'solution' to the
problems of the city is more and better schooling. There is almost nothing that someone
does not hope to achieve by this means"); Bitensky, supra note 25, at 770 (noting that the
"adult psyche cannot relinquish hope that moral quality will prevail, in spite of the historical
testaments, if only the children can be properly taught").
we recreate ourselves and our world. 46 How we treat children in school how
we foster learning, and how we help children grow up have a tremendo~s impact on their lives and, hence, on the condition of our existing and future
communities. 47
The second premise is that while the mission of public schools always has
been defined as simultaneously promoting the sometimes contradictory themes
of individual rights and community values,48 for the moment, the Supreme
Court has tipped the balance in favor of community values over individual
rights in response to the moral decline of the larger society. 49 Accordingly it
. f'
.
~
b
50
'
IS arr to say, ,or etter or worse, that school administrators and teachers have
more legal authority today than ever before to emphasize community values
and preservation over individual student liberty interests. 51 In other words, in
"
46 ~ee GRANT, supra note. 2~, at 1 (stating .that education expresses OUf deepest wish:
to contmue,. to go on, to perSISt m the face of tune") (footnote omitted); SIZER, supra note
23, at 1 (statmg that "[a] society that is concerned about tl,e strength and wisdom of its culture pays careful attention to its adolescents"); Martha Mioow, On Neutrality, Equality, &
Tolerance, CHANGE, Jan./Feb. 1990, at 17 (stating that "schools are central to the tasks of
democracy and are vehicles for success in America"); cf. The Responsive Communitarian
Platform, supra note 11, at 9 (describiog schools as the second lioe of defense after ftmtilies, for "by default, schools now playa major role, for better or worse, in char;cter formation and moral education").
47
See Minow, supra note 46, at 17.
48 See Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
853, 861-67 (1982) (plurality opinion) (discussiog the tension between libertarian and communitarian values io the school curriculmn); Tioker v. Des Moioes Indep. Community Sch.
DlSt., 393 U.S. 503, 506-08 (1969) (discussiog the tension between libertarian and communitarian values in the school curriculum).
. 49 See, e.g.: Vernonia Sch. Dis!. 47J v. Acton, 515 U.S. 646 (1995); Hazelwood Sch.
DISt. v. Kuhlmeler, 484 U.S. 260 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986);
New Jersey v. T.L.O., 469 U.S. 325 (1985).
50 For discussions on the negative impact of school authority on individual students and
their families, see STEPHEN ARONS, COMPELLING BELIEF: THE CULTURE OF AMERICAN
SCHOOLING (1983); JONATHAN KOZOL, THE NIGHT IS DARK AND I AM FAR FROM HOME (rev.
ed. 1990).
.Se~,
C;.
Fischer, From Tioker to TLO: Are Civil Rights for Students
& Enuc. 409, 409-15 (Fall 1993) (discussiog the cOUrts'
shIft m Its IdeologIcal focus of education from students to schools); Salomone, supra note
25, at 257-58 (discussing the courts', shift in its ideological focus of education from students
to schools); Rosem~ry C. Salomone, From Widmar to Mergens: The Winding Road of First
Amendm.ent Analys,s, 18 HASTINGS CONST. L.Q. 295, 316-17 (1991) (discussiog the courts'
shift m IdeologIcal focus of education from students to schools); Verchick, supra note 37, at
"
51
!h0mas
FlllllJ:,~g m School., 22 J.L.
inculcating in students "the habits and manners of civility"52 and "the essential
lessons of civil, mature conduct,"53 school boards may be inclined to conclude,
based on the Supreme Court's current educational ideology, that studeut hair
length and manner of dress in the classroom are matters well within the
schools' concern and authority to regulate. 54
The third underlying premise is not so much an assumption as it is an observation related to our postmodern world. As we debate the policy behind and
the constitutiouality of dress and grooming codes and their reae))., we must be
mindful of the tone of our debate, and seek to avoid the name calling and
stereotyping that are characteristic of public discourse in general. 55 Public
school issues are frequently controversial because of their emotion-laden context. 56 With increasing frequency, debate on how yonng people should be educated unfortunately has become mired in meaningless slogans and buzz words,
much like pUblic debate in general. 57 The challenge is to rise above the
342-55 (discussiog a shift io ideological orientation from the student "autonomy" model to
the school "authority" model). Compare Tinker, 393 U.S. at 506-07 (while recognizing the
"comprehensive authority of States and school officials ... to .pr~scribe. and c"~ntr?l conduct
io the schools," emphasiziog the hnportance of students' constitutlOnal nghts m lIght of the
special characteristics of the school enviromnent"), with Fraser, 478 U.S. at 681 (emphasizing tmt ,;'public education must prepare pupils for citizenship io the Republic . . .. It
must inculcate the habits'and manners of civility as values in themselves condUCIve, to happIness and as indispensable to the practice of self-government in the community and the nation''') (citation omitted). For a discussion of educational go~s and philosophy. see Lawrence Kohlberg & Rochelle Mayer, Deveiopment as the Aim of Education, 42 HARV. EDUC.
REv. 449 (1972).
52
Fraser, 478 U~S. at 681.
53
[d. at 683.
54 The federal circuits are split on the issue of whether students have any constitutionally protected freedom to govern their personal ,appearance. See supra text accompanyiog
note 34.
55
See supra text accompanying notes 14-21.
" See SIZER, supra note 23, at I ("Because of their ubiquity and their hnportance for
youth, high schools oftentimes are focuses of controversy .... ").
57 AIJ. example of the type of meaningless dialogue to which I refer occurred in Texas
in June of 1994. Then-Democratic Governor Ann Richards addressed an assembly at Texas
Girls State, an annual event at which girls from across the state meet in Austin to le~ how
the state government functions. In her speech to the young women, Governor Richards
urged the young women to avoid conforming to society's ste~~otypes and to become selfreliant and confident io their abilities. Governor Richards specIf,cally stated:
Well, my m~ss~ge to you today, is ~at you should throw the "what-other-people_
think yard-stick out and stop measurmg yourself by someone else's pattern.
'The only standard that truly matters is the one you set for yourself.
The important question you have to ask yourself is not "What do I want to be when I
grow up?"
It is "Who am I?" and "What do I want to do with my life?"
And there. is a ~rernendous difference between what you do to support yourself and
how you hve With yourself.
.
You can cbange jobs.
stereotypes and slogans and to engage in genuine discussion.
This article examines hair length regulations and earring prohibitions, the
reasons why public schools might adopt them, and why, in response, students
might resist them. The examination is made in the context of the Supreme
Court's community values educational ideology and the realities of the postmodem world. Part II outlines the historical tension between teaching and emphasizing individual rights and freedoms to foster individual student development and growth and inculcating values preferred by the community majority.
Part II also articulates the Supreme Court's current educational ideology, values inculcation, socialization, and community preservation in detail. Understood as a reaction to the general societal decline of pOS1modernism, the
Court's ideology, as it is reflected in the cases, constitutes a grant of permission, even an invitation, arguably, to public schools to exert more control over
students and stodent choices. Part II concludes that the public elementary,
junior high (or middle), and senior high schools that elect to exercise their full
authority have tremendous leeway in their efforts to cultivate good taste, inculcate good manners, aud generally combat destructive pOS1modem forces.
Part ill argues, however, that school districts must reflect carefully before
You can even change careers.
But you are the only you that you get.
And you cannot count .on Prince Charming to make you feel better about yourself
~d take care of you-like some fun house mirror that reflects you at twice your real
sIZe.
STATESMAN, June 22, 1994, at AI4 (quoting Aun Richards, Governor, State of Texas).
Governor Richards closed her remarks by stating that although life is hard, people will help
you, "[a]nd people will love you, and you will love them mOl~e than you can even imagine
now," [d.
A fair characterization of Governor Richard's speech would be that she urged the young
women to develop their potentials because of the realities of divorce and the feminization of
poverty. Perhaps her references to "Prince Cbaruting," his beer gut, and his wandering eye
were a bit blunt and, indeed, melodramatic. Nonetheless, Governor Richards raised real
Because Prince Charming may be driving a Honda and telling you that you have no
equal, but that won't do mucb good when you've got kids and a mortgage and he has
a beer gut and a wandering eye.
In the real world, half of all marriages end in divorce, and over 70 percent of divorced women fmd themselves slipping toward poverty.
concerns, concerns with which all young peeple, both male and female, must be acquainted.
It is easy to imagine the type of dialogue that her speech should have generated.
Then-gubernatorial candidate George W. Bush and the Texas Republican Party, however, responded differently than one mIght have hoped. First, Mr. Bush stated, "Many
problems in society spring from the decline of the family . . .. Our leaders should be
building up the family, not tearing it down." [d. (quoting George W. Bush). Susan Weddington, Vice Chair of the Texas Republican Party, added that, "Aun Richards continually
paints a bleak picture of the future for our young women . . .. She has put her foot in her
In the real world, less than 20 percent of our families fit the stereotype where Dad
goes off to earn the paycheck and Mom stays home and takes care of the kids.
mouth with a slash and burn attack of Texas men and on the institution of marriage that
doesn't reflect the reality of most Texas farnI1ies." [d. (quoting Susan Weddington). Lee
Reilly has observed that, in this situation, the Texas conservatives "could not imagine a
world in which a woman was self-reliant and part of a family: the two goals, the two jobs,
The vast majority of American families are headed by parents who both work or
were in direct opposition." LEE REILLY, WOMEN LIVING SINGLE: THIRTY WOMEN SHARE
THEIR STORIES OF NAVIGATING THROUGH A MARRIED WORLD 128 (1996). Instead of ar-
mothers trying to rear their kids prettY much by themselves.
David Elliot, Richard's Speech Sets Off Debate on Values with GOP, AUSTIN AM.
ticulating their substantive concerns about the roles of men and women and initiating a dialogue, however, the conservatives chose to attack Governor Richards.
making their dress and grooming codes more restrictive by adopting hair length
regulations and earring prohibitions. While public schools are permitted to sociali~e stude~ts in accordance with the preferences of the majority of the commUllity, public schools must avoid socializing in ways that infringe the First
Amendment rights of students. Part ill asserts that an individual student's
choice on dress and appearance is expressive in nature; indeed, it is symbolic
expression or symbolic conduct, having much in co=on with individuals who
mar~h. ~ parades or dance in the nude. Hair length regulations and earring
prohibluons, therefore, affect student expression because they may require students to dress in ways that oppose their personal choices.
Part III then addresses how courts should review First Amendment challenges to hair length regulations and earring prohibitions. In light of the absence of specific Supreme Court guidance on how such regulations should be
scrutinized,58 Part III proposes a two-tiered analytic model. 59 When evidence
suggests that the school's regulation is desigued to inculcate "good taste" in
personal appearance, and, therefore, is directed at student expression, then the
substantial disruption standard from Tinker v. Des Moines Independent Com"
munity School Distrir:t" should apply. Conversely, when evidence suggests
that the school's regulation is not directed at the expressive component of personal appearance, but instead is aimed at students' behavior or acts for reasons
unrelated to their expressive component, then the regulation is permissible ouly
if it can withstand scrutiny under the four-part test set forth in United States v.
o 'Brien. 61
S8
See supra text accompanying note 34.
" See generall:j KENT GREENAWALT, FIGHTING. WORDs: INDIVIDUALS, COMMUNITIES,
AND LmERTIES OF SPEECH 21-25 (1995) (discussing Tinker and O'Brien in the context of
symbolic speech); NIMMER, supra note 32, § 3.06[E], at 3-65 to 3-73 (discussing O'Brien in
the context of symbolic speech): Comment, supra note 32, at 714-16 (discussing Tinker and
O'Brien in the coutext of symbolic speech).
60
393 U.S. 503 (1969).
61
391 U.S. 367 (1968).
II. THE SUPREME COURT'S EDUCATIONAL IDEOLOGY IN THE
POSTMODERN WORLD: THE CENTRALITY OF COMMUNITY
PRESERVATION AND VALUES INCULCATION
A. THE TENSION IN GENERAL EDUCATIONAL IDEOLOGY: STUDENT
AUTONOMY V. VALUES INCULCATION
Individuals tend to think differently about what makes a good school and
what constitutes a good education. Aristotle noted long ago that "[i]n modem
times there are opposing views about the practice of education. "62 Aristotle
added that "[t]here is no general agreement about what the young should leam
either in relation to virtue or in relation to the best in life; nor is it clear
whether their education ought to be directed more toward the intellect than toward the character of the soul.,,63 One. explanation of why people disagree
about education is that everyone has had different educational experiences; because people learn about education from personal experience, each person has
differing views about what is educationally good or bad. 64
In spite of our differing views, the mission of public schools has been defined in. uniform ways. Typically, the mission is articulated as a list of wideranging goals, reflecting the many and varied opinions held by individuals
about what constitutes the ideal education. One formulation is that public
schools have four broad areas of concern: "(I) academic, embracing all intellectual skills and domains of knowledge; (2) vocational, geared to developing
readiness for productive work and economic responsibility; (3) social and civic,
related to preparing for socialization into a complex society; and (4) personal,
emphasizing the development of individual responsibility, talent, and free expression."65 Jndge Recht's formulation in Pauley v. Kelly" is similar; a thor-
62
ARISTOTLE, THE POLITICS 300 (LA. Sinclair trans., 1974).
63
ld.
64 See GUTMANN, supra note 27, at xi. But see SIZER. supra note 23. at 76-77 (observing that "[mlost Americans have an uncomplicated vision of what secondary education
should be. Their conception of high school is remarkably uniform across the country, a
striking.fact, given the size and diversity of d,e United States and the politically decentralized character of the schools").
6S
JOHN G. GoODLAD. A PLACE CALLED SCHOOL:
(1984).
66
255 S.E.2d 859 (W. Va. 1979).
PROSPECTS FOR THE FUTURE 37
Y UJ..
;7
ough aud efficieut system of schools fosters the growth of iudividual students iu
the followiug eight areas:
(1) literacy; (2) the ability to add, subtract, multiply and divide numbers;
(3) knOWledge of government to the extent the child will be equipped as
a citizen to make informed choices among persons aud issues that affect
his governauce; (4) self-knowledge aud knOWledge of his or her total environment to allow the child to iuteIIigentiy choose life work to know his
or her options; (5) work-traiuiug aud advauced academic traiuiug as the
child may iuteIIigentiy choose; (6) recreational pursuits; (7) iuterests iu
all creative arts, such as music, theater, literature, and the visual arts;
(8) social ethics, both behavioral aud abstract, to facilitate compatibility
with others iu this society. 67
1999
DRESS CODES AND FREEDOM OF EXPRESSiON
355
how should schools accomplish these tasks?
The second shared feature of mission statements is that the stateme.nts contaiu seemiugly contradictory educational purposes or, at least, competmg ed~­
cational purposes. How are schools to socialize. students to ensure "compaubility" with others iu our complex world and sunultaneou~ly foster personal
growth, talent, and free expression?74 In sh~rt, inherent m the p~oses of
ducation is a fundamental clash of values or dichotomy between deliberate soconstruction of students by the transmission of tlie majority's
aud political values, and liberation of students by the teac~ of life .posslbilities aud iudividual iuterests protected by the constitution. The reality of the
values clash ensures that educators will be called upon to strike a bal~ce between the contradictory or competing goals. In addition, it ensures the unpossibility of values neutrality iu public schools. 76
~ial
s~cial, m~r~,
Most, if not all, mission statements contaiu the same broad goals. 68 Indeed,
the common school movement iu this country"' had as its goals "moral traiuiug, discipliue, patriotism, mutual understanding, formal equality, aud cultural
assimilation. "70
Traditional statements of educational purposes share several features. First,
they are at once comprehensive iu scope aud question-beggiug. While the
goals require schools to affect alI dimensions of students' lives, their minds,
bodies, aud spirits, iu siguificaut ways,71 they are rather uuiIIumiuating iu
terms of specific content aud criteria. 72 What does it meau, for example, "to
embrace alI iutellectual skills aud domaius of knowledge," to teach "social
ethics, both behavioral aud abstract," or to cultivate iuterests iu "alI creative
acts?"" Even asstuning that defmition is possible, auother questiou emerges:
73
Pauley v. Kelly, 255 S.E.2d 859, 877 ('N. Va. 1979); see ,also supra note 67 aod
accompanying text.
74
Professor Gutmann has described the dilemma by stating :m~t «[e]d~cation .may aim
to perfect humao nature by developing its potentialities, to deflect It mto servmg SOCIally use,:
fill purposes, or to defeat it by repressmg those mchnations that are .socially destructive.
GUTMANN, supra note 27, at 22 (emphasis in original) (footnote omitted); see also Betsy
in Educating Youth for Citizenship: The ConflIct Between AuthoYlty and lndlvldual
Ri;ht; in the Public School, 95 YALE L.J. 1647, 1649 (1986) (noting that "[s]ocializatiou. to
~
values through a uniform educational experience necessarily conflIcts WIth freedom of chOIce
67
ld. at 877.
aod the diversity of a pluralistic society").
The existence of a pedagogical values clash or dichotomy is not universally agreed
For some "counterposing the inculcative and noninculcative approaches as mutually
upon.
,
. II d .
tal d' hot
exclusive
and irreconcilable
options creates a false and educatlOna
y etnmen.
. IC. omy." Bitensky, supra note 25, at 772 (footnote omitted); cf. Stanley Ingber, SOCIalIzation,
75
" See, e.g., SIZER, supra note 23, at 77 (describing oue CalifornIa high school's goals,
which include fundamental scholastic achievement, career and economic competence, citizenship and civil responsibility, "competence in human and social relations," moral and
ethical values, self-realization, mental and physical health, aesthetic awareness, and cultural
diversity).
" See generally LAWRENCE A. CREMIN, THE AMERICAN COMMON SCHOOL (1951) (discussing the American common school movement).
70
Salomone, supra note 25, at 255 (footnote omitted).
71 See SIZER, supra note 23, at 77 (noting that "[t]he high school is to touch most aspects of an adolescent's existence-mind, body, morals, values, career").
72
See Uf. at 78.
indoctrination, or the "Pall of onhodoxy": Value Training in the PubllcS<;,hools, 1987 U.
ILL. L. REv. 15, 80 (1987) (arguing that "cultures do and should constram aod for a prudential approach to education that does not "equate cultural influence WIth cultu:a1 dom~­
tion" because schools can "inculcate a tradition that we acknowledge to be unfim~hed or ~n­
complete"); Sherry, supra note 10, at 188-90 (arguing that inculcative and uomnculcatlve
approaches do not conflict because it is a false dichotomy "[to] Pit student claImS of. mdependent, critical speech against the school's purported need to ~eep order and transmI.t values"). For a discussion of how traditional epistem~logy and I~ tendency towards b~polar
conceptualization limits analysis and options to eIther/or chOIces, see Martha Mmow,
Speaking and Writing Against Hate, 11 CARDOZO L. REv. 1393, 1397 (1990).
76 See GRANT, supra note 23, at 1; GUTMANN, supra note 27, at 33-41; Verchick, supra note 37, at 360.
- -
-----
----~.~
\J..lUy~
~~I
VUl. ';;I
B. THE EARLY SUPREME COURT: STUDENT GROWTH THROUGH FREEDOM OF
EXPRESSION
The Supreme Court's educational jurisprudence over the last century reveals
judicial recognition of multiple views of what constitutes the ideal education as
well as of the contradictory goals that have been articulated based on those
definitions. In an oft-discussed series of cases decided between 1923 and 1988,
the.Court considered the claims of students and their parents that schools, in a
varIety of contexts, had struck an unconstitutional balance, one favoring values
inculcation and community preservation to such an extent that students' fundamental rights had been infringed. 77 The controversies in all of these cases
centered on the efforts of school officials to regulate the thoughts and ideas ex"
pressed and received by students mIder their controp8 In each case, after considering the opposing arguments of the students and school authorities the
Court relied upon the bipolar conceptualization of educational purposes. 'specIfically, the Court focused on either the cultural necessity of values inculcation
to ensure community preservation or the student necessity of freedom of independent thought to ensure the development of a self-actualizing adult, one who
will one day meaningfully participate in our democratic political process.79
Moreover, in resolving the dispute in each case, the Court justified its results
by referencing either the community's or the student's (and parents') inter-
See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (involving a cballenge to drug testing of student athletes): Hazelwood Sch. Disl. v. Kuhlmeier, 484 U.S. 260
(1988) .(involving a challenge to censorship of school-sponsored student newspaper): Bethel
Sch. Dlst. v. Fraser, 478 U.S. 675 (1986) (involving a challenge to snspension of student
for delivering a voIgar campaign speech at a student assembly); New Jersey v. T.L.D., 469
U.S. 325 (1985) (involving a challenge to the search of a student's purse on less than probable cause); Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
853 (1982) (involving a challenge to the removal of "objectionable" books from the school
library); Tinker v. Des Moines Indep. Community Sch. Disl., 393 U.S. 503 (1969) (invoI:~g a challenge to the suspension of students for engaging in silent and nondisruptive
polItIcal protest); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (involvmg a challenge to mandatory student flag salute); Pierce v. Society of Sisters, 268 U.S.
510 (1925) (involving a challenge to a law requiring all students to attend only public
schools); Meyer v. State of Nebraska, 262 U.S. 390 (1923) (involving a cballenge to law
forbidding foreign language instruction in public schools).
77'
78
See Salomone, supra note 25, at 258.
79
Professor Westin, while discussing the related concept of privacy and its relationship
ests. 8O Therefore, the Supreme Coru;t's public school cases reflect society's
ambivalence toward the methods schools should use to educate youth; the Supreme Court historically has taken two divergent paths, one focusing on socialization, the other on student growth and autonomy.
In the early part of this century, the Court decided two cases in which it began to view schools as enviromnents in which student growth and autonomy
were to have primacy over other school purposes.81 In Meyer v. State of Nebraska,82 the Court struck down, on substantive due process grounds, a state
statute prohibiting instruction in foreign languages to students who had not
completed the eighth grade." In reaching its decisi(;m,'the Court acknowledged
in dicta the importance of education84 and the important inculcative function
that education performs, declaring "[t]hat the state may do much, go very far,
indeed, in order to improve the quality of its citizens, physically, mentally and
morally, is clear .... "85 Nonetheless, the Court chose to elevate the fundamental rights of students to acquire knowledge, of parents to control the education of their children, and of teachers to instruct students over the state's interest in transmitting cultural norms. 86 The Court held that the prohibition of
foreign language instruction exceeded the power of the state to inculcate and
conflicted with the rights of students, parents, and teachers. 87
80
See Verchick, supra note 37, at 343.
81 See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. State of Nebraska,
262 U.S. 390 (1923).
" 262 U.S. 390 (1923).
8l
See id. at 403.
See id. at 400. The Court observed that "[tlhe American people bave always reeducation and acquisition of knowledge as matters of supreme importance which
should be diligently promoted." Id.
84
gard~d
BS Id. at 401. The Court added that "[tlhe desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions. of
civic matters is easy to appreciate. Unfortunate experiences during the late war and averSIon
toward every character of truculent adversaries were certainly enough to quicken that aspi,.
ration." [d. at 402. The Court expressly rejected as extreme, however, the Platonic vision
pursuant to which the family would be subsumed by. the state so that the state could socialize
childr.n and develop ideal citizens. See id. at 401-02. For a discussion of the Platonic
family state, see GUTMANN, supra note 27, at 22-28.
to freedom, has noted that the "development of individuality is particularly important in
dem~cratic socie.ties, since qualities of independent thought, diversity of views, and nonconfonmty are consIdered desirable traits for individuals." Allan Westin, Science, Privacy, and
Freedom: Issues and Proposals/or the 1970's, 66 COLUM. L. REv. 1003, 1023-24 (1966).
86
See Meyer, 262 U.S. at 400-01.
87
Sedd. at 403.
Two years after the decision in Meyer, the Court decided Pierce v. Society
of Sister,88 and invalidated, on substantive due process grounds once again, a
state statute requiring children between the ages of eight and sixteen to attend
public school. 89 In so doing, the Court invoked the Meyer principle, which
recognized the rights of parents, children, and teachers and emphasized that
parents have a liberty interest "to direct the upbringing and education of children under their control. "90 The Court did not, however, as it had in Meyer,91
emphasize the importance of the state's interest in values inculcation. AI"
though the Court explicitly recognized the state's authority to regulate all
schools and supervise their operation, as well as require "certain studies plainly
essential to good citizenship, ,,92 the Court did not discuss the state's interest in
socialization and values inculcation in the same positive tone and to the extent
that it had in Meyer. 93 Indeed, the Court seemed to reject values inculcation, at
least in its extreme form, when it admonished that a state does not have the
general power "to standardize its children," for children are not "mere crea-
ture[s] of the state. "94
Thus, the Court in Meyer, and, to a lesser degree, in Pierce, acknowledged
the co-existence of individual and community interests and the tension between
them with respect to the mission of public schools. In Meyer, in particular, the
Court revealed its understanding of the central paradox of education: education
"must both inculcate and not inculcate; "95 it must foster and promote student
autonomy and at the same time shape student development by constraining present and future choices. 96 The Court's opinion in Pierce resonates less with
this understanding. In Pierce and Meyer, however, the Court found that the
schools had gone too far in promoting state-sponsored values and orthodoxy,
and, therefore, the Court limited the power of the states to inculcate students
by assuring students the options to learn a foreign language and to attend a private school.
Nearly twenty years after Pierce, in West Virginia State Board ofEducation
v. Barnette, 97 the Court again limited the power of the government to inculcate
students when it struck down a state statute requiring public school students to
salute the American flag while reciting the Pledge of Allegiance. 98 In Barnette,
88
268 U.S. 510 (1925).
89
See id. at 534-35.
94
Pierce, 268 U.S. at 535.
90
Id.
95
Bitensky, supra note 25, at 803.
See supra note 82 and accompanying text.
96
91
See Ingber, supra note 75, at 19. Professor Cremin has described the paradox as
"the generic polarity inherent in schooling," and has noted that
" Pierce, 268 U.S. at 534. Specifically, the Court observed that
lorn the one hand, schooling, like every other agency of deliberate nurture, social[n]o qnestion is raised concerning the power of the state reasonably to regulate all
schools, to inspect, supervise and examine them, their teachers and pupils; to require
that all children of proper age attend some school, that teachers shall be of good
moral character and patriotic disposition. that certain studies plainly essential to good
citizenship must be taught, and that uothing be taught which is manifestly inimical to
the public welfare.
Id.
93
The Court's comment that the state can "require ... that certain studies plainly es-
sential to good citizenship must be taught, and that nodring be taught which is manifestly
inimical to the public welfare," a recognition and endorsement of values inculcation as a
school purpose. is a much weaker endorsement than that in Meyer. [d.; if Bitensky, supra
note 25, at 797 (stating that the Court in Pierce "showed receptivity" to values inculcation in
the schools); Rosemary Salomone, Common Schools, Uncommon Values: Listening to the
Voices of Diss~nt, 14 YALE L. & POL'y REv. 169, 188 (1996) (stating that the Court in
Pierce gave a "nod" to and "acknowledged" values inculcation in the schools).
izes: it tends to convey the prevailing values and attitudes of the community or subcommunity that sponsors it. On the other hand. schooling, insofar as it exposes individuals to people and ideas not already encountered at home' or in church, liberates
and extends ... , Schooling-like education in general-never liberates without at
the same time limiting. It never empowers without ,at the same time constraining. It
never frees without at the same time socializing._ The question is Dot whether one or
the other is occurring in isolation but what the balance is, and to what end, and it
light of what alternatives.
LAWRENCE A. CREMIN, TRADmoNs OF AMERICAN EDUCATION 36-37 (1977); see also Stephen Arons & Charles Lawrence ill, The Manipuiation of Consciousness: A First Amendment Critique of Schooling, 15 HARV. C.R.-C.L. L. REv. 309, 309-10 (1980); Levm, supra
note 74, at 1647-54; Salomone, supra note 25, at 255-61; Sherry, supra note 10, at 131-33;
William B. Seobauser, Note, Education and the Court: The Supreme Court's Educational
Ideology, 40 VAND. L. REv. 939, 942-49 (1987).
'" 319 U.S. 624 (1943).
98
SeeJd. at 642. Under the West Virginia statutory scheme, failure to salute the flag
the plaintiffs were Jehovah's Wituesses who sought exemption from the statutory salute requirement on 1he ground that it was prohibited by their literal interpretation of the Bible." In evaluating the plaintiffs' claim, 1he Court acknowledged the important inculcative function of public schools by observing
that schools may teach history and govermnent, as well as the guaranties of
civil liberty, which tend to generate patriotism. IOO Moreover, the Court added
that in "educating the young for citizenship," states have '~important, delicate,
and highly discretionary functions. '101 Nonetheless, the Court refused to find
the inculcative function of public schools dispositive. 102
The Court framed the issue, before it as one involving coerced belief. The
issue presented, according to the Court, was whether public schools could require a compulsory salute for purposes of compelling student belief in national
unily.103 Instead of focusing on the transmission of values, the Court focused
on the benefits of student intellectual and spiritual diversily and autonomy, 104
was deemed to be insubordination and resulted in expulsion from school. See id. at 629. As
a result of the expulsion, a student could be prosecuted for being a delinquent and a· student's parents or guardian could be prosecuted because of the student's llnIawful absence
from school. See id.
99
See id.
100 See id. at 631. Quoting Minersville School District v. Gobiris, 310 U.S. 586, 604
(1942), the Court stated that "the State may 'require teaching by instruction aod srudy of all
in our history and in the structure and organization of our government, including the guaraoties of civil liberty which tend to inspire patriotism aod love of country.''' [d. (citation
ontitled).
101
[d. at 637.
102
See id. at 642.
103 See id. at 631, 640. The Court observed that the board of education adopted the
flag salute requirement as a device to promote national unity and not because it had any educational value. See id. at 631 u.12. According to the Court, "[njational unity as ao end
which officials may foster by persuasion and example is not in question. The problem is
whether under our Constitution compulsion as here employed is a permissible means for its
achievement." [d. at 640.
104
See id. at 641. The Court seemed to fmd suhstantial benefit in diversity of opinion
and even in contrary thinking when it stated:
[WJe apply the limitations of the Constirution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering
and held that "the flag salute and pledge transcends constitutional limitations
on ... [local authorities'] power and invades the sphere of intellect and spirit
which it is the purpose of the' First Atuendment to our Constitution to reserve
frotu all official control." 105 The Court emphasized the importance of educat"
. children for citizenship by teaching children that in our democratic regime,
mg
. freedom of expressIOn,
.
constitutional freedoms, like
are not mere p Iati'tudes. 106
In short, the essence of 13arnette is the Court's view that freedom of thought,
including student thought in public schools, is essential. to d~mocracy.~'. b'y
the same principle, as history reveals, "compulsory umfication of opltuon IS
inimical to democracy. 107
By 1943, therefore, the Court's emerging educational jurisprudence favo~ed
constitutional analysis giving student growth and autonomy more protection
than inculcation and the transmission of communily social, moral, and political
values. Although the Court in Barnette focused exclusively on student rights,
in contrast to Meyer and Pierce, in which the Court focused on student, parent,
and teacher rights, all three cases elevated concernS for student freedom and
autonomy over concerns of the communily. As the Court summarized in Bar"
nette, "If there is any fIxed star in our constitutional constellation, it is that no
official, high or pet1y, can prescribe what shall be orthodox in politics, nation"
alism, religion, or other matters of opinion or force citizens to confess by word
or act their faith therein.' 108 Significantly, Barnette established that because of
the importance of student growth and autonomy, efforts by school offici~s to
inculcate are to be evaluated against First Atuendment standards and subjected
to heightened scrutiny. 109
The Court's strongest statement of its belief that the First Atuendment mandates that public school students be afforded substantial latitude in developing
estimate of the appeal of our institutions to free minds. We can have. i~tellectua1 in..
dividualism and the rich cultural diversities that we owe to exceptional minds only at
the price of occasional eccentricity and abnormal attitudes.
[d. at 641-42.
lOS
[d. at 642.
1116
See id. at 637.
107
ld. at 641.
108 [d. at 642. Professor Verchick accurately has observed that Barnette supplied the
meaning to the substance and form of student autonomy that was vaguely articulated- in
Meyer aod Pierce. See Verchicle, supra note 37, at 34344.
109
See Barnette, 319 U.S. at 642.
and expressing their thoughts and beliefs came in 1969 when the Court decided
Tinker v. Des Moines Independent Community School District. 110 In Tinker,
the Court struck down a school policy prohibiting students from wearing black
armbands to protest United States involvement in the Vietnam War on First
Amendment groundS. 11I Not surprisingly, as it had done in previous cases, the
Court began its analysis by outlining its understanding that public schools must
simnltaneously promote individual rights and the sometimes contradictory values of the community, stating that
[t]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with
fundamental constitutional safeguards, to prescribe and control conduct
in the schools . . " Our problem lies in the area where students in the
exercise of First Amendment rights collide with the rules of the school
authorities. 112
In the end, however, the Court again viewed student rights to be superior to
community rights, at least in the First Amendment context. ll3 While the Court
in Barnette had concluded that students' rights had been infringed because the
school required students openly to affIrm certain state-sponsored beliefs,"4 the
Court in Tinker concluded that students' rights had been infringed for the opposite reason, because the school policy prevented them from openly dissenting. l15 Emphasizing that dissent is the strength of our country,"6 the Court
110 393 U.S. 503 (1969). Professor Salomone has written lhat Tinker represents "lhe
high-water mark of lhe students' rights movement." Salomone, supra note 93, at 192.
111 See Tinker, 393 U.S. at 514. The record evideuce revealed lhat school officials
adopted lhe armband prohibition for two reasons. See id. at 509-11. First, school officials
determined generally that schools were inappropriate places for political demonstrations,
reasoning lhat political change should be effected Ihrough lhe ballot box. See id. at 509 n.3.
Second, school officials adopted lhe armband prohibition because lhey specifically sought to
prohibit any opposition to lhe Vietnam War, as evidenced by lheir failure to prOhibit lhe
wearing of all symbols representative of political controversies. See id. at 510-11.
found that schools are not and cannot be allowed to become "enclaves of totalitarianism,""7 and, further, that students are not "closed-circuit recipients of
. the State chooses to commumca
. te"118
only that which
.
the Court's rejection of school indoctrination and orthodoxyll9 in Meyer,
Pierce, Barnette, and Tinker resonates with the pragmatic educational ideology
of John Dewey who advocated progressive education with its emphasis on experiential learning .120 According to Dewey, traditional education has as. its
primary purpose the transmission of information and rules from one generation
to the next, thereby making teachers nothing more than text books and rule
books wired for sound. l2l For this reason, Dewey believed that traditional
117
ld. at 511. In lhis regard lhe Court added !hat
[s]chool officials do not possess absolute aulhority over lheir students. Students in
school as well as out of school are "persons" under our Constitution. They are possessed of fuudamental rights which lhe State must respect, just as lhey lhemselves
must respect their obligations to the State.
ld.
118
[d.
119 See Verchick, supra note 37, at 343-49 (discussing lhe Court's reliance on lhe values of autonomy and freedom of lhought in Meyer, Pierce, Barnette, and Tinker).
120 See Salomone, supra note 93, at 190-93 (discussing lhe Court's re[jance on lhe
"Deweyian dialectical learning process" in Barnette and Tinker); Senhauser, supra note 96,
at 956 (discussing lhe Court's embracement of lhe Deweyian view lhat lhe student and lhe
school should have "reciprocal rather than an inculcative" relationship).
121 See JOHN DEWEY, EXPERIENCE & EDUCATION 17-19 (1938) [hereinafter DEWEY,
EXPERIENCE & EDUCATION]. See generally JOHN DEWEY, DEMOCRACY AND EDUCATION
(1916) (describing his lheary of education). A1; Dewey explained, a regime of traditional
education has three characteristics:
This
latter purpose. of course, constitutes viewpoint discrimination.
112
ld. at 507 (citations omitted).
The subject-matter of education consists of bodies of information and of skills !hat
have been worked out in the past; therefore, the chief business of the school is to
transmit them to the new generation. In the past, there have also been developed
113
See id. at 513-14.
114
See supra text accompanying notes 97-107.
115
See Tinker, 393 U.S. at 514.
116
See id. at 508-09.
standards and rules of conduct; moral training consists in forming habits of action in
conformity wilh lhese rules and standards. Finally, lhe general pattern of school organization (by which I mean lhe relations of pupils to one anolher and to tea~e~s)
constitutes the school a kind of institution sharply marked off from other SOCial mstitutions.
DEWEY, EXPERIENCE & EDUCATION, supra, at 17-18.
~UJ
education is "one of imposition from above and outside. "122 Heavily influenced by the dialectical theory of Hegel,I23 Dewey believed that traditional
education is misguided because. all genuine education comes from personal experience' not from the imposition of facts, values, and rules. 124 Thus, Dewey
believed that students learn and develop individualily when they are allowed to
express themselves, to learn skills and techniques as a means to attaining other
ends, and not as ends in themselves, and when they are allowed to learn about
the changing world and make the most of present opportunities, rather than
preparing only for the remote future. I25 In sum, Dewey believed that the primary purpose of education should be to mold the physical and social surrounding of students so that they have actual, meaningful experiences that lead
to personal growth. 126
When the Court repudiated homogeneily in Meyer,I27 mandated spiritual and
intellectual diversily, as well as self-determination with respect to individual
opinions and personal attitudes in Barnette, 128 and praised personal views that
deviated from the norm as one of the strengths of our country in Tinker,129 the
Court, in short, was endorsing Dewey's theory of progressive education. According to this view, schools should be learuing centers I30 where stlidents are
encouraged
to participate in a, wide rage of experiences in the educational proc131
Significantly, as the Court revealed, this participation includes exposure
ess.
122
DEWEY, ExpERIENCE & EDUCATION, supra note 121, at 18.
123 See generally JOHN DEWEY, FROM ABSOLUTISM TO EXPERIMENTAUSM (1930) (describing the dialectical nature of learning).
]24
See DEWEY, EXPERIENCE & EDUCATION, supra note 121, at 25.
]25
See id. at 19-20.
126
See id. at 40.
127
See Meyer v. State of Nebraska, 262 U.S. 390, 402 (1923).
12' See
(1943).
12' See
(1969).
130
132 See Barnette 319 U.S. at 641-42 (discussing "occasional eccentricity and abnormal
attitudes" as the pric~ we pay for "intellectual individualism and the,rich cultural diversities
that we owe to exceptional minds").
133 See supra notes 84-85, 92, 96, 100 and accompanyin.g text ~ text a~company~g
notes 95 & 101 (discussing the Court's ackoowledgment of the mculcatlve functIon of publIc
schools).
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 631, 641-42
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508-{)9
See Verchick. supra note 37, at 347 (discussing the model that views "schools as
learning centers that should (at least in part) encourage a loosely guided rehearsal of competing student voices").
l3]
to and an opportunily to challenge a wide variely of attitudes and views, even
those that might be labeled eccentric or abnormal. 1,2
While the Court's educational ideology during the period from Meyer to
Tinker protected student rights and autonomy, and, as a result, impl~citly promoted Dewey's progressive education model, the Court never. failed,. at a
minimum, to pay lip service to the educational purpose of values mcu~cation to
ensure communily preservation. I33 In Meyer, the Court stated that the state
may do much, go very far, indeed, in order to improve the qualily of its citizens, physically, )llentally and morally .... "134 Even in Barnette, a .case in
which the Court emphatically supported students' freedom of expressIOn and
independent thought to promote the development of self-actualizing adults, the
Court observed that "[n]ational unily is an end which officials may foster by
permission and example is not in question. "135 Thus, during ~s time .period,
the Court was cognizant of the educational purpose of values mculcatlOn and
never wavered in acknowledging its importance to the educational mission of
public schools.
'
The Court's apparent unwillingness to jettison values inculcation as a school
purpose at the same time as it fine-tuned an educational ide~logy d~voted t~ the
protection of divergent student speech w~thin the school.IS cI~~Istent WIth a
separate line of cases decIded rougWy durmg the same penod.
In, this parallel line of cases, the Court developed the theme that the First Amenthnent
rights of children are not as extensive as those of adults because of'cbil~en's
unique position relative to their parents and the state and because of therr less
developed capacily to engage in rational deliberation. 137
See Salomone, supra note 93, at 192.
l34
Meyer v. State of Nebraska, 262 U.S. 390, 401 (1923).
l3S
Barnette, 319 U.S. at 640,
l36 See Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726 (1978);
Ginsberg v. New York, 390 U.S. 629 (1968); Prince v. Massachusetts, 321 U.S. 158
(1944); see also New York v. Ferber, 458 U.S. 747 (1982).
137 See generally Ingb~r, supra note 75, at 18; Alison G. Myhra, The Hate Speech Conundrum and the Public Schools, 68 N.D. L. REv. 71, 117-20 (1992).
- --.----- __
~~,
.......... ........,.L.,'
oJ ......
v~UyLl.LJ
VUl. ';I
The first case in this series is Prince v. Massachusetts, 138 in which the
Supreme Court upheld the conviction of a parent who allowed her young sons
and her nine-year-old niece to sell religious materials on the street in violation
of state child labor laws. l39 Over the objection of the mother, who claimed
protection for her actions based upon the Free Exercise Clause of the First
Amendment and the general rights of parents secured by the Due Process
Clause of the Fourteenth Amendment,140 the Court held that the state possessed
substantial power to safeguard children from the potential psychological and
physical injuries associated with propagandizing the community for religious,
political, or other purposes.1 41 In an interesting passage, the Court revealed
what it believed to be problematic about the mother's actions and why state intervention was necessary as well as constitutional. I42 Specifically, the Court
stated, "Parents may be free to become martyrs themselves. It does not follow, however, that parents are, in identical circumstances, to make martyrs of
their children before they have reached the age of full and legal discretion
when they can make that choice for themselves. "143
In Ginsberg v. New York, 144 the Court again focused on tlle developmental
138
321 U.S. 158 (1944).
139
See id. at 159-62, 170.
140
See id. at 164.
1999
DRESS CODES AND FREEDOM OF EXPRESSION
367
characteristics of children and tlleir lack of capacity to make mature decisions. I45 In balancing tlle autllority of parents to raise tlleir children,146 tlle independent interest of tlle state in guarding the well-being of children,147 and tlle
constitutional rights of children,'48 tlle Court determined tllat even when a state
regulation related to children seems tu infringe an otllerwise protected freedom,
"'tlle power of tlle state to control tlle conduct of children reaches b~yond. tlle
scope of its autllority over adults. "'149 Accordingly, tlle Cou:t had h.uJ:e dIfficulty in upholding Ne~ York's criminal obscenity statute, which prohibited tlle
sale of books and magazines deemed to be obscene to children but not necessarily to adults to children under tlle age of seventeen. ISO
145
See id. at 638. The Court noted that
[tlhe world 'of children is not strictly part of the adult realm of free expression. The
factor of immaturity, and perhaps other considerations, impose different. rules.
Without attempting here to fonnulate principles relevant to freedom of expressIOn for
children, it suffices to say that regulations of communication addressed to them need
not confonn to the requirements of the ftrst amendment in the same way as those applicable to adults.
ld. at 638 n.6 (qnoting Thomas 1. Emerson, Toward a General Theory of First Amendment,
141 See id. at 169-70. Acecrding to the Court, the anthority of the Slale is snbstaotial.
Specifically, the Conrt Slated that
[t]he state's authority over children's activities is broader than over like actions of
adults. This is peculiarly true of pUblic activities and matters of employment. A
democratic society rests, for its continuance, upon the healthy. well-rounded growth
of young people into full matority as citizens, with all that implies. It may secure
tins against impeding restraints and dangers, within a broad range of selection.
ld. at 168. Professor Freeman has noted that Prince "is a clear recognition of the principle
that parental rights and First Amendment freedoms must sometimes give way to a regulation
of the conduct of children, even though the regulation imposes incidental burdens on persotta1liberties." Briatt A. Freematt, The Supreme Court and First Amendment Rights of Students in the Public School Classroom: A Proposed Model ofAnalysis, 12 HASTINGS CONST.
L.Q. I, 25-26 (1984).
142
See Prince, 321 U.S. at 170.
143
ld. at 170.
144
390 U.S. 629 (1968).
72 YALEL.J. 877, 938-39 (1963».
146
See id. at 639.
147 See /d. at 640. The Court emphasized that slates must protect the welfare of children so that they can mature into free and independent, well,-developed citizens. See ld. at
640-41.
148
See id. at 638.
149
!d. (quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944)).
150 See id. at 639, 643. Jnstice Stewart, in his concurring opinion, added att insight
related to captive audiences. Specifically, Justice Stewart stated:
I think a State may permissibly determine that, at least in some precisely delineated
areas, a child-like someone in a captive audience-is not possessed of that full capacity for individual choice which is the presupposition of First Amendment. guar~­
tees. It is only upon such a premise, I should suppose, that a State may depnve chIldren of other rights-the right to marry, for example, or the right to votedeprivations that would be constitutionally intolerable for adults.
ld. at 649-50 (Stewart, 1., concurring) (footuoles omitted).
/JLJ.L VlV CU1.J...JL, .....
U1V/Jl11 Ul1UNAL LA W
JOURNAL
Vol. 9
Federal Communications Commission v. Pacifica Foundation 151 is fue fuird
case in ills parallel line of cases. In Pacifica, fue Court upheld fue power of
fue Federal Communications Commission to proscribe fue daytime radio
broadcast of material that is indecent, but not obscene. 152 The Court, as it had
in Prince and Ginsberg, focused on fue governn1ent's general interest in protecting children. 15' Recognizing that .children have easy access to daytime ra.dio broadcasts, and in light of fue concerns outlined in Ginsberg, fue Court
held that aInple justifica.tion existed to justify special treatInent of indecent ma.terials on fue radio Y'
The Prince, Ginsberg, and Pacifica trilogy definitively established fue
aufuority of fue state to protect children from potential danger, even if fue protection afforded fue children linIited fueir First Amendment rights and freedoms and even if such protection would be constitutionally inIpennissible if it
were extended to a.dults. In all tlrree ca.ses, fue Court showed solicitude for
children for fue sole reason that fue future of our democrntic reginIe rests on
fue development of children into healfuy, well-developed adultli. Against ills
backdrop, it is not difficult to understand why fue Court in Meyer, Pierce,
Barnette, and Tinker felt compelled to recognize values inculcation as a school
purpose while at fue SaIne time crea.ting an educa.tional ideology wifu protection
of freedom of student expression and student autonomy as its touchstone.
C. THE CURRENT SUPREME.COURT: COMMUNITY PRESERVATION THROUGH
VALUES INcULCATION
The Supreme Court's educa.tional ideology, like fue personal belief systems
and ideologies of most people, has evolved over time. The evolution of any
ideology is marked by change, bofu obvious and subtle, and fue Supreme
Court's educational ideology is no exception. The Court's most recent decisions involving students reveal that fue Court has shifted its perspective in a. not
so subtle wa.y. 155 These ca.ses establish that while student tights and a.utonomy
remain on fue distant horizon, fue critically inIportant aspect of schooling is
DRESS CODES AND FREEDOM OF EXPRESSION
1999
values inculcation, that is, persuading children that certain preselect~~ values,
In fue
beliefs and attitudes are superior to ofuers and are to be preferred.
Court'~ view values inculcation will ensure fuat students are socialized in a
way fuat pr:serves fue community, and, indeed, dem~cra~y itself. 157 The
Court, fuerefore, to some degree, has changed fue way It thinks abo~t educational fueory. While fue Court previously .had. elevated student rIghts and
autonomy over values inculcation, in recent decisions, fue Court has done Just
fue opposite and has elevated values inculcation over student rights and auton.
omy.
If Prince, Ginsberg, and Pacifica,158 cou?led wifu fue custo~ ac:o~l­
edgments of values inculcation in Meyers, Pierce, Barnette,. and Tinker, laId
fue early groundwork for fue shift in fue Court's perspective, fuen Brown v.
Board of Educationl60 provided early validation of fue legitimacy of fue shift.
The Court's understanding in Brown that providing education is fue most inIportant function of fue states and, more inIportantly, ~at education is ~e key
to developing productive citizens was absolutely essential to fue Co~ s holding fuat racially segregated public schools violate fue Equal protection C!ause
of fue Fourteenfu Amendment. 161 The Court's own words reveal fue clanty of
its understanding:
Today, education is perhaps fue most inIportant function of state and local governments. Compulsory school attendaIIce law~ ~d fue gr~a.t .expenditures for education bofu demonstrate our recogmtion of fue ~por­
tance of education to our democratic society. It is reqUIred m fue
"6 See generally Myhra, supra note 137, at 114-28; Salomone, supra note 93, at 19396; Verchick, supra note 37, at 349-55. The pedagogical aod co~ti~tional rub, of course,
as Professor Salomone has stated, is that "[t]he act of SOCIalIZation InevItably Involves the
schools in the formation of student ideas, based upon community (that is, majority) preferences which, in turn. establish the limits of one's ability to engage in self-expressIOn." Salomone, supra note 25, at 261.
157 See Salomone, supra note 93, at 193 (noting that in the current ~ses, "[w]he~e the
Justices discuss values, they view them from two perspectives, reaffir~~g the author~ty of
school officials to uphold the values of the community as well as the miSSIon of schoolIng to
promote the fundamental values of a democratic society").
151
438 U.S. 726 (1978).
"2
See id. at 748-51.
153
See id. at 749.
158
See supra text accompanying notes 136-154.
154
See id. at 750.
159
See supra text accompanying notes 127-129.
15'
See, e.g., Vernonia Sch. Dis!. 47J v. Acton, 515 U.S. 646 (1995); Hazelwood Sch.
160
347 U.S. 483 (1954).
161
See id. at 493,495-96.
Dis!. v. KuWmeier, 484 U.S. 260 (1988); Bethel Sch. Dis!. v. Fraser, 478 U.S. 675 (1986);
New Jersey v. T.L.O., 469 U.S. 325 (1985).
369
....LJ,A.....,u
,UL7.LJL \";VIV~.l.Ll
UllU1VAJ... LA W JUURNAL
Vol. 9
performance of our most basic public responsibilities, even service in the
arm~d :orc~s. It is the very foundation of good citizenship. Today it is
a P~CI~al mstrnnIent in aWakening the child to cultural values, in preparmg him f~r late~ professional training, and in helping him to adjust
normally to his enVIronment. In these days, it is doubtful that any child
may reasonably be expected to succeed in life if he is denied the opportunity of an education. 162
Implicit in the Court's words is a genuinely held belief in the existence of a
.
shared political vision and community. 163
1.!sing Brown as a springboard, the Court emphatically stated in 1979 that
p~blic schoo~s. perfornI two crucial civic functions. l64 First, they prepare indiVIduals for CItizenship in our political community. 165 The role of teachers is to
mo!d students' ~ttitudes about gove=ent, and, at the same. tillIe, to develop
theIr understandmg. of the role: of citizens. 166 Second, public schools preserve
~e values upon which our SOCIety rests,167 including, the values of freedom and
.
mdependence. l68
.By 1980, thc:refore, the Court appeared to be on the verge of an ideological
swmg because It was moving away from Tinker's emphasis on student autonomy aud the necessity that learning occur in the marke1place of ideas, namely,
schools. Not only had the Court's earlier cases suggested and validated values
[d. at 493.
163
See id.
164
See Ambach v. Norwick, 441 U.S. 68, 76 (1979).
. J65S
. ee I'd. A ccord'mg to the Court, by educating children, schools fulftll a fundamental
obhgation of government to its constituents. See id.
1~7 See id.. at 76. The Cou~ o?Served tha~ authorities, jncluding John Dewey, have
per~lved pubhc schools as constitutmg an "aSSImilative force," bringing diverse parts of
socIety .together to form a cornmon ground. See id. at 77. The Court added that "[tIhose
perceptIOns of the publIc schools as inculcating fundamental values necessary to the mainten~ce. of ~ demo~rat~c politi~al system have been confonned by the observations of social
168
!d. (cItations omItted).
S
.,
ee Plyer v. Doe,. 457 U.S. 202, 221 (1982). Three members of the Court in Board
of Education v. PICa, mdlcated that in addition to political values, schools also transmit and
promo~e resP'7t for authority and social and moral values. See 457 U.S. 853, 864 (1982)
(plurahty opmlOn).
~Il
inculcation as a wholly desirable and legitimate school function, but, in addition, social and cultural forces were. at work, suggesting to some that greater
school control of smdents was necessary.16' By 1980, society had become
postmoderu,I70 and to many there no longer seemed to be any consensus on
moral traditions, social values, or venerated institutions. In In short, many
people began to see all too clearly the symptoms of social and moral confusion,
symptoms that needed to be cured. 172 In ·addition, a great deal of criticism had
grown up around progressive education, the very foundation of Tinker. I73 This
criticism charged that progressive education, much like postmodernism in general, was culturally relativistic and overly permissive. 174 Thus, it was not altogether surprising when the Court in Bethel School District v. Fraser,175 decided
in 1986, and Hazelwood School District v. Kuhlmeier,176 decided in 1988, deternIined that schools must be allowed to transmit community values, whether
.
political, social, or moral. 177
In Fraser, the Court upheld the power of school authorities to suspend a
high school student who, during a school-sponsored assembly, had delivered a
campaign nomination speech comprised almost entirely of sexual innuendo. 178
According to the Court, this was not a case like Tinker I7' requiring First
Amendment protection for the student's speech, for the obvious reason that the
lewd aiId obscene speech here was fundamentally different from the political
170
See supra notes 4-22 and accompanying text.
J71
See supra notes 4-22 and accompanying text.
172
See supra notes 4-22 and accompanying text.
173
See Salomone, supra note 93, at 193.
174
See id.
175
478 U.S. 675 (1986).
176
484 U.S. 260 (1988).
177
See id. at 266-67; Fraser, 478 U.S. at 685-86.
See id. at 78.
SCIentISts.
lJlW!ii:i C;UlJ1!.!i ANlJ l'lW1!.lJUM Ul' 1!.lU'lW!i!iIUN
169 See supra notes 4-22 and accompanying text (discussing society's movement from
modernism to postmodernism).
162
166
IYYY
178 See Fraser, 478 U.S. at 683-85. The Court labeled the speech "offensively lewd
and indecent." ld. at 685.
179
See supra text accompanying notes 110-118.
VOL
~
message of the armbands in Tinker. l80 Thus, the Court expressly departed
from Tinker and promoted pUblic schools' role as champions and transmitters
of community values,l'l those "fundamental values of 'habits and manners of
civility' essential to a democratic society. "182 The Court concluded that because it is a "highly appropriate function" of public schools to prohibit the use
of vulgar and offensive words in public discourse,l83 it was "perfectly appropriate" for the school to disassociate itself from the student'.s speech to make
the educational point that vulgar speech and lewd conduct are inconsistent with
the fundamental values ofpublic school education. 184
The Court in Fraser articulated more clearly and emphatically than ever before an educational ideology centered on values inculcation and the community's freedom to control student expression in order to protect community values. This alone makes the opinion significant. There is, however, an
additional reason. An unspoken premise in Fraser is that public schools constitute a traditiOnal societal authority. What emerges from the majority's
opinion is an awareness that the authority of public schools has slipped in recent years as well as the commitment to undertake that which is uecessary to
"0
See Fraser, 478 U.S. at 680, 685.
181 The Court's opinion in Fraser is replete with endorsements of values inculcation in
the schools to ensure the survival of the country. See id. at 681-83. The folIowing statement regarding civility is illustrative:
The role and purpose of the American pUblic school system were welI described by
two histOrians who stated, "[P]ubhc edncation must prepare pupils for citizenship in
the Republic. . .. It must inculcate the habits and manners of civility as values in
themselves conducive to happiness and as indispensable to the practice of selfgovernment in the community and the nation." C. Beard & M. Beard, New Basic
History of the United States 228 (1968). In Ambach v. Norwick, 441 U.S. 68, 7677, 99 S. Ct. 1589, 1594, 60 L.Ed. 2d 49 (1979), we echoed the essence of this
statement of the objectives of public education as the "inculcat[ion of] fundamental
values necessary to the maintenance of a democratic political system."
!d. at 681.
182 [d. The Court noted that the fundamental values of our society include tolerance of
diverse political and religious views, even unpopular and controversial views but that SUch
views in the schools must be balanced against the countervailing societal inter~st in teaching
children the "boundaries of socially appropriate behavior." [d.
183
See id. at 683.
]84
See id. at 685-86.
restore that authority.
In Hazelwood School District v. Kuhlmeier,l85 the Court, once again, addressed the extent to which public schools permissibly may control students'
speech. In Hazelwood, former high school stud~nts claimed that ~eir First
Amendment rights had been violated when the prmclpal cut two amcles from
an issue of the high school's official newspaper, one dealing with tlrree classmates' experiences with pregnancy and the other with the inlpact of parental
divorce on students at the schooL 186 The Court dismissed the First Amendment
challenge and upheld the school;s authority to control the content of the students' newspaper. l8? The Court ruled that with respect to school-~ponsored
speech, including "school-sponsored pUblications, theatrical producl1ons, ~
other expressive activities that students, parents, and members of the public
theh
sc 00I, "188'mo.ther
might reasonably perceive to bear the inlprinlatur of ·
words,activities that fairly may be characterized as part of the school :UIT1;Ulum school officials may regulate the style and content of the expressIOn so
10U~ as their actions are reasonably related to. legitimate pedagogi.cal concerns. "1'9 According to the Court, school offiCials are free to set high standards for student speech 'that is disseminated under its auspices, standards that
may be 1righer than those inlposed by newspaper publications and theatrical
produCers in the outside world. 190 Furthermore, when student work ~ails to
meet school standards, the school is within its rights to refuse and, mdeed,
,
'.
191
should refuse to publish the work.
185
484 U.S. 260 (1988).
186
See id. at 263.
187
See id. at 271.
188
[d.
'" [d. at 273 (footnote omitted). Tbe Court stated that when a school acts in its capacity as a publisher or producer, it may disassociate itself from speech that would SUbS~lally
interfere with its work and impinge the rights of other students, ,as well as speech that IS ungrammatical, poorly written, inadequalely researched, biased or prejudicial, vulgar or profane, or unsuitable for immature audiences. See id. at 271.
190
See id. at 271-72.
191 See id. at 272. Hazelwood is an important case because it is relevant to ~e issue of
the relationship between free speech principles and economic power. More pr:cIsely, HazelWood is all about a larger issue that has surfaced, namely, what happ~ns to FIrst ~e."d­
ment principles when the govermnent, relying on its enormo~s· econonuc power, subSIdiZes
the speech under consideration? In Hazelwood, the Court, ill effect, held that because. the
govermnent subsidized the operation of the students' paper, the govermnent was the edItor,
~/J
V VA.. ";;I
Hazelwood is the Court's most recentl92 and definitive l93 statement on the
relationship between students' free speech principles and public schools' function to relay values and beliefs from one generation to the next. Hazelwood
and Fraser signal a significant change in the Court's understanding of the educational ntission of public schools and the way they go about educating childreu
for the future. The Court's opinions seem to be grouuded in a certain disapand therefore, the government was entitled to dictate content and choose which articles to
publish. See id. at 272-73. A$ a result, the government obtained eXclusive control over
dialogue within the school. See id. at 273. The Court employed similar analysis in Rust v.
Sullivan, 500 U.S. 173 (1991).
Hazelwood is an important case for at least one other reason. Doctrinally it is interes:mg to see how Tim:er, F.raser, and Hazelwood fit together or, perhaps more' accurately,
fall to fit together. Tinker IS the reference point. In Tinker, the Court held that a school's
regulation prohibitiog students from wearing black armbands was unconstitutional becanse
the school failed to present any evidence that the armband would interfere with or disrupt the
pointmeut with today's youthl94 and the more generalized postmodern decline
of society due, in large part, to the perceived tolerance of all tastes, world
views and outiookS. 195 To combat the excesses of tolerance found in society
and more problematically in the classroom, that is, to combat the evils of premarital sex, drug abuse, rock music, rap music, materialism, violence, a1ieuation, pornography, to mention a few,l96 Hazelwood an~ Fraser call for a. return
to discipline, respect for authority, and perhaps most nnportantly, the smgular
values of the community's majority in the c1assroom. 197 In sum, Hazelwood
and Fraser provide a considerable grant of authority to public schools to inculcate values and socialize students in accordance with the prefereuces of the
majority, and to do so notwithstaJiding that those preferences may not be ones
that students have chosen for themselves. 198
m. THE FIRST AMENDMENT AS A LIMITATION ON SCHOOL
HAIR LENGTH RULES AND EARRING PROHIBITIONS
school's work or interfere with the rights of other students to be secure and to be let alone.
See Tinker v. Des Moines Indep. Commuoity Sch. Dis!., 393 U.S. 503, 508, 514 (1969).
In Fraser, the Court did not apply the Tinker substantial disruption tesl, but instead created a
new analytic model, which entitled the school to disassociate itself from lewd and vulgar
student speech. See Betliel Sch. Dis!. v. Fraser, 478 U.S. 675, 685-86 (1986). The majorIty, h~weve~, could h.ave applied Tinker and concluded that Fraser's lewd and vulgar speech
was dIsruptive. JustIce Brennan, in his concurring opinion, applied Tinker to uphold the
school's puoishment of the student. See id. at 687-88 (Breunan, 1., concurring). In Hazel'
wood, however, the Court expressly noted that it was not applying the Tinker standard. See
Hazelwood, 484 U.S. at 270-71. Instead, the Court focused on whether the speech at issue
arose in the school's curriculum and, therefore, was school-sponsored. See itt. at 271-73.
In dissent, Justice Breunan asserted that the Court inappropriately had abandoned the Tinker
standard. See id. at 282-83 (Breunan, J., dissentiog). The result of these cases is the emergence of three distinct doctrinal approaches.
192. In several other cases, the Co~ also has chosen to treat students differently from
adults m the public school setting. In these cases, however, the First Amendment was not
under consideration. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (involving
a Fourth Amendment challenge to random urinalysis drug testiog of student atl!letics); see
also New Jersey v. T.L.O., 469 U.S. 325 (1985) (involving a Fourth Amendment challenge
to a warrantless search in a high school).
'
'93 See Salomone, supra note 93, at 196. According to Professor Salomone Hazelwood is the Court's "most definitive statement on public schooling as the primary veiucle for
transID1~mg our 'S~ed values.''' ld. In Professor Salomone"s view, H(lZelwood has two
underlymg assumptions. The fIrst assumption is that there exists an identifIable set of common values shared throughout society and in a particular community. See id. The second
assumption, according to Professor Salomone, is that it is desirable for school curricula to
be stand~dized according to both the common values shared throughout society and the
more partIcular values that may be held by a local commuoity as established by local school
officials. See id.
A. THE NEW WAVE OF SCHOOL RULES: ATTEMPTS To INCULCATE By
CONTROLLING APPEARANCE
School districts eager to join the community values movement that has
swept through the countryl99 or eager to regain control over student behavior
194 See Fraser, 478 U.S. at 683 (discussing Fraser's speech as lewd, indecent, and offensive and concluding that he is a "confused boy").
195
See supra notes 10-11 and accompanying text.
196
See Salomone, supra note 93, at 198.
197
See Verchick, supra note 37, at 340.
198
Professor Bitensky has drawn the same conclusion, stating that
[tlhe U.S. Supreme Court's decisions in Fraser and [Hazelwood],
ifn~t
a clarion call
to action, are at least authoritative reassurance that the natIon's publIc and elementary and secondary schools may, and indeed are expected to, take full advantage of a
considerable latitude for inculcation afforded them under the Free Speech Clause.
Bitensky, supra note 25, at 824.
199 In the Mirmeapolis metropolitan area, for example, several suburbs hav~ organized
civic groups to promote the shared values of the community. See, e.g., Values FIrst, Values
First: Columbia Heights, Hilltop, Fridley (n.d.) (pamphlet describing the efforts of Values
have seized the opportunity created by H(JZelwood and Fraser. They have done
so, in part, by vigorously enforcing hair and earting rules already in place or
by implementing new rules. 2oo Typically, dress and groOming rules proWbit
boys from wearing eanings and from wearing hair longer than a specified
length.201 In Colorado Independent School District v. Barber,202 for example,
the challenged Wgh school regulation, wWch is typical of such regulations,
provided as follows; ,
Boys may wear hair to the bottom of the collar, the bottom of the ear
and combed out of the eyes. Boys may not wear earrings of any kind.
Caps and hats not part of women's formal attire may not be worn in the
building. Sudden, unbecoming fasWons or anything designed to attract
First, a group of citizens seeking to promote responsibility,. nonviolence, self-control, citizenship, integrity, respect, and caring in the Minneapolis suhorhs of Columbia Heights,
Fridley, and Hilltop). The primary fuuction of these grassroot groups is community education to pro:Q1ote basic values. See id.
200 See, e.$., Hines v. Caston Sch. Corp., 651 N.E.2d 330, 331 (Ind. Ct. App. 1995)
(involving
elementary school tha~ suspended a male student for wearing an earring);
Board Of Trustees of Bastrop Indep. Sch. Dis!. v. Toungate, 958 S.W.2d 365, 366 (Tex.
1997) (involving an elementary school that suspended a male student for wearing his hair in
'
a ponytail).
an
201
In Bastrop Independent School District v. Toungate,204 the challen~ed ~egula­
tion was crafted in nearly identical language. It stated that "[b]oys harr must
meet the following guidelines: The rear length must be no longer ~~ to the
om of a regular sWrt collar. On the sides, the ear lobe must be VIsible. In
bott
f
b
"205 I
the front, the length cannot be longer than the top 0 the eye rows. , n
Hines v. Caston School Corporation,206 a fourth-grade boy ~allenged an ~n­
written regulation, wWch school officials advised preciuded hun fr~m wearmg
a single gold stud eaning?O' The boy's challenge agamst the unw.ntten regulation evolved into a challenge against a written regulation, wWch the local
school board subsequently passed.20' The regulation provided that "[s]tude~ts
are not to wear jewelry or other attachments not consistent With commumty
standards or that could pose a health or safety hazard to either the student Wm. Ws presence. "209
self or to other students m
,
The ratiouales supporting these types of hair length limitations and earting
proWbitions vary."o The most fre~ently. asserted j~stification i~ the prevention of disruption in the ciassroom m particular and m the educatIOnal proces~
in general. 2l ! Other reported justifications inciude the need to protect students
203
ld. at 806 n.1.
204
958 S.W.2d 365 (Tex. 1997).
20S
[d. at,367.
206
651 N.E.2d 330 (Ind. Ct. App. 1995).
207
See id. at 331.
208
See id.
209
[d.
See, e.g., Oleson v. Board of Ednc. Sch. Dist. No. 228, 676 F. Supp. 820, 821
(N.D. lll. 1987) (involving school regulations prohibiting, among o$er things, jewelry evidencing gang membership or affiliation); Hines, 651 N.E.2d at 331 (involving an unwritten
school regulation prohibiting maIe students from wearing earrings); Toungate, 958 S.W.2d
at 367 (mvolving a schOOl regulation prohibiting male students from wearing long hair);
Barber v. Colorado Indep. Sch. Dist., 901 S.W.2d 447,448 (Tex. 1995) (involving a school
regulation prohibiting male students from wearing long hair and earrings). Doring the
196(l's and 1970~s, there were over 120 reported cases in which students challenged public
,schOol dress and grooming codes. See TRlBE,supra note 32, § IS-IS, at 1385 n.14. These
cases priroarily dealt with student challenges to hair length and facial hair limitations ou
male slUpents. See, e.g., Arn~ld v. Carpeuter, 459 F.2d 939, 940 n.2 (7th Cir. 1972) (involving a school regulation prohibiting male students from wearing long hair and long sideburns and mandated that faces be clean shaven); Bishop v. Colaw, 450 F.2d 1069, 1070-71
(8th Cir. 1971) (involving a school regulation prohibiting male stuPents from wearing long
hair and long sideburns); King v. East Side Uuion High Sch. Dis!., 445 F.2d 932, 934-35
(9th Cir. 1971), cerl. denied sub nom. 01ff v. East Side Uuion High Sch. Dist., 404 U.S.
1042 (1972) (involving a school regulation prohibiting male studentS from wearing long
hair). For a listiug of all the'cases decided during the period 1965-1975, see NIMMER, supra
note 32, § 3.06[E][2], at 3-65 to 3-66 un.110-15, and supra text accompanying note 32-34.
202
undue attention to the individual or activities are not acceptable?O'
864 S.W.2d 806 (Tex. App. 1993), aff'd, 901 S.W.2d 447 (Tex. 1995).
;!.10 For discussions that canvas actual and speculative reasons why schools impose hair
length lintitations and earring prohibitions ou maIe studeuts, see NIMMER, supra uote 32, §
3.06[E][2], at 3-68 to 3-69; Recent Coses, supra note 32, at 1712-17; Comment, supra note
32, at 714.16.
211 See, e.g., Crews v. Clones, 432 F.2d 1259, 1265 (7th Cir. 1970); Jackson v. D~r­
rier, 424 F.2d 213,216-17 (6th Cir. 1970); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Crr.
1969), cert. denied, 398 U.S. 937 (1970); Corley v. Daunhauer, 312 F. Supp. 811, 814-15
(B.D. Ark. 1970); Brick v. Board of Educ., 305 F. Supp. 1316, 1319 (D. Colo. 1969);
Giangreco v. Center Sch. Dist., 313 F. Supp. 776,779 (W.D. Mo. 1969); Colorado Indep.
Sch. Dist. v. Barber, 901 S.W.2d 447,448 (Tex. 1995).
Y V,l.
;7
safety and prevent physical harm,212 to teach good grooming and hygiene 213 to
teach respect for autho~ty214 because students who conform to cO~unity
standards perform better m school,215 to protect students from health haz d 216
t~ create a positive l~~g environment and instill discipline in studen:::21~' to
dIscourage gang affili~tIon. and activities218 as well as the drug cUlture,219 and,
~enerally, to pr.event IDIparred receptivity to the curriculum because of rebellious student attitudes. 220
One school wh~se regulation was challenged boldly and honestly stated
~hat one susp~cts IS ~e .r~al justification for most if not all hair length limitations and. e~g prohibItions in the schools: students must be controlled becaus~ ~.fornnty IS good and the expression of alternative lifestyles is bad 221
If tltis IS m fact the real reason, the current state of affairs is quite alarming >22
' v. Hemy, 455 F.2d 779, 783 (4th Cir. 1972)' Crews 432 F 2d t
. ee, e.g., M
aSSle
1266; Hmes, 651 N.E.2d at 334: Barber, 901 S.W.2d at 448.
'
,
. a
21'S
213
See, e.g., Barber, 901 S.W.2dat448.
214
See, e.g., id.
215
See, e.g., Breen, 419 F.2d at 1036.
2]6
S,
ee, e.g., Gere v. Stanley, 453 F.2d 205 209-10 (3d Cir 1971) But
Kar
Schmidt 320 F S
' .
.
see
r v.
.'
. upp. 728, 733 (W.D. Tex. 1970), rev'd on other grounds 460 F 2d 609
(5~ Crr. 1972) ("[T]he style in which one chooses to wear his hair has no' relatio~hi to
habIts of personal hygIene one develops throngh parental training and peer gro infl p
Female students have traditionally kept long hair clean. ").
up
uence.
217
at 448.
S
u
ee, e.g., "Lassie, 455 F.2d at 783; Hines, 651 N.E.2d at 334; Barber, 901 S.W.2d
218
See, e.g., Hines, 651 N.E.2d at 334.
219
See, e.g., id.
220
See, e.g., id.
22~ See Stull v. S~hool Bd. of Western Beaver Jr. - Sr. High School, 459 F.2d 339, 347
(3d Crr. 1972) .. In BIShop v. Colaw, the Eighth Circuit noted that most of the school's as~~rtedJUstlficattons were mere conclusory allegations about disruptions. See 450 F.2d 1069
".76 (8th Crr. 1971). The court saw through the school's transparent assertions stating tha;
It IS appare~t .that the opinion testimony of the school teachers and administr~tors which
l~ck any empmcal foundation, likely reflects a personal distaste of longer hairstyles: which
dIStaste IS shared by many m the older generation." [d. at 1076 (footnote omitted).
22'
See NIMMER, supra note 32, § 3.06[E][2], at 3-69. One student law review editor
1999
DRESS CODES AND FREEDOM OF EXPRESSION
379
If school officials zealously are enforcing hair length limitations and earring
prohibitions against male students on the basis of personal taste and for the
purpose of promoting uniformity for uniformity's sake, their actions are constitutionally problematic, for, as the Court stated in Tinker, schools may not be
"enclaves of totalitarianism" and students may not be regarded as "closedcircuit recipients of only that which the State chooses to communicate. "223
Thus, while schools can and should inculcate values and socialize students,224
schools are not free to act arbitrarily and impose unjustifiable limitations on
student choices. 225
The new hair length limitations and earring prohibitions are the result of the
Court's invitation to schools to increase their efforts to instill in students norms
of civility and the shared values of the community. Because an argument can
be made, however, that some schools have gone too far in seeking to promote
the interests of the community, we have retIirued once again to the central
paradox of education: how are schools to socialize students and at the same
time honor and protect their rights and autonomy?226 Thus, the issue is
whether the new hair length limitations and earring prohibitions exceed the
power of schools and, therefore, infringe students' constitutionally protected
rights and freedoms, specifically their First Amendment right to freedom of
expression. Regrettably, some authorities have concluded that hair length and
other aspects of student appearance are unimportant vis-a-vis other issues of the
day; indeed, some jurists and courts have urged that courts have no time or
wrote over twenty years ago that
[wlhat is disturbing is the inescapable feeling that long hair is simply not a source of
significant distraction, and that school officials are often acting on the basis of personal distaste aruplified by an overzealous belief in the need for regulations. If the
restrictions were lifted, long hair would probably cease to be even a novelty, much
less a cause for concern. Long hair has clearly become increasingly more acceptable
to middle America, and it seems doubtfnl that any high school student could be intrigued for very long by the sight of it.
Recent Cases, supra note 32, at 1715-16 (footnote omitted).
223
Tinker v. Des Moines Indep. Community Sch. Dist, 393 U.S. 503, 511 (1969).
224
See Bitensky, supra note 25, at 842-43: Myhra, supra note 137, at 107-29.
'25 See Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365,
375 (Tex. 1997) (Spector, 1., dissenting).
226
See supra notes 48,74-76 and accompanying text.
- -- -
-
._~
.............
., ............. UllaLJ
VUL ':::I
bus.iness invo~ving themselves with such trivial matters. 227 Those advocating
JUdiCIal restramt and even noninvolvement in this area, however, are wrong.
As Justice Jackson explained in Barnette,22' school boards have "important
delicate, and higWy discretionary functions, none that they may not peljor';'
within the limits of the Bill of Rights. • 229 Accordingly, school officials should
1
lYYY
not assume, even after Hazelwood and Fraser, that they have unbridled discretion to establish dress and grooming regulations of any sort they personally
deem desirable. There are constitutionallinIitations.
B. PERSONAL APPEARANCE Is EXPRESSIVE CONDUCT: How ST~:NTS LOOK
MAY BE ALMOST As IMPORTANT As WBAT THEY SAY
that
227
In contemplating student dress and grooming, Justice Black, a literalist, commented
the record ... [is] ~alculated to leave the impressiou that this case over the length of
harr has created or IS about to create a great national "crisis." I confess my inability
to nnd~rstand how anyone would thus classifY this hair length case. The only thing
about It that borders on the serious to me is the idea that anyone should think the
Federal Constitution imposes on the United States courts the burdens of supervising
the length of hair that pnblic school students should wear.
K~rr v. Schmidt, 401 U.S. 1201, 1202-03 (1971). Other courts, most notably the Fifth CirCUit ~d the Texas state courts, have articulated similar opinions. See, e.g., Karr v.
SchmIdt, 460 F.2d 609, 611 (5th Cir. 1972) (stating that although there can be honest differences of opinion regarding whether state or federal government should, as a matter of public
pol~cy, regulate the permissible length of hair, "it would be difficult to prove by reason,
logiC, or common sense that the federal judiciary is more competent to deal with hair length
than are the local school authorities and state legislatures of all our 50 States"); TOlJJIgate,
958 S.W.2d at 373 (stating that "[o]ur [Texas] state courts should not become the arbiters of
cousti~tional challenges to hair length regulations in schools"); Barber v. Colorado Indep.
Sch. DISt., 901 S.W.2d 447,447,450 (Tex. 1995) (stating that "[i]t is a matter of common
seuse that the [Texas] state judiciary is less competent to deal with students' hair length than
a parent, school board, administrator, principal, or teacher," and accordingly "[w]e refuse
to use the Texas Constitution to micro-manage Texas high schools"); Mercer v. North For~st Indep. Sch. Dist., ~38 S.W:2d 201,206 (Tex. App. 1976, writ ref'd n.r.e.) (stating that
[c]ourt mterventlOn [m groommg and dress code cases] is simply not a suitable device with
which to enforce some tights").
228
See supra text accompanying notes 97-107.
West Virginia State Bd. of Ednc. v. Barnette, 319 U.S. 624, 637 (1943) (emphasis
added). Justice Jackson amplified this conclusion by stating that
229
[s]uch Boards [of Education] are numerous and their territorial jurisdiction often
small. Bnt small and local authority may feel less sense of respousibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account. The
ac~ion .of Congr~ss in. making flag observance voluntary and respecting the consCience of the objector m a matter so vital as raising the Army contrasts sharply with
these local regulations relatively trivial to the welfare of the nation. There are village tyrants as well as village Hampdens, but none who acts under color of law is
beyond reach of the Coustitution.
In a variety of contexts, the Supreme Court has acknowledged that some
forms of expression which mailifest themselves in the form of action or conduct
are entitled to First Amendment protection. 231 While the Court has rejected the
Id. at 637-38 (footnote omitted). Other jUrists have echoed Justice Jackson's strongly held
feeling that the operation of pnblic schools is to take place under the watchful ey~ of the JUdiciary, whose job it is to safeguard constitutional rights and freedoms of mdlvl?uals. S~e,
e.g., Bishop v. Colaw, 450 F.2d 1069, 1078 (8th Cir. 1971) (Lay, I.,concurrIng) (statmg
that hair length cases are "worthy of federal review" because "[o]ur institutions do not rely
on submerging individual personality in order tq create ~ <idealized' citizen ... ");. ~lyle v.
South Hadley Sch. Community, 861 F. Supp. 157,.-172 (D. Mass.. 1994) (descrIbmg the
court's respect for the student plaintiffs, who sought to defend thelI nght to free exp~~slOn,
the defendant school officials, who sought to harmonize plaintiffs' rights and the rIghts pf
other students, and concluding that "[t]hese teacnp-sized tempests are the workaday world of
our Bill of Rights"); Hines v. Caston Sch. Corp., 651 N.E.2d 33~, 331 (Ind. Ct. App.
1995) (noting that the purpose of constitutional law is to resolve ,conflicts be~een the ~Ights
of the individual and the interests of the cpmmunlty and that "[t]his [earr1I\g prohIbItIOn]
case iIIustrates how one such conflict may be played out upon a field': so sma~l as the ear lobe
of a ten year-old boy"). Moreover, as the Supreme Court has stated, "The. vigilant protection of constitutional freedoms is nowhere more vital than in the commumty of Amencan
schools." Shelton v. Tucker, 364 U.S. 479, 487 (1960). Finally, Jnstice Douglas astutely
observed in 1973 that "[n]othing is more indicative of the importance currently being, attached to hair growth by the general populace than the barrage of cases reaching the courts
evidencing the attempt by one segment of society officially to control the plumage of another.' Ham v. South Carolina, 409 U.S. 524, 529 (1973) (Douglas, J., concurring in part
and dissenting in part).
230 This sub-heading is derived from Dressing Like a Lawyer: Whether in a Law Office
or Courtroom, What You Wear May Be Almost As Important As What You Say: an article in
the March 1996 issue of the ABA Journal. See Paul Reidinger, Dressing Like a Lawyer:
Whether in a Law Office or Courtroom, What You Wear May Be Almost As Important As
What You Say, 82 A.B.A. I. 78 (Mar. 1996).
231 See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Bosto~,
515 US 557 567-68 (1995) (finding that marching in a parade is protected symbolIc
speech); 'Barn~s v. Glen Theatre, Inc., SOl U.S. 560, 565-66 (1991) (plurality opinion)
(finding that dancing in the nude is protected symbolIc speech); Umted States v. EIchman,
496 U.S. 310, 315 (1990) (fmding that flag burning is protected symbplIc speech); Texas v.
Johnson, 491 U.S. 397, 405-06 (1989) (finding that flag burning is protected symbolic
speech); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (concluding that sleeping in a park in connection with a demonstratIon IS symbolIc speech);
r
notion that an apparently limitless variety of conduct can be labeled
"speech, "232 the Court has been clear in pronouncing that "speech" within the
meaning of the First Amendment is not limited to the spoken or written
word.''' Which expressive activities qualify as speech and, therefore, are entitled to some protection depen4s on context.'34 Some activities seem to have
more of an expressive dimension than others. Indeed, some conduct is historically associated with speech, and the Court has had little difficulty labeling
such activities as protected symbolic speech. For example, the Supreme Court
has held that leafleting and picketing on a sidewalk on the grounds of the
United States Supreme Court building are closely linked to written and spoken
United States v. Grace, 461 U.S. 171, 176-77 (1983) (fmding tlmt peaceful picketing and
leafleting are protected symbolic speech); Schad v. Borough of Mount Ephraim, 452 U.S.
61, 65-66,.7.1 (1981) (finding that dancing in the nude is protected symbolic speech); NatIOnal Socmhst Party of Am. v. Skokie, 432 U.S. 43, 44 (1977) (finding that marching,
walking, or parading in uniforms displaying the swastika is protected symbolic speech);
Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curium) (fmding that affixing a
peace symbol to a flag is protected symbolic speech); Schacht v. United States, 398 U.S. 58,
61-62 (1970) (fmding that wearing military uniforms in a skit demonstrating opposition to
the Vietuam War effort is protected symbolic speech); Tinker v. Des Moines Indep. Sch.
Dist., 393 U.S. 503, 505 (1969) (fmding tlmt wearing black armbands to protest the Vietnam War effort is protected symbolic speech); United States v. O'Brien, 391 U.S. 367, 37677 (1968) (fmding that draft card burning is protected symbolic speech); AmalgaDJated Food
Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313 (1968) (rmding
that peaceful picketing is protected symbolic speech); Brown v. Louisiana, 383 U.S. 131,
141-42 (1966) (finding that participating in a silent sit-in and refusing to salute the flag is
symbohc speech); Barnette, 319 U.S. at 632-34 (finding that saluting the flag or refusing to
salute the flag is protected symbolic speech); Stromberg v. California, 283 U.S. 359, 369-70
(1931) (fmding that displaying a red flag is protected symbolic speech). See generally
GREENAWALT, supra note 59, at 21-25, 28-46; NIMMER, supra note 32, § 3.06, at 3-37 to 373; TRffiE, supra note 32, §§ 12-5 to 12-7, at 814-32; C. Edwin Baker, Scope of the First
Ame;uJment Freedom Of Speech, 25 UCLA L. REv. 964 (1978); John Hart Ely, Flag DesecratIOn: A Case Study in the Roles of CategOrization and Balancing in First Amendment
Analysis, 88 HARV. L. REv. 1482 (1975); Thomas Emerson, First Amendment Doctrine and
the Burger Coun, 68 CAL. L. REv. 422 (1980); Melville B. Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L. REv. 29 (1973); Laurie Magid,
Note, First Amendment Protection of Ambiguous Conduct, 84 COLUM. L. REv. 467 (1984);
Note, Symbolic Conduct, 68 COLUM. L. REv. 1091 (1968).
232
See Johnson, 491 U.S. at 404.
•
233 See !d. In Johnson, the Court empbasized that "[tlhe First Amendment literally forbIds the abndgment only of 'speech,' but we have long recoglized that its protection does
not end at the spoken or written word." Id.
See TRffiE, supra note 32, § 12-7, at 831 (stating that "[tlhe very notion of speech is
of course, incomprehensible outside a cultural and social context").
speech. 235 Demonstrations in the form of silent sit-ins similarly are intertwined
with spoken speech. 236 As Professor Tribe has observed, other activities like
political canvassing, soliciting contributions, mailbox-stuffing, picketing, demonstrating, and boycotting are all activities of special First Amendment significance, and, as such, receive First Amendment protection. 237
Other .types of activities enjoy a more tenuous connection to written and
spoken speech. Nonetheless, the Court has not failed in many situa~ons.to label such activities as speech and protect it to some degree. Dancmg ill the
nude, for example, generally, does not seem to be like spoken or written
speech; yet, the Court has held that it is a communicative activity entitled to
First Amendment protection. 238 The Court also has determined that marching
in parades,z39 burning draft cards240 and flags,24! and sleeping in parks242 constitute speech within the weaning of the First Amendment. The common
thread running through these activities, which on the surface seem to bear little
or no connection to what we typically regard as speech, is that in the contexts
in which these activities took place, the Court was able to discern elements of
communication. So long as the Court can identify an intent to convey a particular message and a likelihood that the viewer will understand the message,
the Court likely will hold that the activity in question is sYlllbolic expression
because the activity contains elements of communication. 243 At the heart of the
23S
See United States v. Grace, 461 U.S. 171, 176-77 (1983).
236
See Brown v. Louisiana, 383 U.S. 131, 141-42 (1966).
237 See TRmE, supra note 32, § 12-7, at 829-30 (listing cases in which activities such as
political canvassing, soliciting contributions, mailbox-stuffing, picketing, demonstrating, and
boycotting received First Amendment protection).
238 See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66 (1991); Schad v. Borough
of Mount Ephraim, 452 U.S. 61, 65-66 (1981).
239 See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515
U.S. 557, 568-69 (1995); National Socialist Party of Am. v. Skokie, 432 U.S. 43, 44
(1977).
2.,
See United States v. O'Brien, 391 U.S. 367, 376-77 (1968).
241 See United States v. EichnJan, 496 U.S. 310, 315 (1990); Texas v. Johnson, 491
U.S. 397, 405..Q6 (1989).
242
See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
243
See Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 410-
234
11 (1974)).
y UL. :7
Court's First Amendment opinions in this area is the Court's deeply held belief
that symbolism, though primitive, is an extremely effective way of communicating ideas because it is a "short cut from mind to mind. "244
What, then, about personal appearance? Does an individnal communicate
ideas and impressions with his or her hair style and jewelry selections? Social
scien~ists .have theorized. fo: decades tha~ an individual's choices regarding
clothmg, Jewelry, and hatr'" convey meaumgs and messages and are inextricably intertwined with social discourse. 246 Professor Ruth Rnbinstein, a sociolo-
244 West Virginia State Bd. of Educ. v. Barnelle, 319 U.S. 624, 632 (1943). In a related vern, the Cou~. has held that the First Amendment protects the emotive part of speech,
as well as the cogmtlve part. See Cohen v. California, 403 U.S. 15, 26 (1971). Cohen iuvolved ~ young man who was convicted pursuant to a br,each of the peace 'Statute prohibiting
"offensIve conduct" for wearing a jacket bearing the phrase "Fuck the Draft" in a county
courthouse hallway. Id. at 16-17. The Court recognized that expressiou is largely a mailer
of ~ersonal taste and style, and that some distasteful and offensive words are chosen as a
1
gist, has observed that most social scientists assume that an individual's clothing and outward appearance express meaning, for they accept the old adage
that a pictore is worth a thousand words; more precisely, they accept that dress
and ornameut play roles in a societ3.J communication system. 247 Naomi Wolf, a
feminist scholar, has opined that for women, their appearance is their speech.
According to Wolf, when women raise issues and speak in public on matters of
concern, "the media routinely gives accounts of women's appearance in a way
that trivializes or discredits what they say," thus reducing women's spoken
words to their personal appearance. 24' In sum, clothing, hair, jewelry, and
other aspects of personal appearance communicate visnal information about the
person and his or her opinions, mood, personality, and social and economic
statos. 24' This reality is well-known not only by scholars but also among fiction writers, playwrights, and journalists, who, relying on the communicative
function of appearance, describe a subject's appearance for purposes of outlining the subject's character.250 Moreover, adolescents and young adults are
vehicle of expression precisely for their shock value:
CLOTHES 3-36 (1981); ELIZABETH ROUSE, UNDERSTANDING FASHION 18-67 (1989); RUTH P.
RUBINSTEIN, DRESS CODES: MEANINGS AND MESSAGES IN AMERICAN CULTURE 3-15 (1995);
EMMA TARLO, CLOTHING MATTERS I (1996). Lurie has even asserted that not ouly is
[M]u~h linguistic expression serves a dual communicative function: it conveys not
ouly Ideas capable of relatively precise, detached explication, but otherwise inex-
clothing communicative, but it is also its own
pressible emoti9ns as well. In fact, words are often chosen as much'for their emotive as their cognitive force. We cannot sanction the view that the Constitution
while sol~cito.us of th~ cogni~ve conte~t of individual speech, has, little or no regard
for that emotive function WhICh, practically speaking, may often be the more important element of the overall message sought to be communicated.
tem. See, e.g., FRED DAVIS, FASHION, CULTURE, AND IDENTITY 6, 3-8 (1992) (stating that
"[t]he correspondence with language is at best metaphoric"); FINKE~TEIN, supra, at 29
(stating that clothing aud appearance "[are] not strictly speakiug a linguistic system").
~d. at. 26. Using conduct as a vehicle of expression, like emotive speech, although primitive,. IS largely a matter o~ personal taste and style and constitutes a powerful way to commumcate ?~e to the emotion generated by both the message involved and the conduct or
symbol utilIZed to convey, th~ message.. As .Justice Jackson noted in Barnette, "A person
gets from a symbol the meanmg he puts roto It, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33.
lan~age,
possessing its own grammar, vo-
cabulary, and syntax. See LURIE, supra, at 4. Some, while agreeing that appearance and
clothing create a mode of communication, caution against viewing them as a linguistic sys-
247 See RUBINSTEIN, supra note 246, at 3. Lawyers, too, understand the communicative
function of appearance, which, in th~ir professional world, can convey many messages, including authority, confidence, affluence, conformity, or individuality. See Reidinger,. supra
note 230, at 78.
248 NAOMI WOLF, THE BEAUTY MYTH: How IMAGES OF BEAUTY ARE USED AGAINST
WOMEN 275 (1991). According to Wolf, when women fmally are able to reject society's
245 Whe~ we talk about.a per~on's "dr~ss,". we typically are referring to several aspects
of the pers,on s appearance, mcludmg c1othmg, Jewelry, hair, and cosmetics. See SUSAN B.
insistence that their appearance is, their speech, women will have achieved a political step
forward. See id.
KAISER, THE SOCIAL PSYCHOLOGY OF CloTHING: SYMBOLIC APPEARANCES IN CONTEXT 3
(1997). According to Roach-Higgins and Eicher, an individual's dress "is an assemblage of
mOdi~cations of the bo.dY and/or supplements to the body .... " Mary Ellen RoachHlggms ~ Joanne B. EIcher, Dress and Identity, in DRESS AND IDENTITY 7 (Mary Ellen
Roa~h-Hlggms et aI. eds., 1995). Therefore, dress "includes a long list of possible direct
3. A person's appearance also communicates information about the person's age and sex, as
well as occupation~ origin, tastes, and sexual desires. See LURIE, supra note 246, at 3.
Even school affiliation and religion may be communicated through the media of hair, jew-
modIficatIons of the body such as coiffed hair, colored skin, pierced ears, and scented
249
See Roach-Higgins & Eicher, supra note 245, at 10-11; LURIE, supra note 246, at
br~ath, as well as an equally long list of garments, jewelry, accessories, and other categories
of Iteins added to the body as supplements." !d.
elry, and clothing. See Roach-Higgins & Eicher, supra note 245, at II. Indeed, as Mary
Ellen Roach-Higgins & Joanne B. Eicher have observed, "The list of possible meanings
communicated by type of dress is seemingly eudless." Id.
246 see, e.g., Roach-Higgins & Eicher, supra note 245, at 7-39; HAIR: ITS POWER AND
MEANING IN ASIAN CULTURES xi-xiv, 1-49 (Alf HiltebeiteI & Barbara D. Miller eds., 1998);
JOANNE FINKELSTEIN, AFTER A FASHION 29 (1996): ALISON LURIE, THE LANGUAGE OF
written:
250
See
RUBINSTEIN,
supra note .24~, at 4. In this regard, Professor Rubinstein has
well-attuned to the meanings and messages transmitted by dress and appearance. According to Professor Rubinstein, adolescents and young adults have
long recognized the usefulness of clothing "[t]o signal connectedness and to
distinguish themselves from others," and have adopted styles "that express
their particular, distinct identity. "251 In sum, their personal choices demonstrate their recognition that a particular style or mode of appearance has meaning. 252 Accordingly, any rule that requires individuals to look a certain way
[F]iction writers typically imbue a specific image of clothing with meaning. Nineteenth-century novelists, such as Balzac, FIaubert, Proust, Dickens, and Trollope,
wrote detailed descriptions of what their characters wore. For example, when FIaubert describes Madame Bovary's initial appearance in the kitchen of her father's
small farm, he wrote that she was wearing a blue merino wool dress with three
flounces. The clothing carried the message that she was fun-loving, frivolous, fashion-conscious, and Ollt of place. Playwrights also describe garments as a means of
delineating a character. Today. no newspaper reporter would write a profile of
someone without describing the person's style of dress. The implication is that a
person's clothing somehow reflects his or her character.
[d. (emphasis added). As I contemplate the central message of Professor Rubinstein's
words, I am struck by the depth of the journalistic coverage of weddings in some local,
hometown newspapers that I have read over the years. They tend to describe the appearance
of the bride and groom, particularly the bride's dress, in excruciating detail. When one
ponders why this might be the case. one concludes, as Professor Rubinstein has suggested,
that it must be because how the bride and groom look and what they have chosen to do with
their appearance on the day of their wedding communicates, at a minimum, basic informa-
tion about their mood, character, and position.
1
i
deprives them of the opportunity to defme and express themselves through their
clothing, hair, and jewelry choices.
Uniformity of appearance, however, is not without some virtue because it
can be beneficial in certain contexts. First, uniformity renders a group readily
254
recognizable,25' and signals that the group is legitimate.
The u~for~ty itself is deliberately symbolic, and its effect is to replace the indiVidual s cousciously selected dress and appearance symbols and replace them with ~~se of
the group, thus identifying and legitimizing the group instead of the mdlvldual.
Second uniformity may generate a certain esprit de corps among group mem25s
bers up'on whom the requirement of uniformity is imposed.
Thus, uniformity of appearance can be a valuable tool for groups requiring an identity and
legitimacy, including police departtnents, military and quasi-military groups,
and sports teams.
Viewed from another perspective, however, the very benefits derived from
uniformity of appearance can be quite sinister. Maoist China required ~­
formity of appearance in school children, primarily for the purpose of ellIllinating individuality and mandating only one plane of personal existence, that of
the relationship between the individual and the state.~6 The gove=eut rec-
RUBINSTEIN, supra note 246, at 214 (footnote omitted).
253 See Kelley v. Johnson, 425 U.S. 238, 248 (1976) (police department claimed that
similarity in appearance among police officers would make officers readily recognizable t.o
the public); see also LURIE, supra note 246, at 19-21 (discussing groups that wear um-
forms).
251
[d.
254
252 See id. (citing D. HEBDIGE, SUECULTURE: THE MEANING OF STYLE (1979)); see
also id. at 210-14. Music, which without question constitutes speech within the meaning of
the First Amendmeut, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981),
is another activity ¥Sed by teenagers to express themselves. In the world of teenagers, music and appearance are quite powerfully conjoined. Professor Rubinstein has explained that
the two activities are tools for self-definition and self-expression:
Music and dress offer growing adolescents a means of self-definition. One of the
basic motivations of high school students for seeking a job seems to be to acquire the
means to buy the clothes and music they want. Through them teenagers learn to
recognize particular values and specific orientations to social life, encouraging selfdefInition. These representations (clothes and music) may also act to link the young
to the adult world, a form of anticipatory socialization. As presented in a recent exhibition, five different reference groups appear to have emerged in American high
schools: preppies, greasers, jocks, freaks, and nerds. Each is identified by a welIdefmed style seen in the foods eaten, level of expected higher education, occupa~
tional goals, leisure activity, and, of course, appearance.
See RUBINSTEIN, supra note 246, at 67, 73-82 (discussing uniforms in particular).
255 See Kelley, 425 U.S. at 248 (police department claimed that similarity in appearance
among police officers promotes esprit de corps). In this regard, Professor Rubinstein has
observed that
[s)uppressing personal choices of dress, the organIzation binds the individual to his
or her peers, uilderscores common membership, and encourages a sense of loyalty
among members and faithfulness to the same rules. The uniform serves to integrate'
wearers into a cohesive unit that will act to ensure that organizational goals are attained.
RUBINSTEIN, supra note 246, at 67.
256 Professor C. Keith Boone has theorized that in a statist totalitarian society the public
sphere must eclipse the private sphere. See C. Keith Boone, Privacy an:t Community, 9
Soc. THEORY & PRAC. I, 6 (1983). In this regard, Professor Boone has wntten as follows:
ognized that the external determination of an individual's appearance forced the
individual to forfeit the right to act as an individual, or as Professor Alison Lurie has explained, "in terms of speech, to be partially or Wholly censored...257
In sum, the requirement of a specified personal appearance constitutes an assertion of authority and control over the individual, generating a need for compliance within the individual and encouraging in a heavy-handed way that the
individual express the group's interests and ideas rather than his or her own
interests and ideas. 258 By requiring uniformity of appearance, the authority imposing the requirement compels the individual to signify that all allegiances to
groups other than the authority are nonexistent or wiil be suppressed.259
Thus, it is obvious to many, from sociologists to totalitarian leaders, that
personal appearance constitutes symbolic expression or symbolic conduct.260
Individuals intend to convey meaning by their clothing, hair, and jewelry selections, and viewers receive and interpret the information conveyed as a message.
While the Supreme Court never has considered whether students' personal
appearance is symbolic conduct,261 over the years, various members of the
Essential to the development of the totalitarian society is the full expansion of the
public into the private sphere, such that no society may properly be tenned totalitarian until it has "simply liquidated the whole sphere of privacy." The reason privacy
must be eliminated is that totalitarian control hinges on the atomization of society
into fully individualized units that recognize only one plane of existence-the relationship between the state and the individual . . .. Comrtmnal relations suffer unbearable strains toward disintegration, and former community bonds generated by
geography, ethnic identity, religion, and the like deteriorate ....
[d.
25J LURIE, supra note 246, at 18. Lurie made this statement iIi the cOntext of a discussion about uniforms. but it is equally true with. respect to the broader topic of personal appearance. For a discussion of governmental efforts to control citizens by regulating personal
appearance, see Kelley, 425 U.S. at 253 n.4 (Marshall, 1., dissenting).
", See RUBINSTEIN, supra note 246, at 67.
259
See id.
260
See supra note 245-259 and accompanying text.
261 See Board of Trustees of Bastrop Indep. Sch. Dist. V. Toungate, 958 S.W.2d 365,
372 (Tex. 1997) (noting that the Supreme Court never has resolved the constitutionality of
hair length regulations in public schools); see also TRIBE, supra note 32, § 15-15, at 1388
n.32 (noting that the Supreme Court never has resolved the constitutionality of hair length
regulations in public schools). The Court has denied certiorari in many cases involving hair
Court have examined the competing concerns relevant to this issue and have
concluded that personal appearance is a form of symbolic speech. In his dissenting opinion in Kelley v. Jolmson,262 Justice Marshall, joined by Justice
Brennan, reasoned along two lines. First, Justice Marshall concluded that an
individnal's liberty interest, as protected by the Fourteenth Amendment, ell:tends to "the full range of. conduct which the individual is free to pursue," and,
further, that an individual's full range of conduct includes the individnal's interest in dressing according to his or her own taste. 263 Justice Marshall then
linked an individual's liberty interest to personal appearance and expression
when he stated:
An individual's personal appearance may reflect, sustain, and nourish his
personality and may well be used as' a means of expressing his attitude
and lifestyle. In taking control over a citizen's personal appearance, the
government forces him to sacrifice substantial elements of his integrity
and identity as well. To say that the liberty guarantee of the Fourteenth
Amendment does not encompass matters of personal appearance would
be fundamentally inconsistent with the values of pIjv,acy, self-identity,
autonomy, and personal integrity that I have always assumed t):le Con-
length regulations by schools. See Lansdale v. Tyler Junior College, 470 F.2d ~59 (5th Cir.
1972) (en bane), cert. denied, 411 U.S. 986 (1973); Freeman v. Flake, 448 F.2d 258 (10th
Cir. 1971), cert. denied, 405 U.S. 1032 (1972): King V. East Side Union High Sch. Dist.,
445 F.2d 932 (9th Cir. 1971), cen. denied sub nom. Olff v. East Side Union High Sch.
Dist., 404 U.S. 1042 (1972); Breen V. Kahl, 419 F.2d 1034 (7th Cir. 1969), cen. denied,
398 U.S. 937 (1970); Stevenson v. Board of Ednc., 426 F.2d 1154 (5th Cir.), cen. denied,
400 U.S. 957 (1970); Jackson v. Dorrier, 424 F.2d 213 (6th Cir.), cert. denied, 400 U.S.
850 (1970); Ferrell v. Dallas Indep. Sch. Dist., 392 F.2d 697 (5th Cir.), cen. denied, 393
U.S. 856 (1968).
262 425 U.S. 238 (1976). In Kelley, the majority considered a police officer's challenge
to his department's hair length regulation on the ground that it deprived him of his liperty
interest in violation of the Due Process Clause of the Fourteenth Amendment. See, itt. at
239-44. The majority assumed, without deciding, that an individual "has sOme sort of 'liberty' interest within the Fourteenth Amendment in matters of personal appearance." {d. at
244. The majority, employing a de minimus standard of review, see TRIBE, supra note 32, §
15-15, at 1387, upheld the depanmental regulation, ruling that the regulation had a rational
basis because it rendered police officers recognizable to the public and fostered esprit de
corps. See Kelley, 425 U.S. at 248. In reaching its decision, the majority emphasized that
it was considering the personal appearance of police officers and not the citizenry at large.
See id. at 245.
263
Kelley, 425 U.S. at 250 (Marshall, J., dissenting).
stitution was designed to protect. 264
After determining that an individual's liberty interest protects personal choices
related to appearance, Justice Marshall added, significantly, that governmental
regnlation of an individual's personal appearance, including attempts to control
hair length, "may in some circumstances not only deprive
[the individual]
of liberty under the Fourteenth Amendment but violate
[the individual's]
First Amendment rights as well. "265
In the second part of his analysis, Justice Marshall outlined historical evidence establishing the right of an individual to choose his or her oWn personal
appearance. 266 According to Justice Marshall, the right to choose one's personal appearance is beyond question because "its existence has simply been
taken for granted. "267 Referring to the 1789 congressional debates over which
civil liberties shonld be included in the Bill of Rights, Justice Marshall observed that Congressman Sedgwick of Massachusetts argned that it was unnecessary to include the right of assembly in the Bill of Rights because, like the
"right to wear a hat," it is a presumed right that will not be infringed npon by
government. 2G' Thus, according to Justice Marshall, while the right to choose
one's personal appearance was not included in the Bill of Rights, Congressman
Sedgwick, as well as others, clearly believed that the right existed and wonld
be protected from governmental intrusion. 269
Moreover, even the Court, according to Justice Marshall, had relied in the
past upon the presumptive right of individuals to choose clothing, hair styles,
and jewelry that are consistent with their personal tastes. Justice Marshall
noted that in Kent v. Dulles,"o the Court had relied upon the right to control
1
one's appearance to support the right to trave!.27! In Kent, the Court found that
an individual's decision to travel is as personal as the individual's decision redh
. what to eat, what to read
garding
, an
w at to wear. 272
Justice Marshall's dissent in Kelley is consistent with, and perhaps even implicitly drawn from, the majority's analysis in West Virginia State Board of
Education v. Barnette. In Barnette, determining that a flag salute or a refusal
to salute the flag constituted symbolic expression,27' the majority observed that
27
clothing can be an effective symbol for communicating certain messages. '
The majority considered the government and the church, and explained that
they speak through, among other things, "uniforms and black robes" and
"clerical raiment," respectively.275 In words, that leave no doubt as to the
Court's view, the Court concluded that "[s]ymbols of State often convey political ideas just as religious symbols come to convey the theological ones. ,,276
Similarly, Justice Douglas believed that appearance, and in particnlar ha~
length, was a highly important facet of individuality and, very likely, symbolic
expression. In a number of hair length cases, the Court denied petitions for
certiorari.27' Justice Douglas, however, dissented in three of those cases?" In
271 See Kelley, 425 U.S. at 252 (Marshall, J., dissenting). In Kent, in ,determining that
citizens have a protected liberty interest in freedom of travel and movement, the Court stated
that
[tlhe right to travel is a part of the "liber1y" of which citizens cannot he deprived
without due process of law under the Fifth Amendment ... , It may be as close to
the heart o/the individual as the choice o/what he eats, or wears, or reads.
Kent, 357 U.S. at 125-26 (emphasis added).
264 ld. at 250-51 (Marshall, J., dissenting) (footnotes and citations omitted).
265 ld. at 251 n.2 (Marshall, J., dissenting) (citing Tinker v. Des Moines Indep. Sch.
Dist., 393 U.S. 503 (1969».
on See Kent, 357 U.S. at 125-26; Kelley, 425 U.S. at 252-53 (Marshall, 1., dissenting).
273
See West Virginia Sch. Bd. ofEduc. v. Barnette, 319 U.S. 624, 632-33 (1943).
26'
See id. at 251-53 (Marshall, 1., dissenting).
274
See ill. at 632.
267
ld. at 251 (Marshall, 1., dissenting).
275
ld. According to the majority, throngh certain types of clothing, "[t]he State an-
268
ld. at 251-52 (Marshall, 1., dissenting) (citing I. BRANT, THE BILL OF RiGHTS 53-67
nounces rank:, function. and authority . . . ." ld.
(1965».
276
ld.
26' See id. at 252 (Marshall, J., dissenting). Justice Marshall added that "while [Sedgwick and his colleagues] may have regarded the right [in one's appearance] as a trifle as
long as it was honored, they clearly would not have so regarded it if it were infringed." ld.
277
See supra text accompanying note 261.
270
357 U.S. 116 (1958).
278 See Freeman v. Flake, 405 U.S. IOn (1972) (Douglas, J., dissenting); Olff v. East
Side Union High Sch. Dist., 404 U.S. 1042 (1972) (Donglas, J.. dissenting); Ferrell v.
Dallas Indep. Sch. Dist., 393 U.S. 856 (1968) (Douglas, J., dissenting).
SETON HALL CONSTITVTIONAL LAW JOURNAL
392
Vol. 9
each of these cases, the challenge to the hair length regulation was not based on
freedom of expression; nonetheless, in each case, Justice Douglas relied on a
theory of freedom of expression for registering his dissent. In Ferrell v. Dallas
Independent School District,279 for example, the constitutional challenge was
based upon the Equal Protection Clause of the Fourteenth Amendment.280 In
dissenting from the Court's denial of certiorari, however, Justice pouglas re·
lied upon principles of privacy and freedom of expression, asserting that con·
stitutional guarantees "permitted idiosyncracies to flourish, especially when
they concern the image of one's personality and his philosophy toward gov.
ernment and his fellow man."2S1 In Oljf v. East Side Union High School,2S2
279 393 U.S. 856 (1968). Accordingly, the Supreme Court never has resolved the issue
whether students' appearance in school is entitled to First Amendment protection. In Tinker,
however.. in considering the armbands worn by the students, the Court noted that "[t]he
problem posed by dIe present case does not relate to regulation of the length of skirts or the
type of clothing, to hair style, or deportment." [d. at 507-08 (citing Ferrell v. Dallas Indep.
Sch. Dist., 392 F.2d 697 (5th Cif. 1968); Pugsley v. Selbneyer, 250 S.W. 538 (Ad'1923». Some have argued dillt by this language, the Court refused to equate hair and
clolhmg wilh symbolic expression. See, e.g., l\arr v. Schmidt, 460 F.2d 609, 614 (5lh Cir.
1972); King v. East Side Union High Sch. Dist., 445 F.2d 932, 937 (9th Cir. 1971), cerl.
deniedsuhnom. Olffv. EastSide Union High Sch: Dist., 404 U.S. 1042 (1972); Jackson v.
Dorrier, 424 F.2d 213, 217 (6th Cif. 1970); Bivens v. Albuquerque Public Sch., 899 F.
Supp. 556, 560 (p.N.M. 1995); Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate, 958 S.W.2d 365, 372 (Tex. 1997); NIMMER, supra note 32, § 3.06 LE], at 3-66. This
reading of Tinker, however, is not necessarily correct. By distinguishing between the political armbands at issue and hair and clothing, the Court simply may have reserved the evaluation of hair and clothing for anolher day. See Recent Coses, supra note 32, at 1702 n.1.
Professor Tribe has posited an alternative understanding: "the statement in Tinker need imply no more than that the state must meet an even stricter burden of justification when political speech is at stake." TRIBE, supra note 32, § 15-15, at '1384 n.1. In any event, in Ferrell, lhe case cited by lhe Court in Tinker, lhe Fifth Circuit assutned wilhout deciding lhat "a
hair style is a constitutionally protected mode of expression." Ferrell, 392 F.2d at 702.
280
See Ferrell, 393 U.S. at 856 (pouglas, J., dissenting).
281
[d. (emphasis added). Even lhough lhe challenge in Ferrell was based upon lhe
Equal Protection Clause, Justice Douglas' reference to freedom of expression Was not inadvertent:
T
DRESS CODES AND FREEDOM OF EXPRESSION
1999
Justice Douglas also dissented from the Court's denial of certiorari, voicing his
concern "that under our federalism a State can deny a student education in its
public school system unless his hair style comports with the standards of the
school board. "283 Reasoning that one's hair style, like one's tastes in food,
music, art, and recreation, are fundamental in our constitutional scheme,284
Justice Douglas concluded that hair style is a personal choice which shonld be
left to the individual or the family.285 Thus, Justice Douglas concluded that
high school students have a liberty interest in choosing their hair style, and,
further, that any authoritarian philosophy favoring regimentation should be
struck down,2" for '''[w]hether hair styles be regarded as evidence of conformity or of individuality, they are one of the most visible examples of personality.'''287 Finally, in Freeman v. Flake'>" which involved a challenge to a
school's hair length regulation on the basis of the First and Ninth Amendments,
Justice Douglas, dissenting from the court's denial of certiorari, stated that the
Court should decide the hair length issue because it has such "importance
bearing on First Amendment and Ninth Amendment rights. ,,289 Like Justice
282
404 U.S. 1042 (1972).
28' [d. at 1042 (pouglas, 1., dissenting). Justice Douglas raised the following question:
if public schools, like some institutions in Asia, required enrollees to shave their heads,
would lhe Court sustain lhe regulation?· See itt.
284
See id. at 1044 (Douglas, 1., dissenting).
285 See id. at 1043 (pouglas, 1., dissenting) (citing Meyer v. State of Nebraska, 262
U.S. 390 (1923»). Justice Harlan once noted lhat if Meyer and Pierce.were decided today,
lhey would be decided on lhe basis of the First Amendment. See Poe v. Ulbnan, 367 U.S.
497,543-44 (1961) (Harlan, J., dissenting).
286
See O/ff, 404 U.S. at 1043 (pouglas, 1., dissenting).
287 [d. at 1044 n.2 (pouglas, 1., dissenting) (citation omitted). In lhis regard, Justice
Douglas noted lhat "Sampson's locks symbolically signified his virility." [d.
'88 405 U.S. 1032 (1972).
I suppose that a nation bent on turning out robots might insist that every male have a
crew cut and every female wear pigtails. But the ideas of "life, liberty and lhe pursuit of happiness," expressed in the Declaration of Independence, later found specific
defmition in the Constitution itself, including of course freedom of expression and a
wide zone of privacy.
[d.
289 [d. at 1032 (pouglas, J., dissenting). In addition to seeking resolution of lhe issue
because of the constitutional rights involved, as he had done in O/ff, see 404 U.S. at 1045-46
(Douglas, 1., dissenting), Justice Douglas urged lhe Court to resolve lhe hair length controversy because of the split in opinion among the federal circuits. See Freeman, 405 U.S. at
1032 (pouglas, 1., dissenting); see also O/ff, 404 U.S. at 1045-46 (pouglas, 1., dissenting).
In 1973 Justice Douglas elabor~ted on his understanding of the conununicative function of
halr when he explained lhat
Marshall and Justice Brennan,290 Justice Douglas recognized that personal appearance is expressive in nature. 291
Several of the federal circuit courts of appeal also have indicated that
clothing, ~' and je~e~ choices convey information and, thus, may constitute symbolIc expressIOn. 92 The Seventh Circuit, for example, has determined
t a stu~ent's right to choose hair style and length is protected by the Constitution, eIther by the penumbras of the First Amendment or by the Ninth
tru:
[t]he prejudices invoked by the mere sight of non-conventional hair growth are
deeply fell. Hair growth is symbolic 10 many of rebellion against traditional society
and dIsapproval of the way enrrent power structure handles social problems. Taken
as an afftrmatIve declaration of an individual's, commitment to a change· in social
values, nonconventionaI hair growth tnay become a very ~eal personal threat to those
~ho snpport a:e status. quo. For those people, nonconventional hair growth symbolIZes an undesIrable lIfe-style, characterIZed by unreliability, dishonesty, lack of
moral values, communal ("communist") tendencies, and the assumption of drug use.
Han: v. South Carolina, 409 U.S. 524, 530 (1973) (Douglas, J., concurring in part and dissentmg m part).
290
See supra text accompanying notes 262-272.
r
!
Amendment. 293 The First Circuit also has "recogniz[ed] that there may be an
element of expression and speech involved in one's choice of hair length and
style, if only the expression of disdain for conventionality. "294 Finally, the
Fourth Circuit explicitly has stated thathair length may be symbolic speech. 295
That an individual's clothing, hair style, andjewelry choices co=unicate,
at a minimum, disdain for conventionality is a well-established principle in the
social sciences. 296 Social scientists also have recognized that personal appearance co=unicates other information as well, including an individuals' age,
sex, occupation, origin, tastes, sexual desires, mood, opinions, personality,
and social economic stams. 297 The process pursuant to which an individual selects clothing, hair length and styles, and jewelry is a deliberate, conscious
one, although at times, the process may be more subtle and less deliberate. 298
Nonetheless an individual seeks to co=uuicate through his or her persoual
appearance, ' and, without a doubt, the viewer rec~ives the information and interprets it. From the mid-1960's to the mid-1970's, some members of the Supreme Court and some lower courts recognized this basic principle of the social
sciences. Therefore, as we revisit the issue regarding students' rights in their
personal appearance in today's schools, there is ample sociological and legal
authority with which to conclude that students' personal appearance is symbolic
expression because it contains elements of co=unication.
C. THE Two-TffiRED ANALYTIC MODEL COMPRISED OF TINKER AND O'BRIEN
29' S
.
D.me commenta:ors have agr~ed that personal appearance-consisting of clothing,
haIr, and Jewelry-consotutes symbolIc expression. See NIMMER, supra note 32, § 3.06
[E][2l, ~t 3-67, 3-70 to 3-71 (stating that hair and clothing fall within the ambit of symbolic
expresSIon). Professor Trtbe has voiced his opinion in the following way:
Th~ freedom to shape one's personality through appearance is at least as important
durmg the psychologically formative years of youth and adolescence as during adulthood. Indeed, It could be argued that such freedom is even more fundamental for
the young: after all, they will have ample opportunity to experience the joys of conformity-and to reap its rewards-after they come of age.
TRIBE, supra note 32, § 15-15, at 1388-89; see also Recent Cases, supra note 32 at 1707-
W.
'
"2 See Massie v. Henry, 455 F.2d 779, 783 (4th Cir. 1972); Richards v. Thurston, 424
F.2d 1281, 1283 (1st Cir. 1970); Breen v. KallI, 419 F.2d W34, W36 (7th Cir. 1969), cert.
demed, 398 U.S. 937 (1970). But see Karr v. Schntidt, 460 F.2d 609, 613-14 (5thCir.) (en
bane), cert. denied, 409 U.S. 989 (1972); Bishop v. Colaw, 450 F.2d 1069, W74 (8th Cir.
1971); Freeman v. Flake, 448 F.2d 258, 260-61 (Wd, Cir. 1971), cen. denied, 405 U.S.
W32 (1972); King v. East Side Union High Sch. Dist., 445 F.2d 932, 937 (9th Cir. 1971),
cen. demed sub nom. Olffv. East Side Union High Sch. Dist., 404 U.S. W42 (1972); Jackson v. Domer, 424 F.2d 213,217 (6th Cir.), cen. denied, 400 U.S. 840 (1970).
Symbolic expression, because of its co=unicative element, is a constitutionally significant category of speech that triggers First Amendment protection. 299 Accordingly, when a studeJ;1t challenges a school's hair length regula293
See Breen, 419 F.2d at W36.
2..
Richards, 424 F.2d at 1283.
"5 See Massie, 455 F.2d at 783. In Massie, the court examined the plaintiffs' challenge to the school's hair length regulation under the due process rubric because the record
failed to establish that the plaintiffs had chosen their hair length for any reasons other than
personal preferen~e. See i~.
2%
See supra uotes 246-260.
29'
See supra notes 246-260.
298
See Recent Cases. supra note 32, at 1708.
2" See Texas v. Johnson, 491 U.S. 397, 403 (1989); United States v. O'Brien, 391
U.S. 367, 376 (1968).
T
tion or earring prohibition, the student typically seeks to invoke First Amendment protection for this constitutionally significant category of speech. In the
setting of the nation's public high, junior (or middle), and elementary schools,
the appropriate standard of review in cases involving symbolic expression is
not entirely clear.
In the case of schools and their efforts to regulate students, the Court's educational jurisprudence establishes several analytic models for eValuating challenges to these efforts.'oo First, if the student's speech is lewd and vulgar, the
Court in Fraser established that the school is free to regulate the speech without
showing the likelihood of any disruption or interference with the school's work
or the ability of other students to be let alone.'Ol Second, if the speech in
question is school-sponsored, the Court in Hazelwood established that the
school may restrict the expression so long as the restriction is reasonably related to legitimate pedagogical concerns. 302 The Fraser and Hazelwood analytic models, however, are unworkable when the issue involves symbolic expression, for symbolic expression in schools need not be lewd and vulgar or
school-sponsored.
The standard of review established in Tinker provides a partial answer regarding whether students' hair styles and jewelry choices are protected symbolic expression. In Tinker, the school forbade students from wearing black
armbands precisely because the students sought to symbolize their opposition to
the Vietnam War. 303 The Court held that the regulation violated the students'
First Amendment right to engage in symbolic expression because there was no
evidence of the students' "interference, actual or nascent, with the school's
work or of collision with the rights of other students to be secure and to be let
alone. "304 Thus, in Tinker, the Court made clear that when the school's regulation is aitned at the expressive component of the students' symbolic expression, the Tinker material and substantial disruption test should be the appropriate standard.30s
When a school regulates hair length or prohibits earrings for the purpose of
300
See supra text accompanying notes 77-198.
30J
See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986).
302
See Hazelwood Sch. Dist. v. KuWmeier, 484 U.S. 260, 272-73 (1988).
303
See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 504 (1969).
304
[d. at 508. The Court noted that the armbands, while symbolic, were closely akin
to pure speech. See id.
305
See GREENAWALT, supra note 59, at 24.
I
inculcating good taste, or simply because the administration or school board
prefers male students to refrain from wearing long hair or earrings, the
school's regulation is directed at the expressive component of personal appearance, As such, a First Amendment challenge to the regulation should trigger
application of the Tinker material and substantial disruption test. This test is a
demanding one, and requires the school to demonstrate facts that "might reasonably have led school authorities to forecast substantial disruption or material
interference with school activities. "",. In this age, it is uulikely that long hair
or an earring on a male student would disrupt any school activity or interfere
with the work of other students .'07
Tinker is only a partial answer regarding how to analyze symbolic expression claitns in public schools because schools may assert that hair length regulations or earring prohibitions are not directed at the communicative element of
the students' symbolic expression. For example, a school might prohibit earrings during physical education classes for the purpose of preventing injury. In
such a case, Tinker would be inapposite because this kind of regulation, unlike
the regulation in Tinker, forbids an act for a reason unrelated to the fact that
wearing earrings and other jewelry is expressive and communicates information. Therefore, when a school's regulation is unrelated to the expressive
component of symbolic speech, the appropriate standard is not the Tinker material and substantial disruption test. Rather, the appropriate test is the one fIrst
anl10unced by the Court in United States v. O'Brien.'o,
While the 0 'Brien standard is less stringent than the Tinker standard,309 it
nonetheless requires schools to articulate some justiflcation for regulating the
nonspeech element of symbolic expression, such as personal appearance. The
Court in 0 'Brien established a four-pronged analysis: fIrst, the regulation must
306 Tznker, 393 U.S. at 514. The school lost in Tinker because it failed to establish record evidence demonstrating that the armbands were likely to disrupt or interfere with school
activities. See id.
307 See Recent Cases, supra note 32, at 1715-16 (stating that "[w]hat is disturbing is the
inescapable feeling that long hair is simply not a 'source of significant distraction" and that if
hair length regulations were lifted "long hair would probably cease to be even a novelty").
308 See Texas v. Johnson, 491 U.S. 397, 403 (1989); United States v. O'Brien, 391
U.S. 367, 376-77 (1968); Breen v. KahJ, 419 F.2d 1034, 1036 (7th Cir. 1969), cert. denied,
398 U.S. 937 (1970). See generaiiy GREENAWALT, supra note 59, at 22-24; NIMMER, supra
note 32, § 3.06[E], at 3-65 to 3-72; Comment, supra note 32, at 714-17.
309 See Johnson, 491 U.S. at 403: GREENAWALT, supra note 59, at 23. As the Court
explained in Johnson, "[t]he government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word." Johnson, 491 U.S. at 406
(citations omitted).
1
be within the constitutional power of the gove=ent; second, the regnlation
must furth~r an important or substantial gove=ental interest; third, the gove=ental lllterest must be unrelated to the suppression of free expression; and
fourth, the incidental restriction on alleged First Amendment freedoms must be
no greater than is essential to the furtherance of the gove=ental interest. 310
The key to the O'Brien analysis is determining whether the gove=ent has articulated an interest in support of its regulation that is unrelated to the suppression of expression. 311
The O'Brien test is the appropriate standard for assessing a school's claim
that its hair length regulation or earring prohibition was promulgated to promote some legitimate interest unrelated to the expressive component of the students' personal appearance. Determining a school's motive, however, like determining the motive of any actor, is not without some difficulty. In O'Brien,
for example, notwithstanding substantial evidence that Congress had passed the
statute prohibiting the destrnction of draft cards for the express purpose of preventing the bnrning of cards to protest the Vietnam war, the Court found that
the purpose of the legislation was unrelated to the expressive component of
draft card bnrning. 312 On the other hand, in Johnson, the Court had little difficulty seeing through the pretextnal interests proffered by the state, and concluded that the flag desecration statnte was promulgated to suppress the constitntionally protected symbolism of flag bnrning. 313 As Professor Greenawalt has
explained, the Court in Johnson "had little problem concluding that the state's
asserted reasons for prohibiting flag desecration-to avoid violence and preserve the flag as a symbol of nationhood and national unity-failed to meet 'the
most exacting scrutiny' as constitutional justifications for prohibiting acts of
flag bnrning. "314 Determining motive is possible, therefore, when it is done in
a forthright manner. Application of O'Brien in the school setting will trigger
exacting scrutiny, requiring. schools to articulate clearly their reason for the
hair length regulations or the earring prohibitions and why that reason is unre-
310
See O'Brien, 391 U.S. at 377.
311 See Johnson, 491 U.S. at 407 (stating that "[i]n order to decide whether O'Brien's
test applies here [in this flag desecration case], ... we must decide whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of
expression").
312 See O'Brien, 391 U.S. at 377-80; see also GREENAWALT, supra note 59, at 22-23
(discussing the Court's willingness to ignore the real motivation of Congress).
313
See GREENAWALT, supra note 59. at 24.
314
Id.
lated to the communicative element of students' hair and jewelry choices. In
some instances, the reviewing court may be called upon to look beyond what
the school is claiming to find the true motive behind the school regulation or
prohibition.
In sum, the application of either Tinker, in the case of school regulations
aimed at the expressive component of student appearance, or 0 'Brien, in the
case of school regnlations aimed at the nonexpressive component of student appearance, puts schools to a real test. School authorities may have the best of
intentions in regnlating hair length and prohibiting earrings on male stndents,
but their good intentions will not withstand scrutiny under either the Tinker or
'Brien standards. To survive constitntional challenges, schools must articulate valid reasons for their regulations and establish either that long hair or earrings will be disruptive or, in the alternative, that the regulation is unrelated to
the expressive component of personal appearance and serves a substantial gove=ental interest. Given what one suspects is the real reason for such regulations in tOday's schools, that school officials dislike earrings or long hair on
male students, hair length regnlations and earring prohibitions likely will not
withstand constitntional scrutiny under the two-tiered analytic model comprised
of Tinker and O'Brien.
o
IV. CONCLUSION
As the Supreme Court and educational theorists have observed on many occasions, public schools are important places because our society rests for its
continuance upon the growth of children into well-developed and selfactualizing adults. While families have a primary role in ensuring the wellrounded growth of young people, schools play an important secondary role,
and at times, in this postmodern world, perhaps even a primary role for those
young people whose family life has disintegrated to the point that it is essentially nonexistent. It is imperative, therefore, that public schools teach students
the shared values of our society and instill in them .such virtues as honesty, integrity, humility, and kindness. Public schools are not and should not be
value-neutral.
In teaching children how to be good people, however, public schools must
avoid orthodoxy and indoctrination. While stndents may be less developed
than adults and lack capacity for autonomous decision-making, thus making
values inculcation a necessary component of the educational process, for the
same reason, indoctrination must be avoided. Children must learn that they
have rights, as do other individuals, that are important and should be cherished. When schools indoctrinate, they often infringe upon the cherished individnal freedoms of students. Unfortunately, this infringement sends an impermissible message to children who are in the process of learning about our
democratic system, namely, that some individual freedoms are not as important
as their teachers have suggested in their history aud government classes.
Schools go too far in their socialization efforts when, in reaction to the
negative aspects of the postmodern world, they regulate the hair length of male
students and prohibit male students from wearing earrings. Because personal
appearance is symbolic expression, a form of speech, schools may violate students' First Amendment rights when they restrict students' hair and jewelry
choices. The Supreme Court has not yet established a mode of analysis for
considering challenges to hair length regulations and earring prohibitions, and
the federal courts are in disagreement. Therefore, an appropriate analytic
model is necessary. The model that is most consistent with the Court's free
speech jurisprudence requires application of the Tinker material and SUbstantial
disruption test when the school's regulation is directed at the expressive component of the student's personal appearance, and application of the fourpronged analysis in 0 'Brien when the school can demonstrate that its regulation
is unrelated to the expressive component of the student's personal appearance.
In either case, the school mnst articulate a valid reason for the regulation, and
uniformity for uniformity's sake will not constitute a sufficient constitutional
justification. In sum, schools should proceed cautiously in developing their
rules and regulations pertaining to student appearance and take every preca\ltion to ensure that their rules and regulations are the result of meaningful dialogue and rational deliberation.