The federal judiciary does many things well. Writing high school dress codes is not one of them.
That is the lesson of the past 46 years, during which the Supreme Court and judges on the lower federal courts have tried to articulate a consistent standard of free-speech protection for minor students’ choices in T-shirts, belt buckles, bandannas and lapel pins.
In a 1969 case, Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that high school students had a First Amendment right to wear black armbands to class in protest of the Vietnam War. Administrators couldn’t suspend them without demonstrating that the display would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”
Lawsuit upon conflict upon testy school board meeting has ensued, as administrators, pupils and parents have fought over the meaning of “material,” “substantial” and “appropriate,” given the dizzyingly diverse circumstances prevailing at public schools from coast to coast.
Just last week, Christiansburg High School in southwestern Virginia suspended 23 young people for showing up at school decked out in Confederate battle flag T-shirts and other regalia, in violation of a school policy against clothing that might “reflect adversely on persons due to race,” including, specifically, by displaying Confederate battle flag symbols.
Administrators almost certainly acted consistently with existing constitutional doctrine in repressing this ostensible assertion of Southern pride, given the history of fights between whites and blacks that had been provoked by Confederate displays.
But this simply shows that Tinker’s exception for disciplinary necessity, which the justices intended to be limited, has swallowed much of Tinker’s rule protecting student expression, which the court intended to be permissive.
Students “may not be confined to the expression of those sentiments that are officially approved,” the court announced in 1969. In a throwaway line, the justices even seemed to treat the “Iron Cross, traditionally a symbol of Nazism” — which other students in Des Moines had worn without fear of suspension — as equivalent, for First Amendment purposes, to the antiwar armbands.
By 2015, however, the Supreme Court was standing aside and letting a California high school ban American flag T-shirts in the name of order under certain circumstances — to wit, non-Hispanic whites were assertively wearing the stars and stripes on Cinco de Mayo at a school where they and Mexican Americans had fought.
Here and there, public school students have been disciplined for wearing shirts proclaiming “Marriage is so Gay,” but also for wearing shirts proclaiming “Be Happy Not Gay.” In Bangor, Pa., students wore Chick-fil-A shirts in silent protest on the day of a Gay-Straight Alliance event, which led to the suspension of 10 students — for posting bullying messages on Twitter against the Chick-fil-A kids.
All over the country, schools invoke the “disruptive” potential of this or that student garb or display as a reason to ban it. Sometimes their judgment seems solid, as in the explosive Christiansburg case. Sometimes, as when an Alaska school punished a student for unfurling a “Bong Hits 4 Jesus” banner, officials seem to be engaging in exactly what the court in 1969 purported to be preventing: censorship based on “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Yet in 2007, the court upheld the ban on “Bong Hits 4 Jesus,” citing the need to maintain a consistent anti-drug message in schools.
Either way, by putting so much emphasis on the disruptive, even violent, potential reaction to speech, the Tinker doctrine has evolved into a “heckler’s veto.” The court usually disfavors that in adult contexts, for good reasons, but apparently strikes a different balance when kids are involved.
In short, Tinker has generated a lot of conflict, confusion and litigation without really securing that much more student freedom. High school students arguably have the worst of all worlds: Dress codes are strictly enforced but also constantly in flux.
Alas, the Supreme Court probably can’t give up on Tinker, which is by now established precedent.
The schools themselves could solve the problem, however. There would have been no problem at Christiansburg, or any of the other recent free-speech-vs.-the-dress-code battlegrounds, if students had been required to wear uniforms, as are students at 12.2 percent of the nation’s public secondary schools (grades seven through 12), according to the Education Department. The only issue would have been the deviation from a sartorial norm, not the particular nature of it.
Obviously, this would definitively elevate conformity and discipline over self-expression, but there would still be plenty of other ways for students to make their political and other views known at school. Remember, even under existing law we don’t allow minors adult-equivalent freedoms while in school.
Unlike today’s unworkable constitutionalized dress codes, a uniform is a clear, coherent rule, easy to follow and to enforce. My favorite kind.