Student Appearance (School Law Cases and Concepts, p. 174 -185) Michelle Duke MED 6490 February 2, 2010

Challenges to dress and grooming began in the 1960s, with a markedly reduced number of suits in more recent times.

In recent cases, school officials frequently contend that dress and grooming violations are gang related and, therefore, pose a serious threat to safety in the school May violate the First Amendment and include gender and racial discrimination Courts must balance the First Amendment rights of students to express themselves against the legitimate right of school authorities to maintain a safe and disruption-free environment.

Courts generally contend that such “expression” does not have protection under the First Amendment when there is violence in the community or school such as intimidation of students and faculty, shootings or knifings, rampant drug use, or racial turmoil that is related to gang or hate-group activity. A policy prohibiting the wearing or display of any gang symbol, any act of speech showing gang affiliation, and any conduct in furtherance of gang activity was also upheld by a federal district court.

Olsen v. Board of Education, 676 F.Supp. 820 (Ill. 1987) The wearing of earrings by males was not protected under the First Amendment, since that could be an indication of gang membership for boys Hines v. Caston School Corporation, 651 N.E. 2d 330 (Ind. App.1995) Although not involving the issue of gang membership, a 4th grade male was prohibited from wearing an earring

for nonverbal conduct to be Protected Under the First Amendment: Bivens v. Albuquerque Public Schools, 899 F.Supp.556 (N.M. 1995), aff’d, 131 F.3d 151 (10th Cir. 1997) Two-Part Test for nonverbal conduct to be Protected Under the First Amendment: Intent to convey a particular message A great likelihood that the message will be understood by those who observe the conduct In response to a gang problem, a dress code was adopted that prohibited the wearing of “sagging” pants. A black student who was suspended for wearing such pants allege that his First Amendment rights of speech, expression, and association were violated because this attire is part of a style known as “hip hop,” whose roots are African American. IN rejecting the student’s contention, The Court has established a 2-Part Test for nonverbal conduct to be Protected Under the First Amendment … In this case, the court declared that THE SECOND PART OF THE TEST HAD NOT BEEN MET. SINCE OTHERS WOULD NOT LIKELY RECOGNIE THE PANTS AS A REFLECTION OF HIS AFRICAN AMERICAN HERITAGE, HIS RIGHTS WERE NOT VIOLATED AND HE WAS NOT ALLOWED TO WEAR THEM.

Phillips v. Anderson County School District, 987 F. Supp. 488 (S. C ~ not being allowed to wear a Confederate flag jacket to school was upheld as not violating a student’s freedom of expression The Court based its decision on prior incidents of racial tension and unrest and reasoned that the wearing of such a jacket would likely result in substantial disruption of the school’s environment.

~ A “no hats” policy was upheld when a girl was Isaacs ex.rel. Isaacs v. Board of Education of Howard County, 40 F.Supp.2d 335 (Md. 1999) ~ A “no hats” policy was upheld when a girl was not allowed to wear a headwrap in celebration of her African American and Jamaican cultural heritage School rules DID make exceptions for religious headgear such a yarmulkes and Muslin hijab, including headscarves.

Harper v. Edgewood Board of Education, 655 F.Supp.1353 (Ohio 1987) ~ Students were not permitted to attend a high school prom because they were wearing clothing of the opposite sex The Court said their First Amendment rights were not violated, since the dress regulations were reasonably related to the valid educational purposes of teaching community values and maintaining school discipline.

Fowler v. Williamson, 251 S.E. 2d 889 (N.C. Ct. App. 1979) A dress regulation requiring proper attire to participate in a graduation ceremony was upheld The student was entitled to receive his diploma separately after the program

School Uniforms Requiring the wearing of uniforms is common in private and parochial schools, and is increasingly being adopted by public schools across the country Courts have generally upheld mandatory school uniform policies Littlefield v. Forney Independent School District, 268 F.3d 275 (5th Cir. 2001) United States v. O’Brien, 391 U.S. 367 (1968)

Grooming Federal appellate courts in the 5th, 6th, 9th, & 10th Circuits either upheld grooming regulations or contended that grooming regulations were unworthy of their attention. IN CONTRAST, the 1st, 3rd, 4th, 7th, and 8th Circuits found regulations limiting the length of hair valid. State courts in Oklahoma, Oregon, and Alaska have held that schools do NOT have the authority to regulate hairstyles. HOWEVER, Supreme Courts in Texas, Missouri, and Kansas have not held similarly. What was once frowned upon is now commonplace….. There are a host of cases on p.182 in the text.

Pregnancy, Parenthood, and Marriage Enactment of Title IX of the Education Amendments of 1972 addressed the issue on the basis of prohibiting gender discrimination in any educational programs receiving federal funds. Many years ago, public school policies often excluded students who were married or pregnant or who were parents. This wwas meant to be a deterrent -- an early form of birth control or planned parenthood, if you will. Successfully attacked in the courts, since the practices applied disproportionately to females.

Pfeiffer v. Marion Center Area School District, 917 F. 2d 779 (3rd Cir Pregnant student NOT allowed in NHS + Chipman v. Grant County School District, 30 F. Supp. 2d 975 (Ky.1998) - Pregnant students WERE allowed in NHS In an alleged Title IX violation, a federal court of appeals addressed a female student’s dismissal from a chapter of the N.H.S. because of her pregnancy HOWEVER Chipman v. Grant granted an injunction compelling a school to admit to an honor society two unmarried female students who became pregnant and had children. The court in this case applied the Pregnancy Discrimination Act (see Appendix D in the text)

Issue Does a double standard continue to exist that brands sexually active girls but not their male partners?

Pregnancy Discrimination Act of 1978 Legal Doctrine Pregnancy Discrimination Act of 1978 P.L. 95-555,42 U.S.C. 2000E Prohibits sex discrimination on the basis of pregnancy