Monday, May 03, 1999
Rules on students hold up in court
Trend has been to enforce codes
BY BEN L. KAUFMAN and DANA DiFILIPPO
The Cincinnati Enquirer
After two seniors in black trench coats killed 12 classmates and a teacher in Littleton, Colo., Principal Chuck LaFata of Loveland High School decided it was time to remind parents of an old policy.
So the Loveland High School principal sent a note home with each of his 1,050 students April 22 telling parents about the dress code — with a specific notation that it banned all coats in classrooms.
“It's been on the books for a long time, and not many kids wear coats in school, but we just want to make sure it's enforced,” Mr. LaFata said.
Federal judges have been making such regulations easier for schools to enforce in recent years as they edge away from a 1969 Supreme Court decision that freed public school student expression in word and garb, University of Cincinnati law professor Rona Greff Schneider said last week.
“If anything, courts appear to be more receptive to arguments that the schools present,” she said.
Within reason
That does not, however, allow administrators to ban any clothing or messages they find distasteful.
“The key to this is that schools proceed reasonably,” added R. Gary Winters, a lawyer who has represented various Tristate school districts.
For instance, Mr. Winters said, Columbine High School in Littletoncould have banned black raincoats worn by disaffected students linked to the April 20 massacre.
Or it could have taken Loveland's approach — banning all coats from classrooms, Mr. Winters said.
Even if Columbine's Trench Coat Mafia fought back, saying the ban was an unconstitutional infringement on their expressive speech, the dress code would hold up, Mr. Winters added. “I think I could win that case.”
Maybe not, said Scott Greenwood, an American Civil Liberties Union lawyer. He said educators can ban garments that are disruptive or promote violence, but not simply on the assumption that people who wear black trench coats or anything else will commit massacres.
Thirty years ago, defending a dress could might have been tougher.
The U.S. Supreme Court sided with students wearing anti-war black armbands.
“That was expressive speech, silent and not disruptive,” Mr. Winters recalled. “It was pretty close to pure speech.”
With that in mind, the justices said educators had to show a high likelihood of a “material and substantial disruption” before they could impose dress codes that infringed on student expression.
Increasingly conservative justices, however, have lowered that requirement.
"Legitimate concern'
In such situations, Ms. Schneider said, officials must only show a “legitimate pedagogical concern” to ban objectionable statements that are school-sponsored.
The court, she added, said it left the earlier armband decision intact insofar as the speech was not school-sponsored.
Proving that might be a problem, she continued. Educators must prove more than “mere concern” about trouble-making potential, but they need not wait for a riot.
Further complicating the lives of administrators and teachers is the absence of agreement among the federal courts that apply Supreme Court decisions, Ms. Schneider said.
Where dress codes collide with student rights, cases tend to follow familiar lines.
• Opponents say clothing and written or symbolic messages are protected by First Amendment guarantees of free speech and association.
Dress code advocates say sexually provocative garments, gang-related garments and symbols, hate messages, commercials for drugs, tobacco and alcohol and obscenities can be banned because they interfere with learning or invite disruption.
• Students have a 14th Amendment liberty interest in how they express their individuality, especially away from school.
Advocates say conformity is not too high a price to pay for education.
• Limitations on the attire or grooming of one sex but not the other can be attacked as a violation of the 14th Amendment guarantee of equal protection.
Some schools require boys — but not girls — to cut their hair short or ban boys from wearing earrings.
Educators say some distinctions make sense and avoid disruption.
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