“It can hardly be argued that either students or teachers shed their rights at the schoolhouse gate… In our system, state-operated schools may not be the enclaves of totalitarianism. School officials do not possess absolute authority over their students….”

With these words, US Supreme Court Justice Abe Fortas gave students the right to freedom of speech in the landmark case of Tinker v. Des Moines Independent Community School District decided in 1969.

The Supreme Court didn’t consider this right absolute and said that expression could be limited if it constitutes a foreseeable substantial disruption or material interference with school activities. But overall, it established the principle that a student’s appearance falls under First Amendment protection.

The Tinker case involved students who wore black armbands to protest the Vietnam war, but even today has been cited in cases involving student hair color, piercings, and tattoos.

It is this case, as well as many others, that has been proven an excellent weapon in the fight against oppressive school dress policies. Facts, knowledge of the law, and the threat of monetary damages are all part of the arsenal. (Honor Roll also helps.) If you’re going to do battle, either for yourself, on behalf of your child or even as a concerned citizen, educate yourself first.

Arm Yourself with the Facts

• In the US, the State, not the feds, regulate school dress codes and uniforms.
• So far, no state legislature has mandated its public schools to set out dress codes or uniforms, although many states have enacted legislation that addresses the issue.
• Local school boards are often the bodies that decide on what is appropriate dress in school and then have the schools themselves enforce their codes.
• School board officials are mainly elected. People who share your ideology can be voted in. Those who oppose can be voted out.
• Many school board officials throughout the country have cited that uniforms and strict dress codes are used to combat crime and disciplinary problems in schools.
• However, requiring students to wear uniforms has had no direct effect on drug abuse, behavioral problems or school attendance, according to a 1998 study entitled “The Effects of Student Uniforms on Attendance, Behavioral Problems, Substance Abuse, and Academic Achievement” published in The Journal of Educational Research.
• The study went on to say: “Students wearing uniforms did not appear to have any significantly different academic preparedness, proschool attitudes, or peer group structures with proschool attitudes than other students.” In other words, uniforms do not lead to good behavior.

Make Sure the Law Is Behind You

Knowing the basic facts about dress codes and uniforms is only your first line of attack. If you or your child is threatened with suspension or dismissal because of appearance, find support in the law. Cries for fairness and the need for students to express themselves make for great protest slogans, but law suits often get better results. It may not be pretty, but it’s the American way.

Some student challenges to dress codes have met with great success and others left the students expelled with no further recourse but to change schools. There are no easy ways to predict how courts may rule either. For instance, the courts have ruled differently for different body modifications and have often hinged on just certain facts.

Tattoos

A good example of how courts have dealt with dress codes and tattoos is Stephenson v. Davenport Community School District decided in 1997. The case involved a high school honor roll student, Brianna Stephenson, who self-poked a small cross tattoo on her hand two years before school administrators took notice of it. The school had enacted a new code that said “gang-related activities such as display of ‘colors’, symbols, signs, etc. will not be tolerated on school grounds.” They deemed Brianna’s tattoo to be a gang symbol, which she denied. Nevertheless, the school set a deadline for Brianna to remove the tattoo or face disciplinary action. Brianna complied and underwent painful and expensive laser treatments that burned off layers of skin on her hand and left a scar.

When Brianna returned to school, she sued the school district for monetary damages claiming that the district violated her First Amendment rights by forcing her to remove the tattoo. The United States District Court dismissed her case, but the U.S. Court of Appeals for the Eighth Circuit granted her appeal.

The Eighth Circuit found in favor of Brianna and ruled that the school district’s policy was unconstitutional because it was too vague. According to the Court, the policy did not give students enough information about exactly what kind of conduct and expression was prohibited. The vague regulation also allowed for arbitrary or discriminatory enforcement. The school could find the tattoo cross on Brianna to be a threat while on another student they could deem it a sign of devout faith.

After the school district paid out, they changed the policy. But it was not a great victory for tattooed students. If the policy was not vague and was clear on what forms of expression were banned, would Brianna still have won? It is unclear, although some legal scholars say yes, particularly after recent rulings in Massachusetts and South Carolina deeming tattoo art as an accepted form of symbolic speech. In the October 2000 case that struck down a 38-year old ban on tattooing in Massachusetts, Judge Barbara Rouse stated: “persons obtain tattoos to demonstrate commitment to other persons, to institutions, to religious beliefs, and to political and personal beliefs. The medium on which the drawn image appears should not be relevant when determining whether something is ‘speech’; the tattoo itself is symbolic speech deserving of First Amendment protection.”

Piercings

Students with piercings have not faired as well in the courts, however. For example, when an Illinois school district banned male students from wearing earrings in an effort to combat gang presence in the school, the courts upheld the policy stating that the male student’s rights to freedom of expression were not violated because their message was one of individuality, a message that is not protected under the First Amendment.

Other courts have cited the need for students to act in accordance with “community standards” and have upheld dress codes that ban piercings in an effort to prevent disrespect for authority and discipline. Piercings have also been deemed a health and safety hazard that schools have a right to govern.

Nevertheless, dress codes banning piercings can still be fought, but requires a united front of parents and students working together. A little help from the American Civil Liberties Union (ACLU) is also a plus.

When Julie Cahill, an 18-year-old Rhode Island high school honor student was banned from mentoring elementary students because of her lip ring and purple hair, the ACLU stepped in and put pressure on the school committee. Steven Brown, Executive Director of the ACLU’s Rhode Island chapter, said in a letter to the school:

“Surely it is no secret that role models come in all shapes, sizes, styles and even hair colors. As Cahill’s résumé so obviously shows, people with purple or pink hair, no less than blondes, can be excellent mentors to young kids. At the same time, drug treatment facilities are filled with natural brunettes. Indeed, having a person who chooses to look different might even teach young kids a thing or two about resisting peer pressure — one of the most potent promoters of drug use and poor decision-making.”

The school responded by saying that, unlike the immutable characteristic of, say, skin color, Julie is free to remove the dye from her hair and the ring from her lip. To which the ACLU replied, “Discrimination against blacks is not wrong because they can’t help being black — it is wrong because it treats a person unfairly on the basis of a totally irrelevant characteristic.” Powerful words to keep in mind when defending your own right to modify your body.

Hair Color

The ACLU has gotten behind a number of hair color cases and won. For example, the ACLU of Virginia won a $25,000 award in legal fees against a school board that suspended a student for coloring his hair blue. The district court’s decision in that case was based on a 1972 Fourth Circuit Court of Appeals ruling, Massie v. Henry, holding that students have a “right to wear their hair as they wish as an aspect of the right to be secure in one’s person guaranteed by the due process clause.”

However, in many instances these cases do not make it to court as the schools tend to reinstate the multicolored-haired students once the ACLU intervenes.

What is also interesting is that often those students that win their battles against restrictive dress codes are those that have excellent academic records. The ACLU’s press releases on student appearance cases are filled with the words “honor roll” and “model student.” In school, as in life in general, personal excellence has the ability to break down walls of appearance-based discrimination.

Marisa Kakoulas

Marisa Kakoulas is a New York lawyer, writer, and muse of Daniel DiMattia of Calypso Tattoo, living in Liege, Belgium. She works undercover — or just covered up — as a corporate consultant: proof that tattoos and suits are not mutually exclusive. Her book “Tattoo Law”, an overview of US laws affecting the body modification community, is under way. IAM members can visit Marisa at iam:FREE.

Copyright © 2005 Marisa Kakoulas. Online presentation copyright © 2005 BMEzine.com LLC. Requests to republish must be confirmed in writing. For bibliographical purposes this article was first published online April 7th, 2005 by BMEzine.com LLC in La Paz, BCS, Mexico.