Growing up in west-central Iowa, I attended Catholic grade school. I recall standing at attention by my desk in apparel that fit the school’s dress code of a button-down shirt with lapels and dress slacks, reciting the “Pledge of Allegiance” to the American flag.

One morning, immediately after our recitation of the Pledge, we were shown a film clip of children in China – wearing gray outfits and standing at attention toward a picture of Mao – saluting him with outstretched arms. The nun was teaching us the ills of Communism. I could not – hell, I still can’t understand the difference between what we were doing and what the Chinese kids were doing. Okay, we saluted a flag and they were saluting a picture.

House File 77, a bill allowing public school districts to adopt dress code policies, went through the subcommittee process this morning [Wednesday, Jan. 26]. The bill is the result of a challenge to a Waterloo School District dress code.

Anyway, I traveled back through time this morning as we discussed school dress codes. Today, schools want to keep gangs out of school. In order to do that, there is an ill-conceived concept that if we keep gang-related colors out of school – gangs will cease to exist. Gang related colors change about as much as Iowa’s weather.

Clothing worn by students has been an issue for quite some time, and it’s been an issue throughout the country, not just Iowa. The United States Supreme Court has yet to rule on the constitutionality of dress codes in relation to students’ First Amendment rights. Iowa is within the Eighth Circuit Court of Appeals, the appellate stop before moving up to the U.S. Supreme Court. There is a lack of case law on this matter in the 8th Circuit as well.

Several state and federal district court cases have ruled on related issues, but most of those cases have been decided in the 1980s and 1990s. For instance, a 1982 case from the Fifth Circuit, which consists of Texas, Louisiana, and Mississippi, has dealt with the matter of “hairstyle regulations.” In Domico v. Rapides Parish School Board, 75 F. 2d 100 (5th Circuit 1982), the Court said that a school board could instill the student dress code upon teachers and other employees. But Cf; Colorado Indep. School Dist. v. Barber, 864 S.W. 2d 806 (Tex. App. Eastland 1993) (Male students successfully challenged enforcement of a school dress code, which prohibited male students from having long hair or from wearing earrings.).

Earrings are another matter. In Olesen v. Board of Education of School Dist. No. 228, 676 F. Supp 820 (N.D. Ill 1987), a school board in suburban Chicago was sued in federal district court by a group of high school students questioning the constitutionality of a school anti-gang rule that prohibited males from wearing earrings. The students lost the case. The Court determined that the students’ message of individuality was not protected within the scope of the First Amendment, and that discouragement of gang-related membership and affiliation were legitimate objectives of the school. But see; Colorado Indep. School Dist. v. Barber, 864 S.W. 2d 806 (Tex. App. Eastland 1993). (Male students successfully challenged enforcement of a school dress code, which prohibited male students from having long hair or from wearing earrings.)

T-shirts have drawn a lot of attention. In Broussard V. School Board of the City of Norfolk, 801 F. Supp. 1526 ( E.D. Virginia 1992), a student sued a school board because she was suspended for one day for refusing to change out of a shirt printed with the words “Drugs Suck!” Although she claimed that the suspension violated her rights of due process and free speech, the court found otherwise. Contra McInyre v. Bethel School Indep. Dist. No. 3, 804 F. Supp 1415 (W.D. Ok. 1992).

In Pyle v. South Hadley School Committee, 861 F. Supp. 157 (D. Mass. 1994), two high school students sued the school committee, challenging the school’s policy which prohibited their wearing of two T-shirts. One read “See Dick Drink. See Dick Drive. See Dick Die. Don’t be a Dick” and the other read “Coed Naked Band: Do It to the Rhythm”. The District Court held that school officials could restrict vulgar expression by students regardless if there was any risk of substantial disruption, but that a dress code which prohibits apparel that harasses others violates the students’ First Amendment rights. The U.S. Court of Appeals for the 1st Circuit denied the motion to intervene and did not disturb the district court’s judgment in relation to the enjoined enforcement of the harassment provision.

All of the previously mentioned cases come from various federal district courts in other circuits in the country. The only comparable case from the Eighth Circuit (which includes the state of Iowa) is a case called BWA v. Farmington R-7 School Dist., 554 F. 3d 734 – Court of Appeals, (8th Circuit 2009)

The facts in this case are far too unusual to use as an example of prohibitive clothing within the Eighth Circuit. That’s because the two students who were suspended from school were wearing T-shirts that depicted the Confederate flag symbol. However, it goes much further than that. Prior to their suspension for wearing the T-shirts the two were also involved in several racially-charged incidents. The case deals with viewpoint discrimination and does not offer much constitutional direction by the Eighth Circuit on the issue of dress codes.

If House File 77 is enacted, public school administrators will be gambling with an issue that could cost them thousands and thousands of dollars over the long haul if it makes its way to the United States Supreme Court. Some administrators and school boards may gamble; some won’t. I predict that this issue will someday find its way to the United States Supreme Court, especially since the lower courts appear to be all over the place on their decisions. But then, the issue hasn’t made it there, yet. So it may take another forty years before someone gets their question before the High Court. Willing to gamble?

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