Education Law

When Does the First Amendment Protect What Students Wear to School?

By E.A. Gjelten, Author and Editor
Students’ right to freedom of expression extends to the messages on their clothes, as long as they aren’t disruptive or vulgar. But schools can impose dress codes that aren’t meant to silence opinions.

Arguments about school dress codes are nothing new. Specific disputes may change with fashion and the political controversies of the day—from old battles over boys’ hair length to more recent controversies over blue hair and the way transgender kids dress. But one basic question remains: Do students have the right under the First Amendment to express their opinions or identity through what they wear to public school?

Courts have set out some guidelines for deciding the answer to that question in different situations. The rules are different when schools:

  • punish students for wearing clothes (usually T-shirts) that communicate a viewpoint with words, pictures, or symbols, or
  • require all students to wear uniforms or impose general bans on types of clothes, jewelry, or hairstyles (known as “content-neutral” restrictions).

When Clothes Speak Loud and Clear

Public schools must respect students’ constitutional right to freedom of expression—which extends to the messages students wear on their T-shirts and other clothes. But the U.S. Supreme Court has allowed certain limits on free speech in the school setting. Schools can punish students for wearing clothing with words, images, or symbols that:

  • are vulgar or lewd (Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)),
  • promote illegal drug use (Morse v. Frederick, 551 U.S. 393 (2007)), or
  • are likely to cause serious disruption at school or violate other students’ rights (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)).

Students often display opinions on their T-shirts that make some of their teachers and classmates uncomfortable or even angry. That reaction isn’t enough to meet the Tinker standard. For example, courts have found that schools couldn’t bar students from wearing:

  • black armbands as an antiwar protest (Tinker)
  • buttons protesting the use of “scabs” during a teachers’ strike (Chandler v. McMinnville School Dist., 978 F.2d 524 (9th Cir. 1992)
  • a T-shirt with a picture of the U.S. president and the words “International Terrorist” (Barber v. Dearborn Public Schools, 286 F.Supp.2d 847 (E.D. Mich. 2003)), or
  • a T-shirt supporting the National Rifle Association with an image of guns (Newsom v. Albemarle County School Bd., 354 F.3d 249 (4th Cir. 2003).

When it comes to T-shirts with provocative or divisive messages, it can be tricky to draw the line between what’s truly disruptive and what’s merely unpleasant or upsetting. (For more on that, see our article on what makes speech too disruptive at school.) Depending on the context, courts may come to different conclusions about clothes with similar messages, like Confederate flags.

Content-Neutral Dress Codes

Many public school officials try to avoid individual disputes over students’ dress by requiring school uniforms or banning T-shirts with any words. Sometimes, school dress codes are so broad that they seem to rule out whatever teenagers want to wear. But courts have generally allowed these content-neutral dress codes if the school gives a reason that’s important to its educational mission and isn’t meant to suppress student’s freedom of expression. Some of the reasons schools have successfully used to justify dress codes include:

  • minimizing distractions
  • maintaining an orderly learning environment
  • reducing socioeconomic differences (at least in clothing), and
  • teaching students to respect authority and follow community standards.

When Clothes Send a Message Without Words

Some students have claimed that supposedly content-neutral dress codes violated their right to express their viewpoint or cultural identity with certain styles of clothing or hair. Their legal challenges have had mixed results. Often, courts found that the students’ choice of dress or hairstyle didn’t meet the Supreme Court’s test for when nonverbal actions are protected expression under the First Amendment:

  • the action was meant to send a particular message, and
  • viewers would understand the message.

Under that standard, for instance, courts have found that schools could bar students from wearing baggy jeans or headwraps, because the message wasn't clear. But most courts agree that schools shouldn't forbid students from wearing hijabs, which make a clear statement of Islamic faith. (For more on this, see our article on freedom of religious expression at school.)

Questions for Your Lawyer

  • What can I do if the principal says that my transgender child is disrupting school by dressing to fit her gender identity rather than her biological gender? Does the possibility of bullying trump my child’s right to freedom of expression?
  • Can school officials tell my son that he can't wear traditional Native American ceremonial dress to high school graduation?
  • Can the school punish my child for wearing a T-shirt that says "Islam is of the Devil" just because it might offend some Muslim students?

Go to the main FAQ page on students’ freedom of expression.

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