INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

Controversial Influences of the First Amendment on Dress Codes, Uniforms &

Clothing:
An Essay

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

When signed on September 17, 1787, The Constitution of the United States of America did not
feature even the basic essential freedoms that are now enlisted in the Bill of Rights. This was
because a majority of the Founders and Framers of the Constitution considered including them
unnecessary. However, as a result of rigorous debating, that ensued for almost the following 4
years, the Bill of Rights came to be finally adopted.
The first among the freedoms mentioned in the historic document were phrased in the following
45 words written by James Madison:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment to the U.S. Constitution
These are the words that have come to be known as the First Amendment to the U.S.
Constitution.
The first 10 amendments to be made to the constitution, also known as the Bill of Rights, went
into effect on December 15, 1791 after ratification by the State of Virginia, thus deeming it
necessary for a majority of the ratifying states to protect their citizens from the powers of the
federal government.
This blueprint for personal freedoms and the hallmark for an open society protects freedom of
speech, freedom of religion, freedom of assembly and the freedom for petition. The First
Amendment ensures that if there is any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

force citizens to confess by word or act their faith therein, as Justice Robert Jackson wrote in
the 1943 case West Virginia v. Barnette.
Justice William Brennan wrote in New York Times Co. v. Sullivan in 1964, the First
Amendment provides that debate on public issues [should be] uninhibited, robust, and
wide-open.
But despite this, Americans hold the application of the First Amendment under wide dispute.
Most people believe in the right to free speech, but are in conflict about whether flag-burning,
hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, pornography, nude
dancing, solicitation and various forms of symbolic speech should be covered. Most agree with
limiting the right to some degree. Courts have to deal regularly on First Amendment
controversies and constitutional clashes. The free-press vs. fair-trial debate and the dilemma of
First Amendment liberty principles vs. the equality values of the 14th Amendment serve as
appropriate evidences to this.

Among all the clauses that remain frequently under dispute, Freedom of Expression is the
perhaps the one which is deemed the most disputed. The portion of the First Amendment most
relevant to The Freedom of Expression, reads, Congress shall make no lawabridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble
It defines 3 criteria:

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

a) Symbolic Speech: The expression of ideas involving only action and not words in any
verbal or non-verbal form, is considered "symbolic" speech and, while covered under the
First Amendment, is treated somewhat differently than are other forms of expression.
b) Prurient Interest: A morbid interest in sex.
c) Defamation: Making a statement of purported fact which sheds a negative light on a
person and which tends to affect adversely that persons reputation and which is
published by being communicated to someone other than the injured party.
Defamation is called slander if publication is accomplished by oral communication, or
libel if publication is by some writing, which includes digital and video.
d) Fraudulent Misrepresentation: Making a statement which is known (or should be
known) to be false and which is intended to induce action in reliance thereof, and which,
is in fact, does induce action.
A question that arises relevant to the First Amendment is whether we can freely express
ourselves in any possible way we like, at any time. The answer, in this case must ideally be
affirmative but clearly in terms of practical considerations, some limits are always exercised.
However, not all category of expression subject to the protection of the First Amendment will be
permissible in every context.
In 1971 Paul Robert Cohen had been put to trial for wearing a jacket to court on which the words
F*ck the Draft were written. The Supreme Court held that a state could not convict an
individual for offensive conduct based solely on the content of his speech and thus protected
Cohen. (Cohen v. California, 403 U.S. 15 (1971).
Several legal concepts can be understood from Cohen. The Freedom of Speech, as mentioned
before, not only applies to verbal speech, but to various forms of expression as well.

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

The wordings of the First Amendment, after almost a period of 2 centuries, is not taken literally
by courts any more. The phrase Freedom of Expression indicates a broader scope than the
word speech literally defines. Written expressions, whether present on clothing or otherwise is
covered by the First Amendment protection. Music and Visual Arts also constitute expression
in the sense of the First Amendment.
One of the major constitutional controversies related to the First Amendment that continues in
public schools to this day is regarding compulsory school uniforms and dress codes.
It all started in 1968, when a group of adults and students in Des Moines, Iowa, wore black
armbands to school in protest to the hostilities encountered in Vietnam War. Tinker v. Des
Moines Independent Community School District, 393 U.S. 503, 504 (1969). A few weeks earlier
warnings and notices were issued by the School authority forbidding the wearing of armbands
along with a policy they adopted: any student wearing an armband to schools would be asked to
remove it, and if he refused, he would be suspended until he returned without the armband. (Id.
At 504). Consequently, the students who wore the armbands to school unheeding the restrictions
were suspended and brought suit. (Id. At 504). The Supreme Court ruling in favor of the students
stated that, in order for the state in the person of school officials to justify prohibition of a
particular expression of opinion, a student must engage in a forbidden conduct that would
materially & substantially interfere with the requirements of appropriate discipline in the
operations of the school. (Id. At 509) (Stephanie McPherson, 2007)

The Tinker exception was further encountered in Bethel School District v. Fraser, 478 U.S. 675
(1986). It so occurred that the nominating speech, addressed to about 600 students in Fraser by a
student, was sexually explicit and graphical in nature. Id at 677. Expanding Tinker, the Supreme

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

Court held that it is appropriate for a school to disassociate itself from speech that is vulgar,
lewd, and wholly inconsistent with the fundamental values of public school education. Id. at 685.

The scope for the exceptions were further broadened in Hazelwood School District v. Kuhlmeier,
484 U.S. 260 (1988). This case defined the limit to which educators may exercise editorial
control over the contents of a high school newspaper produced as a part of the Schools
Journalism Curriculum Id. at 262. The Supreme Court held that educators do not offend the First
Amendment by exercising editorial control over the style and content of student speech in
school-sponsored expressive activities so long as their actions are reasonably related to
legitimate pedagogical concerns. Id. at 273.

It is more of a misconception that Fraser and Hazelwood may have overruled Tinker. Fraser and
Hazelwood merely defined the limits of constitutionally protected freedoms of expression that
were never meant to be absolute. (Andrew D.M. Miller, 2002).

According to proponents, such measures, help maintain discipline and prevent gang-related
violence in the schools. Maintaining uniforms and dress codes, according to them helps remove
socio-economic boundaries, lessen peer pressure and enhance the administrators ability to easily
spot trespassers on school grounds. Several school administrators state that such restrictions help
the students to become familiar with the dressing style prevalent in the job market.
Opponents, however, counter that such measures restrict students individuality and personal
freedom. They argue that students could become alienated if school authorities closed off one of
their few available avenues of self-identification and expression. They also question whether
uniforms actually serve the claimed purpose of making the schools safer.

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

Many parents argue that these restrictive policies also infringe on the parents freedom in rearing
their children.

As dress codes gain popularity in the public schools, the debate ripens on the effectiveness of,
constitutionality of, and need for such restrictive regulations. (Amy Mitchell Wilson, 1998)

Today, Courts review the facts of a particular dress code punishment and determine whether or
not the student violation rises to the level of material and substantial, vulgar and lewd, and/or is
school sponsored speech in which school officials are entitled to exercise greater control.

Conclusively, although student dress may implicate the First Amendment, more and more school
districts are turning to dress codes and uniforms as a way to increase discipline and school
safety. And federal judges in several states have upheld school uniform policies in the face of
constitutional challenges brought by students and parents. Proponents argue that the policy of
maintaining a dress code reduce tensions, resolve socioeconomic differences and enhance safety
in the school environment. Opponents in their defense say that these policies are Ban-Aid
solutions that do not improve safety. Further, they often charge that these policies infringe on the
students First Amendment rights of Freedom of Expression. The opinion of several courts vary
when resolving dress-code disputes. Using different judgments they have arrived at different
results. Hence the legal debate over the effect of the First Amendment on dress codes, still
stretches on unresolved.

INFLUENCES OF THE FIRST AMENDMENT ON DRESS CODE

References

Tinker v. Des Moines Independent Sch. Dist., 393 U.S. 503, 507 -- 508 (1969)

"First Amendment". Cornell University Law School Legal Information Institute.

U.S. Supreme Court; Cohen v. California, 403 U.S. 15 (1971); Cohen v. California ;No.
299 ; Argued February 22, 1971. Decided June 7, 1971; 403 U.S. 15

Stephanie McPherson, Tinker v. Des Moines and Students Right to Free Speech:
Debating Supreme Court Decisions (2007)

Amy Mitchell Wilson, Public School Dress Codes: The Constitutional Debate, 1998
BYU Educ. & L.J. 147 (1998).
Andrew D.M. Miller, Balancing School Authority and Student Expression, 54 Baylor L.
Rev. 623 (2002).