Constitution Check: Do school uniform policies violate the First Amendment?

Lyle Denniston looks at the constitutional issues involved in a case where a public school is mandating the appearance of a logo on clothing worn by students.

school_LockersTHE STATEMENT AT ISSUE:

“The Roy Gomm Elementary School uniform policy mandates written expression, a message on the shirts above the school logo stating ‘Tomorrow’s Leaders.’…Practically speaking, the Elementary School compels its students to be an instrument for displaying the school motto.  Had the uniforms consisted of plain-colored tops and bottoms…, the School would have steered clear of any First Amendment concerns.  However, by mandating the written motto on the uniform shirts, the School policy compels speech.”

 – Excerpt from an opinion by the Ninth U.S. Circuit Court of Appeals on February 14, ordering a federal judge to conduct a new review of the school uniform policy at the Roy Gomm Elementary School in Reno, Nevada, challenged by the parents of a boy and a girl attending the school.

WE CHECKED THE CONSTITUTION, AND…

The First Amendment’s free speech clause has long been a bulwark against government efforts to impose conformity and orthodoxy in ideas or points of view.  Under this tradition, it is not the business of the government to decide which views are acceptable, and which are not, and the right to speak one’s own views is matched by protection against having to utter someone else’s views – especially, views favored by the government.

It is not at all clear, though, how robust that protection is among students who attend public schools.  While the Supreme Court has said repeatedly that those students do not shed their First Amendment rights when they enter the school, it has said that authorities may sometimes impose some forms of conformity in order to help in achieving the schools’ teaching and civic education missions.

If a student’s speech activity disrupts the educational process, it can be regulated and even prohibited (as with obscene expression during election campaigns for class officers, and the use of school computers to engage in bullying other students).  And the courts have allowed schools to adopt policies requiring students to conform to dress codes.  One’s style of dress is, of course, often a form of expression, a statement of one’s own persona, and that may be especially true for teenagers asserting their own stylistic preferences.

But the fact that one’s choice of clothing is considered, legally, a kind of message means that the First Amendment comes into play in determining just how far school officials can go to regulate what students wear to school.   And, as the federal appeals court decision quoted above shows, there are First Amendment risks even in mandating the use of a school motto that would seem to be inoffensive, if the message were evaluated in a public opinion poll.

At the Roy Gomm Elementary School on Mayberry Drive in Reno, the school adopted a mandatory uniform policy, requiring students to wear only red or navy polo-style shirts and tan or khaki bottoms.  So far, legally, no First Amendment problem, under court rulings that apply to public schools in Nevada and neighboring states.

But the school also required that the shirts have the school logo on the front, with a figure of the school’s mascot, a gopher, and above that logo, the motto “Tomorrow’s Leaders.”  Students had no choice about these requirements, and were forbidden to alter the shirts.  School officials have defended the use of the policy to promote “school spirit and unity” and to help the students “feel like they are part of a team working toward the common goal of academic excellence.”

However, to the parents of a fifth-grade boy and a third-grade girl at Roy Gomm, that phrase mandates that those children express two thoughts: “that leadership should be celebrated (or at least valued above being a follower), and that Roy Gomm Elementary School is, in fact, likely to produce tomorrow’s leaders.”  Those, the parents contended, are the views of the school as part of the government, and their children cannot be ordered to endorse them on the clothing they wear to school.

Two things of constitutional significance are immediately apparent about their claim: First, their First Amendment right not to be compelled to utter a government-chosen message does not depend upon how popular their objection would be or whether anyone else would find the message objectionable, and, second, their First Amendment claim against “compelled speech” is hardly novel, tracing its origins at least back to a 1943 ruling against compulsory saluting of the American flag at the beginning of the school day, even for children whose religious views reject such an exercise.

Whether the parents in this case ultimately win depends upon whether school officials can come forward with a “compelling” argument why the uniform policy needs to include the school motto.  The parents’ claim had initially been dismissed by a judge who said the policy was no different from prior policies upheld by the courts.  The appeals court disagreed, saying that earlier uniform policies did not involve any compelled message.

Whatever the final outcome, after the case that parents Mary and Jon Frudden have pursued goes through a new review by a judge, the teachers at Roy Gomm Elementary will have an excellent case study to add to their civics instruction for the students – as well as a lesson of tolerance for what may be minority views.  Whether their students become tomorrow’s leaders or, more simply, tomorrow’s citizens, both lessons would be valuable.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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