Free Speech & Student Dress


Freedom of speech is an invaluable right in American society. Having the right to express oneself in a manner that he or she sees fit, so long as it does not incite violence, or threaten the safety or wellbeing of someone else is a privilege that has paved the way for many legal strides in the United States. Many have seen the benefits, as well as the awareness raised from peaceful demonstrations such as sit ins, and non-violent protests. Students in school are also afforded a version of these rights, with schools censoring the speech and material that they distribute and read, only if it impinges on the right and safety of another student. Freedom of speech also extends to how a student wishes to dress; however, this freedom of expression is also subject to sanctions.


Students who wish to express their opinions through their form of dress must wear attire that constitutes symbolic speech of either political or religious values (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S 503 (1969); Appeal of Conely, 34 Ed Dept Rep 376 (1995); Appeal of Mangaroo, 33 Ed Dept Rep 286 (1993); Appeal of Pintka, 33 Ed Dept Rep 228 (1993)). Schools must remember to be careful when deciding if a student’s form of dress violates the laws of free speech. For example, in one case, a school took disciplinary action against a student who wore a t-shirt to school that criticized President George W. Bush, and depicted images of drugs and alcohol. However, the U.S Court of Appeals of the Second Circuit, with jurisdiction over New York, determined that school officials acted unlawfully. Though the images depicted on the shirt may have been in poor taste, they were not vulgar, lewd, indecent, or plainly offensive, particularly because they were part of an anti-drug political message (guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied, 551 U.S 1162 (2007)).


Also, a student who wore a popular breast cancer awareness bracelet which displayed the slogan “I Love Boobies! (KEEP A BREAST)” prevailed against her school district’s disciplinary action after a federal appellate court outside the state of New York determined that the bracelets were not plainly lewd, and commented on a social issue. In addition, the school district failed to show how the bracelets threatened to substantially disrupt the school (B.H v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013), cert denied, 134 S. Ct. 1515 @2014)).


Schools have dress codes that students must abide by, however, these dress codes may not suppress expressions that are entitled to free speech protections. However, in a ruling from one federal appellate court outside of New York, a student dress code that bans all shirts with printed images, except those related to district-sponsored circular clubs, organizations, athletic teams, or school spirit approved by a principal is considered constitutionally permissible (Palmer v. Waxahachie Indep. Such. Dist., 579 F.3d 502 (5th Cir. 2009), cert. denied, 558 U.S 1111 (2010)). Additionally, student dress codes must be clear, and concise, and not at all vague, subjective, or overly broad (Appeal of Parsons, 32 Ed Dept Rep 672 (1993); see also Newsom v. Albemarle Cnty. Such. Bd., 354 F.3d 249 (4th Cir. 2003); Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir.), cert. denied, 538 U.S 1033 (2003)).


There are, however, restrictions to the free speech limitations that restrict the ability of school districts to regulate a student’s dress code at school. The commissioner of education has indicated that school districts may not regulate the way students dress while at school based solely on fashion or taste considerations (Appeal of Pintka,, 33 Ed Dept Rep 228 (1993)). This means that schools cannot prevent students from wearing a pair of rainbow colored boots, or a metallic sequin jacket since the clothes may be in poor taste. In addition, schools may not generally prevent students from wearing buttons, armbands, flags, decals, or other badges that are symbolic of personal expression, if the said material does not interfere with the orderly process of school, or the rights of others (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S 503 (1969)). Additionally, schools generally cannot force students to wear a uniform or kind of clothing, or face exclusion from school (Appeal of Dalrymple, 5 Ed Dept Rep 113 (1966)).


Though freedom of expression through a form of dress is a right entitled to many students in schools, it comes with its own set of limitations. Still and yet, students are generally free to express themselves in a manner that they see fit, if it does not promote violence, harm, or hate on any group of people. 

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Managing Attorney

Angel A. Castro, III, Esq.

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Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.


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