11th Circuit backs Fla. school district’s rules on body piercings

Monday, September 1, 2008

A Brevard County, Fla., dress code prohibiting jewelry that pierces anything but ears does not violate the First Amendment rights of students, a federal appeals court ruled recently.

Danielle Bar-Navon, a 10th-grade student at Viera High School in Melbourne in 2006, had challenged the policy, which provided:

“Pierced jewelry shall be limited to the ear. Dog collars, tongue rings, wallet chains, large hair picks, chains that connect one part of the body to another, or other jewelry/accessories that pose a safety concern for the student or others shall be prohibited.”

Bar-Navon wore piercings in her tongue, nose, lip, navel and chest. In August 2006, school officials pulled her aside and told her she would have to remove the pierced jewelry or leave school. She refused. Later, school officials punished her with five days of detention during lunch.

She sued in federal court in September 2006, contending that the policy violated her right to express her individuality and message of non-conformity.

In November 2007, a federal judge granted summary judgment to the school board, finding that the policy on pierced jewelry was a content-neutral policy that had only an incidental impact on student free-expression rights.

Bar-Navon then appealed to the 11th U.S. Circuit Court of Appeals. Last month, a three-judge panel of the 11th Circuit rejected her appeal in Bar-Navon v. School Board of Brevard County and upheld the lower court’s decision. The appeals court panel had to determine whether a student’s act of wearing pierced jewelry qualifies as expressive conduct that triggers First Amendment protections.

The U.S. Supreme Court has developed a two-part test for determining when expressive conduct is sufficiently expressive to warrant protection. First, a plaintiff must show intent to convey a particularized message and, second, must show there was a likelihood that the message would be understood by viewers.

“We question that the prohibition of jewelry in non-otic piercings on students at school who seek to make some general statement of individuality implicates First Amendment speech protections,” the appeals court wrote in its per curiam opinion (decision by the court panel as a whole).

However, the court reasoned in its Aug. 15 ruling that even if the wearing of pierced jewelry was sufficiently expressive, the school board could still impose reasonable regulations that had only an incidental effect on free expression.

The appeals court noted that the “non-otic pierced jewelry regulation … is viewpoint and content-neutral on its face and as applied.” This means that the policy does not discriminate against students for any type of viewpoint or the content of any message they may wish to convey through the wearing of such jewelry.

“The School Board sought to avoid extreme dress or appearance which might create a school disturbance, or which could be hazardous to the student or to others,” the panel wrote. “To that end, the jewelry limitation was narrowly tailored; and ample communicative alternatives remain unrestricted.”

Tags: , ,