Hazelwood used to justify cap-and-gown requirement

Thursday, May 27, 2010

Public school students’ graduation garb is school-sponsored speech, which gives school officials authority to impose uniform cap-and-gown requirements on students. That’s the lesson of an interesting South Dakota case in which a federal judge rejected the First Amendment claims of Aloysius Dreaming Bear, who objected to wearing a cap and gown over his traditional Lakota clothing at his high school graduation May 22.

Dreaming Bear, a 19-year-old senior at Oelrichs High School, wanted to don his Lakota clothing, as he is a seventh-generation descendant of Chief Red Cloud. School officials said Dreaming Bear — president of his graduating class of 10 students — would need to wear the cap and gown only as he walked across the stage to receive his diploma and that he could remove the garments as he exited the stage. Also, in a feather-and plume ceremony before the graduation, Dreaming Bear and other Lakota students could wear their preferred clothing.

Dreaming Bear insisted that he should be able to receive his diploma in his Lakota clothing without the cap and gown. School officials would not relent. He filed a federal lawsuit, alleging that the cap-and-gown requirement infringed on his free-expression rights.

U.S. District Judge Jeffrey L. Viken agreed that Dreaming Bear’s clothing was expressive enough to trigger First Amendment review. He wrote in his May 18 opinion in Dreaming Bear v. Fleming that “within certain contexts, the act of choosing clothing is elevated above the norm to become the type of expressive speech contemplated by the First Amendment” and that “this is one such case.”

However, Viken determined that Dreaming Bear’s free-speech claim must be evaluated through the prism of the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier. The high court ruled that school officials can restrict school-sponsored student speech if they have a legitimate educational reason. Though Hazelwood involved the censorship of articles in a school newspaper, its reach applies to all school-sponsored student speech.

“The graduation proceeding is a school-sponsored event, and, thus, the students’ speech, including that of Dreaming Bear, is school-sponsored speech,” Viken wrote. “Clearly, the graduation exercises are not a public forum open to public expression of speech.”

Regarding an educational reason for insisting on uniformity in graduation clothing, Viken wrote: “The school board has a legitimate interest in honoring its graduating seniors and preserving the unity of the class at this most auspicious event.”

He said messages from the graduation “may become diluted” if every student could wear clothing of his or her choosing. Uniformity of dress also “furthers the school board’s interest in … celebrating academic achievement,” he added.

Viken’s reasoning with respect to “unity of the class” is interesting, because Dreaming Bear had obtained signatures from almost all of his classmates, most of them Lakota who indicated they supported their class president’s right to wear the clothing of his choice. “The unity of the class” supported Dreaming Bear rather than the school officials.

But that didn’t matter in the end. School officials prevailed — in large part because of Hazelwood. And besides, Dreaming Bear didn’t participate in graduation. The Associated Press reported that he said on May 19 that he would miss it to attend his grandfather’s funeral.

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