Tennessee official: ‘Reasonable’ dress codes don’t violate First Amendment

Thursday, August 5, 1999

“Reasonable” dress code policies enacted by public school boards don't violate the First Amendment, the Tennessee attorney general said in a recent opinion.

State Sen. Lincoln Davis, D – Pall Mall, had asked Attorney General Paul Summers whether local school boards could adopt a uniform clothing policy and whether parents could be required to purchase the clothing. In Tennessee, the attorney general's office responds to legal questions issued by various state officials, oftentimes legislators.

There is no “constitutional impediment” to the use of “reasonable dress codes,” the July 27 opinion states. “Such regulations do not implicate constitutional issues such as equal protection, due process, privacy or the First Amendment.”

However, at least one attorney who specializes in dress code litigation says the opinion is “flatly wrong.” Gary Klahr, an Arizona attorney who has assisted in dress code challenges across the nation, says that uniform and dress code policies must let parents opt-out and must allow kids to wear “logo-message clothes.”

Klahr says that several court decisions have established the right of public school students to wear clothes with messages.

“Public school students should be able to use their clothing to express their opinions unless the dress creates imminent disruption,” Klahr said.

Klahr points to the U.S. Supreme Court's 1969 decision in Tinker v. Des Moines Indep. Community School Dist. in which the high court ruled that school officials in Iowa violated the First Amendment rights of several students by suspending them for wearing black armbands to school to protest U.S. involvement in Vietnam.

The high court ruled that student expression could not be censored unless it creates a material interference or substantial disruption of normal school activities. “The Tinker case established that students do have general rights of free-expression in public schools,” Klahr said.

Several court decisions have at least recognized that restrictions on student clothing can implicate the First Amendment. For example, a federal court in California ruled that a school policy prohibiting the wearing of sports-related apparel at area public schools at least implicated the First Amendment. In Jeglin v. San Jacinto Unified Sch. Dist., the federal court wrote: “The teachings of Tinker … are clear that public school students have a right to freedom of speech which is not shed at the schoolhouse gates. This speech in our view encompasses the wearing of clothing that displays a student's support of a college or university or a professional sports team.”