Commencement is just around the corner. Considered a pinnacle of student achievement, celebrating our students’ achievements should be a day all about them. Unfortunately, in today’s politically charged times, there may be efforts to shift the focus from student achievement to political messaging. As districts put the finishing touches to their graduation ceremony plans, it is important to be sure you have thought about dress codes. 

In Blau v Fort Thomas Pub Sch Dist, 401 F3d 381, 397 (CA 6, 2005) the court ruled in favor of a dress code where the claim was based not on based on a First Amendment right to free speech, but rather a desire to wear clothes the student “feels good in”. However, when First Amendment free speech rights come into play, the analysis becomes more challenging. First Amendment speech can be regulated by a school in certain instances, for example in Boroff v Van Wert City Board of Education, 220 F.3d 465 (CA 6, 2000), where the court upheld a school dress code prohibiting a student from wearing a Marilyn Manson T-shirt because the shirt contained symbols and words that promoted values that were so patently contrary to the school's educational mission that defendants had the authority, under the circumstances, to prohibit. However, in other instances, First Amendment speech cannot be restricted based on content. Tinker v Des Moines Indep Community Sch Dist, 393 US 503; (1969) made this clear when the Supreme Court held students wearing black armbands in protest of the Vietnam war were entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities. Of course, the question of what counts as a reasonable forecast of substantial disruption or material interference is challenging (See Defoe v Spiva, 625 F3d 324 (CA 6, 2010) where the appeals court upheld a districts ability to ban confederate flag t- shirts, and Castorina v Madison Co Sch Bd, 246 F3d 536 (CA 6, 2001) where the court of appeals did not).  

In order to best protect itself, and ensure that commencement is focused on graduating students, districts should take a few moments to consider their positions on dress code. By doing so, they can have an answer in place to the potential question “why can’t I wear this?”

If you have questions about this, or other legal matters, please do not hesitate to contact MASB’s legal department.