In Court: When Clothes Speak to More Than Fashion

Given the importance placed on robust student expression, it’s not completely surprising that a federal judge in New Jersey last week found himself opining on whether it was appropriate for two fifth graders to be sporting buttons featuring Hitler Youth members. The occasion was a protest against the local school district’s party-pooper policy mandating uniforms for students in kindergarten through the eighth grade.

Judge Joseph A. Greenaway Jr. ruled in the affirmative, no doubt helping the wardrobe planning for some parents.

But for those seeking guidance on how far Johnny and Julie can go, a reading of the full 28-page decision is a cause for some comfort and some alarm. Its review of a surprisingly ample array of similar cases raises more questions about acceptable attire and behavior than it answers.

The ruling by Judge Greenaway, of the Federal District Court in Newark, came in response to a suit by two Bayonne families seeking to bar the school district from suspending the pupils if they continue to wear the buttons after being told not to.

He ruled that the buttons, which featured the words “No School Uniforms” in a slashed red circle over a photo of young boys in Hitler Youth uniforms, was protected speech, in that wearing them did not “materially and substantially disrupt the work and discipline of the school.”

That language came from a 1969 ruling that allowed students to wear black armbands to protest the Vietnam War. In that case, Tinker v. Des Moines Independent Community School District, the court ruled that students do not “shed their constitutional rights to freedom of speech or freedom of expression at the schoolhouse gate.”

But then things got complicated. In Bethel School District No. 403 v. Fraser in 1986, the Supreme Court ruled against a high school student who had been disciplined after giving a speech invoking an extended, but not explicit, sexual metaphor. The court ruled it was a highly appropriate function of schools to “prohibit the use of vulgar and offensive” speech.

The general thought that emerged in court rulings was student political speech, [yes], offensive speech on sex and drugs, no. But you can see where this goes. So, for instance, in Boroff v. Van Wert City Board of Education, a federal appeals court ruled that a high school student couldn’t wear a Marilyn Manson T-shirt to school because the musician and his band promoted “destructive conduct and demoralizing values that are contrary to the educational mission of the school.” Black Sabbath? Britney Spears? Eminem? Good luck figuring out whose values pass muster.

Broussard v. School Board of the City of Norfolk held that another school board did not violate the First Amendment rights of a 12-year-old by prohibiting her from wearing an antidrug T-shirt that included a word deemed to be “lewd, vulgar or offensive.” So you could be antidrug and offensive at the same time...

This from the New York Times.