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More focus on education, less on dress codes

 All-girls Catholic schools may have strict dress codes, while greater freedom prevails in public schools.
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Date published: 9/12/2013


--Hey kids, what are you going to wear to school today?

A miniskirt? How short? "Sagging" pants: Is that kosher? What about a do-rag? Fishnet tights? Or hoodies, tattoos, sweat pants, frayed jeans, an Afro puff or, if you're a boy, long locks? How about a breast-cancer-awareness bracelet featuring the word "boobies"?

All of these are real examples of fashion choices that schools across the country have recently attempted to restrict. The wrong choice could get you kicked out of class or suspended, and if you want to fight for your right to a hoodie or a short skirt, you and your parents may have to file suit and head for court.

Your defense would probably be the First Amendment, and the first hurdle would be proving that your desired dress is "expressive." But courts often decline to find that "mere style" conveys a message, a rather anomalous conclusion given that school dress codes seem predicated on prohibiting styles precisely because they express something: disrespect, sexuality, rebellion or even fashionableness.

Symbols or words on clothes are most likely to clear the speech hurdle; they will then be evaluated against the "disruption" standard articulated by the Supreme Court in the watershed case Tinker v. Des Moines Independent Community School District. Tinker involved students wearing black armbands to protest the war in Vietnam. Borrowing from civil rights cases, the court decided for the protesters: Authorities had to show that speech materially and substantially interfered with appropriate school discipline in order to ban student speech.

Later lawsuits have had mixed results. In a flurry of cases involving representations of the Confederate flag, the courts leaned toward upholding school bans. Students promoting the Straight Alliance (and who donned shirts that proclaimed "Be Happy Not Gay") were generally more successful, although a few judges thought the message could disrupt gay students' learning. And just last month, students' "I (heart) boobies" bracelets were validated by the U.S. 3rd Circuit Court of Appeals: The school in question could not ban an expression that was not "plainly lewd."

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