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Lesson Plan Booster: Student Clothing and the First Amendment

The First Amendment to the Constitution has generated controversy since its inclusion in the Bill of Rights. Schools have often found themselves squarely in the crosshairs of these controversies as students continually push the boundaries of free speech. In particular, student clothing has sparked debate since the 1960s for a variety of reasons. Free speech and freedom of religion have often come into play with these cases. Do students have the right to wear anything they want to school? Use this discussion guide to help students consider this question in a current events or history class.

Grade Level: 9-12

Student learning objectives

Students will have a better grasp of the meaning of free speech and freedom of religion, which are guaranteed by the First Amendment to the United States Constitution. Students will have the opportunity to discuss cases (some of which made it to court) involving student dress code and how these relate to the First Amendment. They will use critical thinking to determine whether in specific cases the student's right to wear a particular article of clothing would be protected under the First Amendment.

Preparation

Read the text of the First Amendment to the Constitution, ratified in the year 1791:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

You will want to provide this text to students either on paper or through electronic display. Here is one online source for the text of the amendments.

Review the American Civil Liberties Union’s article on the First Amendment. Keeping in mind that the ACLU’s opinions may be stronger than those of the “average” person with regard to personal freedoms, prepare to discuss the following questions with students.

Familiarize yourself with the Tinker Standard (Tinker v. Des Moines Independent School District, 1969). This is the landmark Supreme Court decision which established that student apparel is considered protected speech under the First Amendment. According to court documents:

The case was brought when 15-year-old John Tinker, his sister Mary Beth, 13, and Christopher Eckhardt, 16, wore black armbands to their Iowa public schools in December 1965 to protest the Vietnam conflict. School officials caught wind of the plan to wear armbands and quickly enacted a no-armband policy. The school then enforced its no-armband rule while allowing the wearing of other symbols, including the Iron Cross.

The students sued in federal court and lost before a federal trial court. The trial court sided with the school officials’ argument that they had enacted the policy out of a reasonable fear that the wearing of the armbands would create disturbances at school.

The case eventually made its way to the U.S. Supreme Court, which overturned the previous decision and ruled in favor of the students. In oft-cited language, the Supreme Court wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."

The Court continued with its ruling, stating, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

Hudson explains that when determining whether student expression should receive First Amendment protection, there are several legal “tests” that can be done.

a. Is the student material “speech or expression” within the meaning of the First Amendment?
Student poems, essays and the like are considered expressive and are therefore protected. Nonverbal behavior such as clothing style or dyed hair falls into more of a gray area, however.

b. Does the student expression involve a true threat?
If the expression communicates a serious, clear intent to harm someone — it receives no First Amendment protection.

c. Is the student expression school-sponsored?
If the student expression consists of a homework assignment or material in a school newspaper or performance — then the "Hazelwood standard" applies (i.e., if school officials can prove they have a legitimate educational reason for censoring the student expression, it is not protected).

d. Is the student expression lewd, vulgar or plainly offensive?
If the student expression is inappropriate for these reasons (e.g., includes curse words or sexual content), a school can prohibit it under the Fraser decision, and the expression is not protected.

e. Is the student expression substantially disruptive within the meaning of Tinker?
If school officials can reasonably predict that the student expression will disrupt the learning environment or interfere with the rights of others, then they can prohibit the expression, and it is not protected.

Compare the Tinker case to more recent cases where student clothing has come under fire from school officials. Although the incidents have not resulted in court cases, consider whether they involve First Amendment issues.

In 2012, a Massachusetts high school set off a national free speech debate after a student was reprimanded for wearing a T-shirt that proclaimed, "All the Cool Girls Are Lesbians." The vice principal told the student to cover up the shirt and not wear it again "because it's political and offensive to some people." The student complained to the school board, who supported her. The student argued that "The word lesbian is not inappropriate. Saying it is, is calling homosexuality inappropriate."

In 2011, sportswear giant Nike received backlash over a new t-shirt line featuring the phrases "Dope," "Get High" and "Ride Pipe," which critics claim promote drug use. If students wear such items to school, it is likely a ban will soon follow.

In 2010, Dubuque Hempstead High School in Iowa issued a ban on plain, white t-shirts. Although many claimed that the ban was uncalled for, officials upheld their decision because they felt the shirts could be used as a sign of white supremacy.

In 2007 a line of shirts protesting Michael Vick began appearing. (At the time, the quarterback was facing charges of organizing a massive dog-fighting ring, a crime of which he would later be convicted.) A student group at Texas A&M University produced t-shirts depicting a football player wearing Vick’s number 7 hanging the dog mascot of the university. The shirts also featured the phrase “Vick ‘em,” a twist on the Aggies’ slogan of “Gig ‘em.” Again, a ban was issued.

In 2005 a t-shirt made popular by the rapper Young Jeezy began showing up in classrooms. The shirt seemed innocent enough, featuring a three-ball snowman. What schools were missing was the fact that the term snowman had a secondary meaning. A person who sells cocaine is sometimes referred to as “the snowman.” Once schools become aware of this, bans were quickly enacted.

Sometimes the issue with clothing is not words on a shirt, but the religious beliefs that a piece of clothing represents. Compare the Tinker case to a 2006 case in Baltimore where a student’s clothing, worn for religious reasons, caused her to be removed from a sports game. Although this case did not make it to court, consider whether you believe this case violated freedom of religion under the First Amendment.

A basketball referee benched a 12-year-old basketball player for refusing to remove a head covering that she wears as part of her Muslim faith.

The girl was allowed to rejoin the game with the permission of a league administrator. The girl’s team offered to forfeit the game in order to protest perceived discrimination against her, but her family would not allow it. Instead, her father said his daughter sitting on the bench offered a way to stand up for her beliefs.

The referee had deemed the girl’s head covering a safety hazard. He faced no penalty for his decision to remove her from the game, since under the basketball league’s bylaws, the student would have needed to file paperwork for a religious exemption to the basketball league’s dress code. Following the game, her family filed the paperwork, formally granting her the exemption.

Introducing discussion to students

You may have seen cases in the media about issues related to student clothing in a school setting. (This issue may even have come up at your school.) Let’s use several types of clothing-related cases to explore what “free expression” really means in a school setting, and what is and is not protected under the First Amendment.

Options for student discussion questions

NOTE: Many of these topics lend themselves to writing assignments or oral presentations, or even formal debates. In addition, the topics present a good opportunity to divide students into groups based on their opinions and have each group present its finding to the whole class. Or, students can be paired with someone whose opinion is different from their own, and the pair can present their points of disagreement to the whole class.

In your own words, what does the text of the First Amendment actually mean?

Under the First Amendment, what does “protected speech” include? Does that mean we as a society have to tolerate hateful speech? Why is free speech essential in a free society? Are there any exceptions or limits to the First Amendment?

Do you think schools have the right to ban clothing with certain types of messages?

Under what circumstances is it appropriate to ban clothing?

If you were a school official, how would you decide whether student speech or written messages would “disrupt the learning process,” since the threat of disruption is often used as the reason for clothing bans?

How easy or difficult is it to define “offensive” speech or messages on clothing?

Compared to the Tinker case, more recent cases of clothing bans have been less “serious” (i.e. t-shirts with drug references, as opposed to the political protest symbolized by the black armbands in the Tinker case). Do you think the more recent cases still involve First Amendment issues? Could students have taken any of these cases to court? Why or why not?

How many of the "five legal tests" (e.g., true threat, school-sponsored, vulgar, etc.) would each case have passed? Do the details of any case suggest that the students' rights would have been protected under the First Amendment?

Regarding the case of the student benched from the basketball game, do you believe that the referee violated the student’s freedom of religion under the First Amendment?

What has changed since the Tinker case in the 1960s? Where do students stand today in terms of their freedoms under the First Amendment?