Preventive Law
Preventive Law Corner - What Not to Wear: An Update on Texas Dress Code Cases
By Dr. Carol Simpson, Associate and Kelly J. Shook, Associate
Dec 11, 2009, 08:31

Battles continue to be waged all over the State of Texas regarding what students can and cannot wear to school. Below are updates on the most recent court and Commissioner decisions regarding school dress code policies. 

Logos? Oh No!

In August of this year, the Fifth Circuit upheld a school dress code policy that prohibited shirts with any writings or messages other than those expressing school spirit or identifying a school club and those containing any logos smaller than two inches by two inches.  In Palmer ex rel. Palmer v. Waxahachie Independent School District, the court gave schools clarity in how to fashion dress codes with content and viewpoint neutral restrictions on student speech.[1]

Schools may regulate and restrict student speech via their dress codes as long as the regulation is viewpoint- and content-neutral, following the Fifth Circuit reasoning in Canady v. Bossier Parish School Board.[2]  For a regulation to be content-neutral, the regulation must not be based on disagreement with the message conveyed.  In Palmer, all messages were prohibited, not just ones with which the school disagreed.  The court used the standards for intermediate scrutiny established in Canady, asking (1) does the regulation further an important government interest? (2) is the interest unrelated to suppression of student expression? and (3) are incidental restrictions on speech no more than necessary to facilitate that interest?  Palmer only challenged the district’s policy under prongs one and three.

For prong one, the district explained that the code would reduce administrative enforcement time.  It also stated that the dress code would give students a safer learning environment and encourage professional dress.  Both were important factors in the court’s determination of “important government interest.”  Because the code allowed other forms of speech at school, such as buttons and wristbands, the court found that the regulation also satisfied the third prong.  The court rejected Palmer’s argument that allowing these other types of expression made unimportant the interest in restricting speech through dress.

No Longer May it Wave: Ban on Confederate Flags Upheld

Nothing seems to spur high tempers more than the Confederate flag, and in October, the Fifth Circuit Court of Appeals ruled in the latest of a series of court cases involving display of the Confederate flag: A.M., ex rel. McAllum v. Cash.[3]

After a series of ugly racial incidents, some of which were caused or exacerbated by a display of the Confederate flag, Burleson High School established a policy prohibiting display of the Confederate flag on school premises.  Early in 2006, two students arrived at school carrying purses decorated with large images of the Confederate battle flag in violation of that policy. They were advised they could leave the purses in the office or have a parent pick up the purses.  Both girls elected to return home rather than accept either alternative.  Claiming that—to them—the flag was a symbol of “patriotism, faith and family,” the students sued the district and principal saying their First Amendment rights had been violated, that the dress code was vague and overbroad and violated their due process rights, and they had been deprived of equal protection since others wore equally provocative symbols.[4] 

The district court found for the school district, and the students appealed to the Fifth Circuit. On the issue of free speech, the appeals court relied on Tinker v. Des Moines Independent Community School District for the “substantial disruption” standard, noting that there was a history of racial tension associated with display of the Confederate flag – not just an intuition that there might be some disruption.[5] In Tinker, the Supreme Court established that a school could ban speech that substantially interfered with the work of the school or impinged upon the rights of other students.[6] The Fifth Circuit found that the history of past disruption caused by racial strife in general and the Confederate flag in particular was sufficient to justify the ban.

Wear It How You Like It:  Native American Hair Exemptions

In January, a federal district court faulted a school district for its method of handling a dress code exemption for a Native American kindergartener.  In Betenbaugh v. Needville Independent School District, the school district granted a Native American student a dress code exemption allowing him to keep his hair long, but required the student to keep his hair covered under his shirt, in one braid.[7]   The student objected to this restriction, insisting upon wearing his hair in two braids outside his shirt.  Among other things, the student alleged that the district’s exemption policy violated the student’s right to the free exercise of religion under the First Amendment.

To be eligible for an exemption to the dress code under the Free Exercise Clause, a student must show that the dress code policy violates a “sincerely held religious belief” and demonstrate that the district’s policy substantially burdens that belief.  A regulation creates a “substantial burden” if it “truly pressures the adherent to significantly modify his religious behavior and significantly violates his religious beliefs.”

In Betenbaugh, the court determined that enough evidence (including DNA samples, parent statements of their religious beliefs, and illustrations of how student abides by his religious teachings) was presented to show that the student’s long hair was a part of his deeply held religious beliefs as a Native American. The court then turned to whether the district’s exemption policy substantially burdened the student’s religious belief. Reflecting upon the “practical discomfort” of having the braid tucked down his shirt and the fact that female children attending the school were allowed to wear their hair exposed in two braids, the court determined that the district did not allow the student the freedom to wear his hair in a comfortable, practical manner, thus burdening the expression of his religious belief.  The court went on to state that the physical burdens of the policy may influence the student to cut his hair in violation of his religious beliefs.   Thus, the policy was determined to be substantially burdensome in violation of the Free Exercise Clause.  The district’s stated governmental interest in promoting “the school’s order and hygiene” was not a strong enough interest to overcome the burden the restrictions placed on the student’s religious expression.

Note: this case has been appealed by the school district to the Fifth Circuit Court of Appeals, so await a final decision from the appeals court before regarding this case as definitive and binding.

Uniforms or “Standardized Dress Code”?

In 2007, the Commissioner of Education established a new standard for judging school district denials of parent requests for exemptions to school uniform policies. Notwithstanding the new standard, districts may still want to consider establishing “standardized dress code” policies instead of “uniform” policies in order to try to avoid the issue of parent exemptions altogether.

Texas Education Code  § 11.162 permits school districts to require uniforms, but provides for an exemption if the parent states in writing “a bona fide religious or philosophical objection to the requirement.”  When determining if a belief is bona fide, the board must look at whether the belief is “truly held.”  The standard of review set forth by the Commissioner in decisions leading up to Parent on behalf of Child v. United Independent School District placed a heavy burden on the school district to prove the insincerity of a parent’s religious or philosophical belief once the parent requested an exemption.  The parents, on the other hand, were deemed to have met their burden of showing their belief was “truly held” simply by writing a request for an exemption.

In United, a parent relied on the philosophical works of John Dewey when making her written statement that she believe conformity is a danger. The Commissioner upheld the exemption from United ISD’s uniform policy, despite  evidence presented by the district that the student in question had worn uniforms in the past, may wear uniforms if the student changed schools in the future, and currently wore uniforms for sports.[8]

This decision may leave you thinking, “Wait a second, if a parent gets an exemption with all that evidence to the contrary, how will a district EVER overrule a parent exemption??”  And it’s true, under the prior standard, it did appear nearly impossible for districts to prevent parent exemptions to uniform policies.  

Thankfully, at the end of the United decision, the Commissioner set forth a new standard for deciding future cases involving school uniforms.  The standard now requires parents to present evidence of a bona fide religious or philosophical belief, and allows the board to consider any evidence questioning the sincerity of that belief.  If the parents appeal the board’s decision regarding the exemption, the Commissioner cannot substitute his own judgment unless there is not any substantial evidence to support the board’s decision.  This new standard should give school districts a better ability to weed out questionable objections to uniform policies, though there have been no subsequent Commissioner decisions enforcing this new standard.

In the alternative, if a district wants to avoid the issue of uniform exceptions completely, a district may instead choose to apply what is called a “standardized dress code” policy.  A standardized dress code makes general requirements such as solid color clothing, but provides for a variety of clothing options (slacks, jeans, skirts, dresses, polo shirts, turtlenecks) and a variety of colors.  This policy, implemented by Pearland ISD, is not considered by the Commissioner to be a uniform policy because “sufficient choice is provided that it is unlikely that an observer…would conclude that the students were wearing distinctive dress that would identify them as members of a particular group.”  When a Pearland ISD parent challenged the district’s policy under the authority of § 11.162,  the Commissioner held that the regulation on uniforms did not apply to this situation, as standardized dress policies are not the same as uniform policies, and therefore no exemption based on religious or philosophical beliefs could be made.[9]

But watch out for S.L.W. on Behalf of P.W. v. Crandall Independent School District, a 2003 Commissioner decision that conflicts with Pearland.[10]  In Crandall, the Commissioner not only classified a “standardized dress code” policy as a “uniform” policy (thus allowing the parent to request an exemption), but also granted an exemption from the district’s color requirements of khaki, navy blue, and black for the student’s choice of bottoms, on the basis that the parent had a bona fide religious belief “that women are not to dress as men and that black, navy blue, and khaki are not feminine colors.”  The Pearland decision was made more recently than Crandall, but there is no indication that the Commissioner has rejected Crandall.  This leaves open the question of whether a district may truly be able to avoid parent exemptions all together by adopting a “standardized dress” policy.

So What Do We Take Away from All of This?

• Remain content-neutral when prohibiting logos (don’t only ban logos or messages you don’t like);
• If you want to ban a particular item, like the Confederate flag, make sure that you can demonstrate there is a reasonable expectation that allowing that type of expression would result in disruption;
• Carefully evaluate religious exemptions from dress code requirements, and be prepared to defend any restrictions you place on exemptions;
• Try using “standardized dress codes” as an alternative to school uniforms, in order to try to avoid the issue of parents requesting uniform exemptions.

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