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9th Circuit OKs Nev. district's dress code

By David L. Hudson Jr.
First Amendment scholar

A divided federal appeals court panel has upheld a Nevada school district’s dress code, issuing a ruling that an ACLU attorney says seeks to “eviscerate” a seminal Supreme Court opinion protecting student speech.

In 2003, the Clark County School District adopted a standard dress code for all county students. It also established a means for individual schools to create more-restrictive uniform policies. Many schools in the district adopted such uniform policies.

Several students — including Kimberly Jacobs from Liberty High School, Shane Dresser from Jim Bridger Middle School and Dwight Terry Jr. from Chaparral High School — challenged the constitutionality of their schools’ policies. All three students faced suspensions for violating the uniform codes. Jacobs, for example, was suspended because she wore shirts with printed religious messages. The Liberty High dress code required students to wear solid khaki bottoms and solid red, white or blue shirts.

School officials suspended Jacobs indefinitely on Oct. 27, 2004, after she repeatedly violated the dress code. The next day Jacobs and her father sued in federal district court. In December 2004, Jacobs and her father amended their complaint to include other students (including Dresser and Terry) who were punished by their schools for dress-code violations.

The various students and their parents alleged numerous constitutional claims, including that their First Amendment rights to free speech and free exercise of religion had been violated. In June 2005, a federal district court in Nevada rejected the bulk of the constitutional challenges to the dress codes in its opinion in Jacobs v. Clark County School District. The district court did invalidate two provisions of the code that gave principals unlimited discretion to grant exemptions from dress codes on “designated spirit days, special occasions, or special conditions” and that gave administrators the ability to grant religions exemptions. However, the district court rejected the larger free-speech and free-exercise challenges to the policies.

The plaintiffs then appealed to the 9th U.S. Circuit Court of Appeals. On May 12, a three-judge panel affirmed the lower court in a 2-1 opinion in Jacobs v. Clark County School District.

Free-speech analysis
The panel majority, in an opinion authored by Judge Michael Daly Hawkins, determined that the uniform policies should not be evaluated under the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District. In Tinker, the Court ruled that public school officials violated the First Amendment free-speech rights of several students when they suspended them for wearing black armbands. The Court in Tinker created the standard that public school officials cannot censor student expression unless they can reasonably forecast that the student expression will create a substantial disruption of school activities or invade the rights of others.

Jacobs and other plaintiffs contended the uniform policies violated their free-speech rights because the policies restricted their right to wear garb of their own choosing without establishing that such clothing would cause any type of disruption.

However, Hawkins — who was joined by Judge Richard R. Clifton to form the majority — determined that the case was better analyzed under the U.S. Supreme Court’s 1968 decision United States v. O’Brien. In O’Brien, the Court upheld the conviction of a draft-card burner and established a standard that applies when an activity involves both expression and conduct. The O’Brien test provides that a regulation is constitutional if: (1) the government has the power to pass the regulation; (2) the government has a substantial interest in the regulation; (3) the government’s interest is unrelated to the suppression of free expression; and (4) the incidental regulation on speech is not more restrictive than necessary to further the government’s interest.

Hawkins found that Tinker did not apply to the school dress-code challenges because Tinker applies only when a school regulation restricts student speech on the basis of viewpoint or perhaps content. In Tinker, the Court restricted a school policy that singled out a particular symbol (the black armband) associated with a particular viewpoint (against the Vietnam War).

According to Hawkins, “the Tinker test has only been employed when a school’s restrictions have been based, at least in part, on the particular messages students were attempting to communicate.” He determined that Tinker did not apply when a school regulation did not restrict student speech because of viewpoint or content.

Instead, Hawkins applied the O’Brien test. Both sides agreed that the school district had the power to implement regulations affecting schools. Hawkins proceeded to the next O’Brien factor, which asks whether the schools have a substantial interest in the dress-code policies. The panel accepted the school officials’ argument that the policies increase student achievement, promote safety and enhance a positive school climate.

“Indeed, it is harder to think of a government interest more important than the interest in fostering conducive learning environments for our nation’s children,” Hawkins wrote. He then analyzed whether the school district’s stated substantial interests were unrelated to the suppression of free expression. Hawkins wrote “the record is devoid of any evidence suggesting that the District’s stated goals were mere pretexts for its true purpose of preventing students from expressing their views on particular subjects.”

Hawkins relied in part on the secondary-effects doctrine, a doctrine that arose out of adult-business zoning cases. Under the secondary-effects doctrine, government regulations that seemingly target a specific type of speech are treated as content-neutral if the regulations are designed to address harmful secondary effects associated with the speech. For example, in the adult-business context valid secondary effects are decreased property values and increased crime. Hawkins reasoned that “the District’s interests are not pretexts for an underlying desire to limit free speech but, rather, are directed only at creating an educational environment free from the distractions, dangers, and disagreements that result when student clothing choices are left unrestricted.”

Finally, he reasoned that the policies did not restrict more speech than necessary, as “students are still permitted to choose what clothing to wear after school, on weekends, and at non-school functions.”

Hawkins also rejected another free-expression challenge — that the policies amounted to unconstitutional compelled speech.

Free exercise of religion
Hawkins also rejected the plaintiffs’ claims that the school district dress-code policies violated the students’ right to exercise their religious beliefs freely. He reasoned that these claims “fail for the simple reason” that the policies are valid under the U.S. Supreme Court’s 1990 decision in Employment Division v. Smith.

In Smith, the Court held that a law does not violate the free-exercise clause if it is neutral and generally applicable.

Hawkins found “no evidence in the record” that school officials passed the policy to prevent religious messages associated with any particular religious faith. The court also rejected another student’s claim that his free-exercise rights were violated when his principal refused to grant him a religious exemption from the dress code. Hawkins concluded that “he had no right under the Free Exercise Clause to a religious exemption.”

Judge Sidney R. Thomas dissented, writing that the majority’s decision “represents a substantial rewriting and undermining of the First Amendment protections afforded by Tinker.” He noted that a previous 9th Circuit decision — Chandler v. McMinnville School District (1992) — had established that student-speech cases should be evaluated under either Tinker, Bethel School District v. Fraser (1986) or Hazelwood School District v. Kuhlmeier (1988), depending on the type of speech involved. According to Thomas, “under Chandler, the analysis (of this case) must be controlled by Tinker.

“However, rather than applying the plain terms of Chandler,” Thomas wrote, “the district court and the majority have imported and imposed a new analytical framework that cannot be reconciled with Supreme Court jurisprudence, or with ours.”

Thomas also questioned whether the majority was correct in its dismissal of the free-exercise claims. He noted that this could be a case of hybrid rights — i.e., one involving free exercise as well as one or more other constitutional rights (in this case, free speech) — that could remove the case from the control of Employment Division v. Smith.

Las Vegas-based attorney Allen W. Lichtenstein, who represented the students and parents challenging the policies, said that he “absolutely” would ask the full 9th Circuit to review the decision.

“The majority tried to eviscerate the Tinker decision,” said Lichtenstein, who is general counsel for the American Civil Liberties Union of Nevada. “As Judge Thomas pointed out in his dissent, Tinker is still good law in the 9th Circuit. The biggest flaw of the majority’s decision is that students do not lose their constitutional rights at the schoolhouse gate — but that is what this decision does.

“The panel majority gave short shrift to the whole idea of student rights,” Lichtenstein said. “This case is about messages on clothing and students’ ability to express themselves.”


Are students canaries in the free-speech coal mine?

By Charles C. Haynes We can predict the future health of freedom of speech in America by looking at how public schools live up to — or fail to live up to — the First Amendment. 05.25.08

Clothing, dress codes & uniforms

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