The All Inclusive Censorial Dress Policy Affair

The school district dress code, enacted in Spring 2005, details what students will wear, down to the color and the number of buttons on the required polo shirts; it also bans any special button or insignia, any picture, logo, or ribbon or other item worn on or over any part of the uniform except for the school name or logo. Community members had complained that students were being punished for infractions such as wearing belts with too many holes or pants with too many pockets, and some parents had passed out more than two hundred small, black armbands for a day of protest held on 06 Oct 2006. Students who wished to dissent were encouraged to wear the bands on their wrists or other parts of their arms not covered by the uniforms; the policy specifically allows personal jewelry and similar items as long as they do not overlap any part of the uniform.

This point bears repeating: the policy specifically allows personal jewelry and similar items as long as they do not overlap any part of the uniform.

According to the lawsuit before the courts as of this writing, most students chose not to wear the bands or to take them off after they heard administrators were suspending students who participated in the protest, and that at least twenty students in total were suspended at the junior and senior high schools for wearing the bands.

Three of the students who were suspended, Chris Lowry, Colton Dougan, and Micheal Joseph, filed a suit with the assistance of the American Civil Liberties Union of Arkansas. Just a few days after the protest they won a preliminary injunction that barred the district from punishing students who wore similar armbands, and which ordered the school system to clear the incident from the plaintiffs' disciplinary records. On a separate occasion, Mr. Lowry was suspended for passing out, before school started, a flier opposing the uniform policy, that had not been pre-approved by Principal Henry Webb. On this day, U.S. District Judge J. Leon Holmes ruled that the uniform policy was not unconstitutional on its face, and also ruled that although the literature policy probably would be found unconstitutional, the existing precedent on the matter was not clear. Therefore, the court concluded that the individual school board members were entitled to qualified immunity from the students' claims. He refused, however, to dismiss Principal Webb or District Superintendent Charles Daniel Knight, finding: "there is evidence that discipline was imposed to suppress a particular viewpoint." The trial on the remaining claims is scheduled to begin the week of 10 Sep.

Here are the two contentions upon which the defense is basing its case.

First: Tinker should not apply in this case because the Supreme Court in Tinker specifically excluded dress codes from its ruling. The majority opinion in Tinker notes that the case "does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment."

Secondly: Assistant Superintendent Ivy Lincoln acknowledged that the armbands on their own probably would not have been considered a dress code violation. But he said that the students, by publicly asserting that the bands were in protest of the dress code, violated the code's "catch all" provision, which forbids "any attempt to defeat the uniformity intended by this policy." He is quoted: "That's what's against the rule, is the protest against the policy using apparel."

Here's where things get bizarre: the dress code specifically allows for personal expression that does not intrude on the uniform, unless that expression dissents from imposition of the uniform.

To nail down the coffin lid on what appears very obviously to me to be censorship and petty, dictatorial oppression, Lincoln also said that Lowry's fliers protesting the dress code violated the policy because "it, too, would have been an attempt to defeat the uniformity intended by the policy."

Do you understand that? He stated that a protest that did not involve the use of clothing in any way, shape, or form, was also in violation of the clothing policy.

Basically, what Watson Chapel School District did was to implement a dress code that it is now also using to prohibit speech critical of the dress code, even though that speech might be expressed verbally or in writing.

This is totally stupid. And Lincoln cried about the big bad ACLU trying to expand Tinker so it would cover dress codes as well as other modes of expression, while Watson Chapel had clearly and presently implemented a dress code it sees as prohibiting core political speech.

There was one thing Lincoln said that could otherwise mitigate this abysmal stupidity; he noted that students are free to lodge protests through the district's complaint process, to complain to school officials, or to protest outside of school hours. This last point simply means that the Watson Chapel schools are de facto speech free zones subject to restrictions that are unreasonable as to time, place, or manner. The bone I have to pick about his lame-brained defense, though, is this: if you do not respect the student body enough to permit them to air their viewpoints in a non-disruptive fashion, how much credibility are you going to give them when they are forced to use your complaints process? And why is it, if those complaint processes are in place, the parents felt they had a need to support a student protest against the policy? And! -- big kicker here folks! -- wouldn't any complaint filed through either process be summarily dismissed under the dress code that prohibits any effort to "defeat the uniformity intended by the policy."

Last word on this one goes to Mark Goodman, executive director at the Student Press Law Center, who, in response to a comment by Licoln that the ACLU needs to read Tinker, said that the school district needs "some remedial education about the Constitution". He also called Lincoln's statements "an amazing admission on the school's part". He is further quoted:

By acknowledging that the only reason they punished the students was because of the message their armbands conveyed, these school officials are confessing to unconstitutional viewpoint censorship. I think they've just lost their case. The simple fact is that the First Amendment protects the right of students in our public schools to publicly object to school policies, including those about dress codes, as long as they do so in a non-disruptive way.