September 15, 1988
Mr. Rodney Freeman
Attorney at Law
P.O. Box 176
Huron, South Dakota 57350
Official Opinion No. 88-40
School dress code
Dear Mr. Freeman:
On behalf of the Lennox School District 41-4, you have requested my official opinion regarding a wearing apparel policy adopted by the District. The policy provides:
WEARING APPAREL POLICY
Students attending any of the schools in Lennox School District 41-4 will not be allowed to wear any articles of clothing which convey any message of profanity, of drugs or alcohol, are sexually suggestive, or display racial slurs.
You provide the following facts:
FACTS:
The Board of Education adopted this policy on March 28, 1988, after two public hearings were held on the policy, those being March 9, 1988 and March 28, 1988. At the meetings, the Board of Education received overwhelming support of the patrons of the District for such a policy but there are members of the public who are dissatisfied with the policy, feeling that it infringes upon their constitutional right of freedom of expression.
In fact, one parent has advised the Board of Education and administration that he will send his child to elementary school next year with t-shirt or other wearing apparel that displays beer advertisements and has basically dared the District to enforce the policy.
The District feels that such a policy is absolutely necessary and mandated because of the District's deep concern over the welfare of the youth in the District, and the call to action by the President of the United States, the Governor of South Dakota and the mandate from the Legislature to carry on programs that will ensure drug free schools. To permit students to wear clothing that displays beer or other alcoholic beverage advertisement is contrary to the mandates set forth above and contradicts the District's efforts to ensure freedom from drug abuse for the District's children.
Based upon that policy and those facts, you ask whether the District has authority to adopt and enforce the indicated policy.
DISCUSSION:
Hair and dress code controversies and litigation consumed vast amounts of time and attention of educators, attorneys, and judges during the 1960's. According to Larry D. Bartlett, J.D. PhD, Assistant Professor of Educational Administration, University of Iowa, in a commentary entitled "Hair and Dress Codes Revisited" 33 Ed.L.Rep. 7 (1986), by 1974 the number of reported court decisions involving hair styles alone had reached 150. Unfortunately, as Professor Bartlett notes, no conclusive results were achieved on a national level. The vast bulk of these decisions relate to hair style requirements in various elementary and secondary dress codes. Very few dealt with the issue of clothing.
There appear to be no South Dakota Supreme Court cases regarding this issue; however, there are some general principles of South Dakota law that are applicable to the question. School boards have general authority to control and manage the schools--SDCL 13-8-39. Control and management by the boards is subject to supervision by the State Superintendent--SDCL 13-3-25 and the courts--SDCL ch. 13-46. SDCL ch. 13-32 grants authority to school boards and other school officials to discipline students. This discipline may involve suspension or expulsion from school pursuant to rules adopted by the State Board of Education--SDCL 13-32-4 and can include physical punishment--SDCL 13-32-2. In addition, any person, including pupils, who disturbs a school is guilty of a crime--SDCL 13-32-6. Accordingly, I believe there is ample authority for school boards to adopt policies regulating student conduct and dress codes. The question then becomes whether the Lennox School Board has exercised this authority in a manner consistent with the guarantees of freedom of speech and expression found in both the State and Federal Constitutions.
Since the South Dakota Supreme Court has not spoken on the matter and the United States Supreme Court has declined to accept jurisdiction in any of the school dress code cases, the controlling law on this issue can vary widely, depending upon the geographic location. South Dakota is located in the Eighth Federal Judicial Circuit and thus falls within the reach of opinions of the Eighth Federal Circuit Court of Appeals. In a case entitled Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971) the Eighth Circuit expressly concluded that dress codes, as applied to hair style regulations, were unconstitutional since the right of personal appearance was determined to be a "fundamental" right. There are numerous other federal circuit courts of appeal that have come to contrary conclusions. In Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) the Fifth Circuit ruled that there was no legal basis for bringing federal court actions based upon hair style regulation and that they should be dismissed by the lower courts for failure to state a claim for which relief can be granted. As noted above, however, that is not the case in the Eighth Circuit.
Clothing regulations have not generated nearly as much federal litigation and appear, even in the Eighth Circuit, more likely to be upheld than are hair style regulations. Apparently, this is because clothing is not a permanent part of the student, as is hair, and may be changed to reflect that student's personal view when the student is no longer at school. In Wallace v. Ford, 346 F.Supp. 156 (E.Dist.Ark. 1972) the court found that it was appropriate for schools to prohibit suggestive or immodest clothing in school. Review of the existing clothing cases reveals that there is a consistent requirement that the challenged regulation relate to disturbance of the school body, safety of the student, or health factors within the school environment. See e.g., Fowler v. Williamson, 448 F.Supp. 497 (W.Dist.N.C.1978); Bannister v. Paradis, 316 F.Supp. 185 (Dist.N.H.1970) and similar cases.
The area regulated by the apparel policy set out above is the most difficult area for the government--here a school district board--to regulate. This is so, since it trenches directly upon the freedom of speech guarantees of our Constitution. In Tinker v. Des Moines, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) the United States Supreme Court clearly held that students do not lose their First Amendment freedom of expression rights upon entering a school house. In the Tinker case the expression involved opposition to this Country's involvement in the Vietnam war through the wearing of a black arm band by certain students. Of course, the expression upheld in the Tinker case would not be affected by the Wearing Apparel Policy the Lennox School Board has adopted.
While it is true that the Wearing Apparel Policy constitutes direct prior restraint upon the freedom of speech it is narrowly drawn. As concerned with the facts you present, the "speech" the school intends to prohibit relates to alcohol. In my opinion, it is particularly appropriate for the school to prohibit forms of expression which could be construed to advocate possession or use of material that may be completely illegal, such as contraband drugs, or prohibited to students of school age, such as alcohol. In addition, I believe that a school board could rationally conclude that constant reminders of prohibited items such as drugs and alcohol could be disruptive to certain individual students. Finally, since the T-shirts more likely than not portray references to commercial products, an additional basis for upholding the School Board's regulation may be found in the notion of a lessened constitutional protection for what is known as "commercial speech."
In addition to restricting commercial speech, the Lennox Wearing Apparel Policy prohibits messages which are profane, sexually suggestive, or contain racial slurs. Until quite recently, it would have been difficult to state with any certainty whether a school district could impose its standards regarding what may constitute profanity, sexual suggestion, or racial innuendo upon students. The United States Supreme Court went a long way in resolving these issues in a pair of quite recent cases. In Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 91 L.Ed.2d 549, 32 Ed.Law Rptr. 1243 (1986) the Court addressed a situation where a student had made a sexually suggestive nominating speech in a student assembly and had been disciplined for the speech. The lower court had awarded the student $278.00 in damages and $12,750.00 in costs and attorneys fees. The United States Supreme Court reversed this judgment. The Court noted that while students did have freedom to advocate unpopular and controversial views in school and in classrooms, this freedom must be balanced against society's countervailing interests in teaching students the boundaries of socially appropriate behavior. The Court stated "the schools, as instruments of the State, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech ..." In other words "the First Amendment does not prevent the school officials from determining that to permit vulgar and lewd speech such as Respondent's would undermine the school's basic educational mission."
In addition to the First Amendment claim, Mr. Fraser argued that the school policy violated Due Process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. The school had a disciplinary rule which proscribed obscene language and Mr. Fraser had been informed prior to the speech by teachers that he would be disciplined if he gave the speech. The United States Supreme Court found sufficient notice in these facts to dispose of Fraser's Due Process claim.
Even more recently in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 98 L.Ed.2d 592, 43 Ed.Law Rptr. 515 (1988), the United States Supreme Court addressed censorship of a school-sponsored newspaper by a school administrator. The Court reaffirmed its holding in Bethel and extended the school's authority to address a school newspaper. The Court indicated that a school retains the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order.
Given these recent pronouncements by the United States Supreme Court I have high confidence that the school district would ultimately prevail should a suit be brought resisting enforcement of the policy set out herein.
Accordingly, it is my opinion that the Lennox School District Board may constitutionally regulate students' wearing apparel in the school setting in the manner indicated by the Wearing Apparel Policy set out above. As with all school rules, this rule may be enforced by disciplinary action including suspension or expulsion from school provided the rule itself or its location in the student handbook gives notice of the possible penalties. In addition, the Due Process interests protected by the State and Federal Constitutions and set out in the State Board of Education's regulations (ARSD art. 24:07) must be followed.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
