The tension between a student’s First Amendment right to self-expression and a school official’s duty to provide a safe and undisruptive learning environment has created a national free speech debate for decades. Students argue that restrictive dress code policies are unconstitutional, as they are guaranteed the right to express themselves through fashionable clothing or jewelry under the First Amendment. School officials, in justifying the enforcement of dress code policies and the placing of restrictions on what students can wear to school, argue that dress codes are an attempt to provide an undisruptive atmosphere where learning can take place.
The most recent dress code debate to sweep national attention involves a Massachusetts high school student, who was reprimanded for wearing a T-shirt that proclaimed, “All the Cool Girls Are Lesbians.” The student, who has not been identified, was sent to the vice principal’s office and the vice principal told the student to “cover up her T-shirt and never wear it again to school because it’s political and offensive to some people.” Outraged, the student wrote a letter to Judith Flanagan Kennedy, chairwoman of the Lynn, Massachusetts School Committee and mayor of the town. In this letter, the student expressed that she was the one who felt offended, adding “the word lesbian is not inappropriate. Saying it is, is calling homosexuality inappropriate.”
Does the prohibition of an “All the Cool Girls Are Lesbians” T-shirt violate the First Amendment rights of the student in this case? Unless there is some showing that the T-shirt has materially disrupted the class, leads to fights, or poses a demonstrable risk of doing either, the school’s prohibition violates the student’s First Amendment right to self-expression. As the Supreme Court held in Tinker v. Des Moines, 393 U.S. 503 (1969), “the mere possibility that free speech might be disruptive, absent some real evidence that disruption was likely, is not sufficient to justify restricting it.”
Chairwoman Kennedy agreed with the student in this case, finding that the School Committee cannot constitutionally prohibit a student from wearing this type of T-shirt. In agreeing with the student, Kennedy recognized that while the school’s dress code policy expressly prohibits clothing that depicts weapons, drugs, alcohol or anything considered disruptive, the policy does NOT expressly mention gender issues. Kennedy sees the absence of gender issues from the dress code policy as allowing students to wear T-shirts like the one at issue in this case. In addition, the school official who prohibited the T-shirt did not provide concrete evidence that the T-shirt was disruptive to the learning environment.
In light of the recent Massachusetts incident, it remains unknown if schools can constitutionally change their dress code policies to restrict these types of T-shirts in school. If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at email@example.com or call her at 516.357.3753. **A special thanks to Hayley Dryer, a third-year law student at Benjamin N. Cardozo School of Law, for helping with this post.