Free Speech 7: Dress Codes

Although public schools must respect students’ constitutional right to freedom of expression, the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit have determined that schools may place certain limits on students' free speech in the school setting. This includes limits on the clothing that students can wear to school. For example, First Amendment free speech may not protect a student who wears items with words, images, or symbols that:

• are vulgar or lewd. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  

• threaten violence. See Elonis v. United States, 575 U. S. 723, 733 (2015).

• promote illegal conduct. See Morse v. Frederick, 551 U.S. 393 (2007).

• are likely to cause serious disruption at school or violate other students’ rights. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734, 735 (8th Cir. 2009).

However, it appears that public school students in the states covered by the U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota), are unlikely to receive governmental interference with their hairstyles. 

In Torvik v. Decorah Community School District, two male students appealed a school district regulation requiring all male school students to conform their hairstyle to certain approved standards. See Torvik v. Decorah Cmty. Sch., 453 F.2d 779, 779 (8th Cir. 1972). Finding that the regulation violated the student’s right to free expression, the Eighth Circuit wrote:

    “A regulation governing the hairstyle of students cannot be sustained simply because it is promulgated by school authorities. Tinker v. Des Moines Independent Cmty School Dist., 393 U.S. 503 (1969). This approach would otherwise condone the prohibiting of any recognized constitutional right. Every individual enjoys the liberty to wear the hairstyle he chooses. Before the state can intrude into recognized areas of privacy and freedom there must exist some rational basis to justify paternal control. This court recently found that no rational relation exists between a similar school regulation and the educational goals and processes of school administration.”