Perhaps you heard that the Arkansas State Legislature has banned students from wearing “clothing that exposes underwear, buttocks, or the breast of a female” at all school-related functions.
So: Can they do that?
Fire up the Free Speech Wayback Machine to 1969. In Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that school authorities could not censor student expression “unless they could reasonably forecast that the student expression would cause substantial disruption or material interference with school activities or would invade the rights of others” (via First Amendment Center).
In Tinker, students were punished for wearing black armbands as a form of political protest, which the court found unconstitutional.
What’s interesting about this precedent is it provides fuel for arguments for and against school dress codes. While the Court overturned the school’s actions, the decision specified that “(t)he problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style or deportment.”
Since then, courts have applied a two-prong test to restrictions on student clothing:
- Does the student intend to express a specific meaning?
- Is a reasonable observer going to understand the student’s meaning?
Which brings us to the Baggy Pants Battle In The ABQ that was Bivens v. Albuquerque Public Schools, in which the judge ruled that a drooping waistband did not convey sufficient content to qualify as protected speech.
Check out NCAC’s primer on student free expression, and you’ll see that dress codes often run afoul when they discriminate between genders and ethnicities…for instance banning male students from wearing earrings while allowing females. The new Arkansas law attempts to cover that base by specifying the rule “shall not be enforced in a manner that discriminates against a student on the basis of his or her race, color, religion, sex, disability or national origin.” Except, of course, that the bill already singles out women on the matter of upper-body exposure…
When a similar bill was proposed in Florida two years ago, the state NAACP charter alleged that the rule, by its very nature, was directed at black males and therefore discriminatory (and one more way to push young black men into the criminal justice system).
The Arkansas legislature says the bill is necessary to maintain focus during class and to avoid violent confrontations (though no specific examples of violence over droopy clothes have yet to surface). Partial nudity in school is a reasonable cause for concern, but in the enforcement we’ll see if the restrictions are overly broad or only selectively enforced to target students of color.
The answer to Can They Do That? is “yes”, for now.