• Sulema Carreón-Sánchez, Ph.D., and Phoebe Schlanger • IDRA Newsletter • August 2018
Historically, schools have exercised much discretion over setting dress codes for students. However, that discretion is balanced against several competing interests, including students’ right to free speech and right to freely exercise their religious beliefs under the U.S. Constitution. Protections against religious discrimination may also be enforced under Titles IV and IX of the Civil Rights Act of 1964 and under state laws.
The legal history of school dress codes and students’ religious freedoms is rooted primarily under First Amendment cases where students exercised their right to free speech. In the landmark case, Tinker v. Des Moines Independent Community School District (1969), several public-school students wanted to wear black armbands to express their dissatisfaction of the United States’ handling of the Vietnam War. School principals learned of the plan and adopted a policy that any student who arrived at school wearing an armband would be asked to remove it. If students refused, the school would suspend them until they agreed to come to school without an armband. As anticipated, two students, Mary Beth and Christopher Tinker, wore armbands to their schools. They refused to remove them and were suspended. The students sued.
The U.S. Supreme Court eventually heard the case and ruled that prohibiting the wearing of armbands in public school, as a form of symbolic protest, violates the students’ freedom of speech protections guaranteed by the First Amendment.
In delivering the opinion for the Supreme Court, Justice Fortas explained the need to balance Constitutional freedoms against the authority and responsibility of school officials to control conduct in their schools for the safety of the students, stating, “State-operated schools may not be enclaves of totalitarianism.”
The court quoted an earlier Supreme Court opinion in West Virginia v. Barnette (1943): “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
In 1993, Congress passed the Religious Freedom Restoration Act (RFRA). It intended to provide stronger protections for individual rights to the free exercise of religion and to have these protections apply at the federal, state and local levels. The Supreme Court, however, ruled that Congress exceeded its authority in trying to apply RFRA to states (City of Boerne v. Flores, 1997).
In response, 31 states passed similar protections, whether through enacted laws or court decisions. They are: Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington and Wisconsin (1st Amendment Partnership, 2018). Inherent within many of these laws is the right to freely wear religious attire.
Through the IDRA EAC-South, IDRA works with schools and state agencies to protect students’ civil rights in the areas of race, gender, national origin and religion. Religion equity includes the rights of religious minority students and free exercise of religion of all.
The U.S. Department of Justice, Civil Rights Division, enforces federal statutes that prohibit discrimination based on religion in public schools, among other factors. The Civil Rights Division intervened in a case brought by a Muslim girl who was told she could not wear her hijab (Hearn and United States v. Muskogee PSD, 2004). The parties eventually reached an agreement that modified the district’s policy and allowed the student to wear the hijab.
Lower courts have upheld dress codes, including mandatory uniforms, so long as these dress codes are neutral. These policies must meet three conditions:
- be intended to further an important or compelling government interest (e.g., school safety, student achievement);
- be unrelated to suppression of expression; and
- be the least restrictive means to further the government’s interest.
Generally speaking, a school dress code cannot prevent a student from expressing religious beliefs. Thus, schools should permit students to wear such items as yarmulkes, turbans and head scarves (Anti-Defamation League, 2018).
School dress codes sometimes define how long male students may wear their hair under grooming provisions. Some Native American male students have successfully sued in lower courts, asserting that they wear their hair long as part of their religious expression. Courts also have struck down schools banning rosary beads and other religious articles where the schools failed to present a compelling reason.
The role of religious activities observed and practiced in districts and public schools has been one of the most unclear, misinterpreted and misunderstood civil rights issues. All educational settings should provide a welcome, nurturing and educational setting for all students, families and communities regardless of faith or belief.
These educational surroundings should afford a sense of being welcome, valued and safe in all public schools. Public school settings should focus on offering and obtaining an equal quality education, in a religiously-neutral environment.
Existing practices vary among districts depending on the diversity of surrounding communities. The fundamental right to religious beliefs, worship and expression practices is guaranteed by the First Amendment, which should equate to school policies providing guidance on the practices and rights of students expressing and exercising their religion. Schools can take these steps to ensure they do not exceed their authority and discretion in mandating dress codes:
- Review your school dress code policy – Make sure your policy is neutral. Consider whether it is mandatory. Consider providing an opt-out provision and consult with your attorney.
- Make sure your policy is accessible and easily understood – Policies must be easily accessible (e.g. website, documents in different languages) to parents and students, and in a language that they understand.
- Involve other stakeholders – Ask your diverse parents, students, teachers and community members to help develop and/or review your policy.
The school environment should celebrate students’ culture and language while protecting their religious freedom and, furthermore, their ability to reach their educational dreams. Should your school or district need technical assistance, please contact the IDRA EAC-South or your regional equity assistance center.
Resources
1st Amendment Partnership. (2018). State Religious Freedom Restoration Acts (RFRA), map Washington, D.C.: 1st Amendment Partnership).
Anti-Defamation League. (2018). Dress Codes, web page (New York City, N.Y.: ADL).
Haynes, C.C. (2004). Accommodating Muslims in Public Schools: Where to Draw the Line (Washington, D.C.: First Amendment Center).
Haynes, C.C., Chaltain, S., Ferguson, J.E., Hudson, D.L., & Thomas, O. (2003). The First Amendment in Schools: A Guide from the First Amendment Center (Alexandria, Va.: Association for Supervision and Curriculum Development).
National Conference of State Legislatures. (2017). State Religious Freedom Restoration Acts, web page (Washington, D.C.: NCSL).
U.S. Department of Justice. (2015). Combating Religious Discrimination and Protecting Religious Freedom, webpage (Washington, D.C.: U.S. Department of Justice).
Sulema Carreón-Sánchez, Ph.D., is an IDRA senior education associate. Comments and questions may be directed to her via email at sulema.sanchez@idra.org. Phoebe Schlanger is MAEC’s senior publications editor.
[©2018, IDRA. This article originally appeared in the August 2018 IDRA Newsletter by the Intercultural Development Research Association. Permission to reproduce this article is granted provided the article is reprinted in its entirety and proper credit is given to IDRA and the author.]
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