I remember my first year of high school very fondly, just like it was yesterday. I had a good friend with a mohawk. We were in a couple of classes together. He loved heavy metal music and was against social conformity. His choice of hair style was his way of expressing himself; he wanted to be different, unique. Another good friend of mine had long hair. The fact that both friends had different hair styles from many others in the school was (at least to me) a beautiful thing. I still think this way. And to this day, I still wonder if any teacher or school administrator ever asked either of my friends to change their hairstyles.

In 1969, several high school students, aged 13 to 16, wore black armbands to protest the Vietnam War. Concerned that the black armbands might cause a disturbance among school students, the school administration imposed a ban on wearing these armbands and subsequently suspended five students who chose to ignore the ban. The students’ parents filed a federal lawsuit against the school on the grounds that the school’s policy violated freedom of speech under the First Amendment. The case went all the way up to the Supreme Court of the United States.

This case, commonly referred to as “Tinker,” is a famous and widely-cited constitutional law case: It is mandatory reading in law school. In virtually every lawsuit involving students, schools, and free speech, the parties will cite this case in support of their respective positions.

So what happened in Tinker? Based on the facts presented, the Court could not find any indication that the armbands disrupted the school environment. Unless the armbands would cause a disturbance in the school or violate the rights of others, the Court held that the school could not restrict a student’s right to free speech under the First Amendment. Perhaps the Court’s most famous statement is the following:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

None of this is to say that children are free to say or dress what they please. Tinker was about the right of students to express their political views and under what circumstances school administrators may restrict the right of students to express themselves. Over the years, numerous First Amendment cases based on different facts have been litigated. For example, if a student expressed his political views using profane language, the courts have agreed that the school administration may prohibit offensive, vulgar, and obscene speech, and the school may discipline the student (see, e.g., Bethel v. Fraser).

But what about students’ First Amendment rights to wear tattoos (Stephenson v. Davenport Community School District), facial piercings, and unique hair styles (Massie v. Henry; King v. Saddleback) in school? Perhaps not surprisingly, the courts struggle with these issues, and not all courts agree with other courts. Indeed, as fashion changes over time, the courts must adapt and recognize the rights of young people while appreciating the latest fashion trends. The courts are mindful of a particular paragraph in the Tinker decision:

“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

Thus, when attorneys get into an intellectual argument about student freedom of speech, attorneys must choose their words wisely. They must answer hard questions: Is it political speech? Is it obscene? Will the speech disrupt the school environment? Is it speech that will encourage violence? These are not easy questions.

When a student wears a shirt that reads, “Gay Pride,” is it political or offensive? How about a shirt that reads “Be Happy, Not Gay“? Political, offensive, disruptive? When a student wears a shirt that supports the National Rifle Association that contains a photograph of a gun, will this encourage violence? When a student wears a removable tattoo on the back of her exposed neck that says, “I heart Obama,” is it political or obscene? When a student wears an anti-abortion sweatshirt with a photograph of a dead fetus, is it political, obscene, or both? Will a photo of a dead fetus likely to incite anger among students and teachers and cause disruption in the school? Despite all the years that have passed since 1969, we are still struggling with the same questions.

With regard to First Amendment cases involving students who have tattoos, rainbow-colored hair, mohawks, or multiple facial piercings, I often wonder how the New Jersey courts (or any court in any jurisdiction) will decide. Political? Offensive? Obscene? None of them above? There are so many variables and different ways of looking at the same issues. The outcome of any case will often depend on the particular facts and who is the judge. Sometimes, the court will “punt” the hard questions and decide on the easier questions. For example, rather than determining whether a student may wear tattoos in school under the First Amendment, it may be easier for the court to decide whether the school’s policy is vague. If it is, then the student may win the case — unless, of course, the school appeals or changes its policy. Sometimes, the court never has an opportunity to answer the question because the case is settled out of court.

In Fighting Oppressive School Dress Codes, an attorney writes about how the courts have dealt with tattoos, piercings, and hair color. That article is an excellent starting point for anyone who wants to research these issues further. For a more philosophical and sociological point of view, I highly recommend Gowri Ramachandran’s paper, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing.

As for the two friends I mentioned at the beginning of this post? I found them again almost eighteen years later. Neither has long hair or a mohawk any longer. And they’ve done very well for themselves. I haven’t asked them if the school administrators requested that they change their hairstyles. Maybe I’ll ask them someday. In the meantime, I thank them for giving me the inspiration to write this article. And to all those who choose to wear unique hair styles for personal, social, or political reasons, I say to them: rock on.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Related posts:

1. Developing Effective Anti-Bullying Programs
2. Cyberbullying and Freedom of Speech
3. Food Allergies and Special Dietary Needs in School
4. School Bullying, Intimidation, & Harassment
5. NJ Anti-Bullying Bill of Rights Act – Part II
6. Off-campus Conduct, Nose Jewelry, and Sexting

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