The U.S. Supreme Court has held that individuals can and do wear clothing to express ideas and opinions. The authority of public schools to regulate the types of clothing worn by its students therefore touches upon First Amendment freedom of speech rights. In its landmark 1969 decision, Tinker v. Des Moines Independent School District (393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733, 1969), the court struck down a school district's ban on the wearing of black armbands to protest the Vietnam War. Central to the court’s decision was the fact that the policy was “viewpoint-specific” and did not ban other clothing that expressed controversial views, including Iron Crosses, often seen as symbols of Hitler and the Nazis. This aspect of the decision is consistent with a number of later Supreme Court decisions signaling that viewpoint-specific dress restrictions violate the First Amendment.
In general, the Tinker case established the principle that, while maintenance of order and promotion of acceptable standards of classroom conduct are synonymous with ensuring an adequate education system, school officials do not have free reign to abridge students' constitutional rights. In the aftermath of Tinker, federal courts have been asked to address numerous cases involving school uniform and dress code policies. In some cases, these cases have narrowed the application of First Amendment protections to student dress.
The most recent case was decided in March 2001 when the U.S. Court of Appeals for the Sixth Circuit issued a ruling regarding a Kentucky high school’s dress code (Castorina v. Madison County School Board, 246 F.3d 536, U.S. Ct. App. 6th Circuit). The court indicated that several criteria were crucial in determining whether school policy interferes with student rights under the Constitution. Those criteria include:
1. If the school policy appears to be viewpoint specific (as in the Tinker case), the courts will apply a higher level of scrutiny to a school’s proposed regulation.
2. If the disputed clothing is obscene, vulgar or worn in a manner that disrupts school activity or causes unrest during the school day, the courts will allow school districts more discretion in prohibiting the clothing.
3. If the student speech/dress could be considered to be “school-sponsored,” the courts will allow school districts more discretion in prohibiting the clothing. For instance, school officials could regulate school-sponsored activities such as publications, theatrical productions and other conduct related to the school's curriculum if their actions are reasonably related to legitimate pedagogical concerns.
The Supreme Court has not yet addressed the issue of school uniforms per se. As a result, this issue is a matter of first impression for all circuit courts of appeals and most federal and state courts. In the most recent case, decided in January 2001, the U.S. Court of Appeals for the Fifth Circuit upheld the constitutionality of a mandatory public school uniform policy in a Louisiana school district (Canady v. Bossier Parish School Board, 240 F.3d 437, U.S. Ct. App. 6th Circuit). The court held that, “the school board's uniform policy will pass constitutional scrutiny if it furthers an important or substantial government interest; if the interest is unrelated to the suppression of student expression; and if the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.”