Decision No. 13,034

(November 2, 1993)

SOBOL, Commissioner.--Petitioner appeals her son's suspension from school for violating respondent's dress code and for insubordination. The appeal must be sustained in part.

Petitioner's son, John, is a student at Port Jervis High School. On June 5, 1992, he was suspended for five days for refusing to remove his Port Jervis baseball cap in school, in violation of respondent's dress code. The dress code specifically prohibits students from wearing "hats, headgear or any head coverings (except for medical or religious reasons...)" within the school building, between the hours of 7 a.m. and 4 p.m. According to the record, the student, while walking from the cafeteria to his locker before the start of classes, was confronted by the superintendent who asked him to remove his baseball cap and proceed to his classroom. The student refused and was suspended. This appeal ensued.

Petitioner alleges that respondent's dress code is arbitrary and capricious and violates her son's First Amendment right to free speech. Petitioner argues that since the policy furthers no legitimate interest, respondent's dress code should be set aside and her son's record expunged.

Respondent contends that its dress code is appropriate and does not violate students' free speech rights. Respondent also asserts that its imposition of a five-day suspension was proper since the student's refusal to follow the superintendent's directive to remove his hat and proceed to his classroom constituted insubordination.

As a preliminary matter, I note that this appeal was brought directly to the Commissioner without the benefit of the board's review. Although Education Law '3214 does not require exhaustion of administrative remedies in student suspensions of five days or less, petitioner is encouraged to seek the board's review in such cases, particularly when challenging a school board policy.

With respect to the merits, petitioner relies on the United States Supreme Court decision in Tinker v. Des Moines Independent CSD, 393 US 503, 21 LEd 2d 731, 89 S.Ct. 733., to support her argument that her son has a constitutional right to wear his hat on school grounds. Although Tinker recognizes that students do not shed their constitutional rights to freedom of speech at the schoolhouse gate, that case involved the rights of students to wear armbands to school as symbolic speech, in silent protest of the Vietnam War. Recognizing the students' rights to express their opinion in a manner that neither disrupted the operations of the school nor impinged upon the rights of others, the Tinker court found that the disciplinary action taken violated the students' constitutional rights to free speech.

Petitioner's reliance on Tinker and the United States Constitution is misplaced. Unlike the facts in Tinker, there is no evidence in this record that petitioner's son's hat is symbolic speech representing a statement of either political or religious expression (see, West Virginia Board of Education v. Barnette, 319 US 624, 87 L.Ed. 1628; Zorach v. Clauson, 343 US 306, 96 L.Ed 954). Consequently, I find no basis to conclude that petitioner's son's right to wear a hat in school is constitutionally based.

Nonetheless, to be upheld, a school dress code must address a legitimate educational concern, such as teaching students socially appropriate behavior, the elimination of potential health or safety hazards, the integrity of the educational process or the avoidance of school violence. A school board may not regulate a student's appearance where fashion or taste is the sole criterion (id.).

According to respondent, its rationale for prohibiting hats in school is based on its desire to regulate "deportment and decorum within its buildings." In defending its policy, respondent relies on a 1970 Commissioner's decision which upheld a dress code that regulated headgear worn by students when "seated in a classroom during actual instruction" (Matter of Jimenez, 9 Ed Dept Rep 172). Since respondent's policy extends to situations outside the classroom and there is no basis to automatically extend a 1970 ruling beyond the facts of the case in question, respondent's reliance of Jimenez to situations outside the classroom is unfounded. Whether the underlying rationale in the Jimenez ruling remains applicable today depends upon whether the wearing of hats in class continues to be viewed as disrespectful and improper, when judged against today's community standards.

Since that question is best answered at the local level, I will refrain from deciding it in the absence of evidence regarding "the community's standard of deportment and decorum." To establish whether the removal of hats in the classroom reflects current community standards or proper decorum and deportment, the board needs to proceed, if it has not done so already, to formally adopt its dress code as part of its written policy on school conduct and discipline, which must be developed locally in consultation with teachers, administrators, other school service professionals, students and parents (8 NYCRR 100.2(l)). Assuming that respondent has done so already, the regulation also requires respondent to review its policies at least annually. If respondent has not done so this year, respondent should initiate such a review as soon as practicable, to not only meet its legal obligation, but to ascertain -- with the benefit of input from its school community, including parents and students -- whether its policy in fact reflects today's community standards on decorum and deportment.

In reviewing the policy, I would urge respondent and the community to consider the value of such a rule, in view of the competing and conflicting messages our society transmits to young people on the wearing of hats. At one extreme, one can hardly turn a page in a magazine that does not promote the wearing of hats, both in and out of doors as the height of youthful fashion. At the other, we hold onto the traditional notion that wearing hats indoors is a symbol of disrespect or bad manners. Moreover, I urge the community and board to consider the effect of such a policy in view of the needs of adolescents to assert their identities and independence, which are often expressed through clothing. The value of the review process in this case is to ensure that respondent's policy, whatever it may be, reflects the community's values which form the basis for respondent's policy in the first place.

Although the propriety of wearing hats in the classroom depends upon prevailing community values, I am unable to find in the record any legitimate basis for extending the prohibition against the wearing of hats to the hallways. While a board of education has broad discretion in deciding what is educationally appropriate, a rule that transcends the legitimate purpose for which it was created must be set aside. Although adults may not approve of the latest fashion among youth, which includes the wearing of caps both in and out of doors, in the absence of a sound educational basis, school authorities may not be free to prohibit the wearing of certain student attire outside the classroom (Appeal of Parsons, 32 Ed Dept Rep 672; Matter of Scally, 16 id. 243; Matter of Jimenez, 9 id. 172; Matter of Johnson and Watkins, 9 id. 14; Matter of Myers, 9 id. 8). To the extent respondent's policy extends its prohibition beyond the classroom, its otherwise legitimate concern for decorum and deportment begins to pale, particularly in view of society's acceptance of hats as an integral part of youthful attire. Absent the display of vulgar and indecent language, the imposition of health risks, disruption or other compelling educational concerns, students should be free to wear the attire they choose outside the classroom. Since respondent's rule, as applied to student attire outside the classroom, is both overbroad and devoid of legitimate purpose, it must be set aside.

Petitioner also requests that her son's record of suspension for violating respondent's dress code be expunged. To the extent petitioner's son was suspended solely for violating a school rule now declared a nullity, the record of his suspension must be expunged. However, to the extent he ignored the superintendent's directives, his actions constitute insubordination and may form the basis for disciplinary action under Education Law '3214. While students maintain an absolute right to challenge the rule in question, the administration, pursuant to Education Law '3214, is not precluded from suspending them for refusing to follow their directives. Since this student's five-day suspension was based both on his violation of a school rule, which has been declared null and void, and on insubordination, respondent is directed to delete from this student's record any part of the suspension relating to his violation of the school rule.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's policy be annulled to the extent it bars absolutely the wearing of headgear outside the classroom.

IT IS FURTHER ORDERED that any record of this student's suspension, based on a violation of that portion of respondent's dress code declared null and void, be expunged.

IT IS FURTHER ORDERED that respondent review its dress code in a manner consistent with 8 NYCRR 100.2(l) to determine whether it accurately reflects community values on decorum and deportment and revise it, if necessary, in a manner consistent with this decision.

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