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Decision No. 12,954

Appeal of PAUL PARSONS, on behalf of his son ALAN, from action of the Board of Education of the Mexico Central School District regarding its dress code.

Decision No. 12,954

June 30, 1993

Mowry & Mowry, attorneys for respondent, Michael Mowry, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from his son's suspension from school for violating respondent's dress code. The appeal is dismissed.

Petitioner's son Alan is a senior at Mexico High School. On December 14, 1992, he was suspended from school for three days for refusing to change a T-shirt which allegedly violated the school dress code, for using vulgar language and for leaving the principal's office without permission. The T-shirt in question had the words "BIG JOHNSON - World's Largest Revolvers" on the front with a picture of a man holding a large revolver with a woman at his arm. The back of the T-shirt also had the words "BIG JOHNSON REVOLVERS" with a picture of a boy holding a large revolver to the head of another boy with a woman standing behind them near a motorcycle. On the back of the T-shirt were inscribed the words "featuring the patented BIG JOHNSON SAFETY guaranteed to prevent premature firing" and "YOU NEVER SHOOT BLANKS WHEN YOU'RE PACKIN' A BIG JOHNSON".

According to the record, when Alan appeared in school on December 14th wearing the "Johnson T-shirt" described above, the principal directed him to either change it or cover it up. Apparently, he did neither. Instead, petitioner allegedly shouted profanities and left the principal's office without permission. This resulted in a two-day suspension. When told to remove his T-shirt a second time, Alan refused and received another day's suspension. On December 23, 1992, Alan was assigned to in-house suspension for wearing a different T-shirt, once again, in violation of respondent's dress code.

That code provides in pertinent part:

Articles of clothing that are not appropriate will not be allowed in school; this includes any reference to alcohol and drugs, comments/illustrations that are sexual in nature or considered to be obscene or in bad taste. Any student in violation will be required to change these clothes. Continued violations will result in more serious consequences.

Petitioner claims that his son's suspension violated his First Amendment right to freedom of expression. Petitioner seeks an order prohibiting respondent from questioning student attire that is neither vulgar, racist, disruptive of the educational process, nor contains nudity. Petitioner also asks the Commissioner to direct respondent to remove from his son's record any reference to suspensions or absences that resulted from his wearing of the T-shirts in question.

Respondent asserts its authority to prohibit students from wearing "the Johnson T-shirts" to school because they impact negatively on the learning environment and are demeaning to both male and female students. Respondent argues that it is within its discretion to ban such attire, based on its overriding interest in teaching students socially appropriate behavior.

Students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate (Tinker v. Des Moines Independent CSD, 393 US 503, 21 L Ed2d 731, 89 S. Ct. 733). However, the right of free speech is not absolute and ". . . must be balanced against society's countervailing interest in teaching students the boundaries of socially acceptable behavior" (Bethel School District v. Fraser, 478 US 675 at 681, 92 L Ed2d 549, 560, 106 S. Ct. 3186 [1986]). In Bethel v. Fraser, id., the United States Supreme Court recognized the role of the public schools to

inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation (Id. 478 US at 681).

The Mexico Central School District ("respondent") states that its mission, in relevant part, is to

enhance the social, emotional and cognitive development of each student. The role of the school is to impart practical knowledge and, in cooperation with the home and community, to assist the child with his intellectual, social, cultural, emotional, physical and moral growth. . .

The Mexico Central School Board adopted a dress code consistent with the goals reflected in this mission.

As the Bethel court recognized, the First Amendment does not prevent school officials from determining that ". . . to permit vulgar and lewd speech would undermine the school's basic educational mission" (Bethel v. Fraser, 478 US at 685). In essence, the Bethel court found lewd and offensive speech in the schoolhouse to be contrary to its central mission as well as disruptive to the educational process. In addressing a public school's authority to impose sanctions upon students who utter lewd and indecent speech, the Supreme Court distinguished political expression from obscene, indecent or profane language, and concluded that unlike political expression, such words "offend for the same reasons that obscenity offends" and described

such utterances [as having]. . . no essential part of any exposition of ideas, and. . . of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality (Bethel v. Fraser, id., at 685).

In addition to distinguishing political expression from language it considered vulgar and indecent, the Bethel court upheld the authority of a school district to sanction a student for a campaign speech he made on behalf of another student whom he described in terms of elaborate and graphic sexual metaphors. Thus, as a matter of constitutional law, the United States Supreme Court not only recognized the authority of the public schools to ban speech considered to be lewd or offensive, but also recognized the authority of the school board to ban such speech even when it might otherwise have been protected as "political expression."

Since no one can argue that this case involves political expression, the only remaining question is whether respondent properly concluded that the T-shirt in question was "vulgar or offensive." Despite petitioner's argument that the T-shirts are neither, the term "johnson" is defined in the Oxford English Dictionary, 2nd Ed., as a slang word meaning "penis." As such, it takes little imagination to view the T-shirts in question as portraying phallic symbols and speech consisting of sexual metaphors. Accordingly, there is no basis to find that Alan's suspension for continuing to wear the offending T-shirt after repeated warnings and requests that he cover it or change it infringed upon his First Amendment right to freedom of expression.

Although petitioner challenges the dress code as applied to the facts of this case, a discussion of the facial viability of the dress code is, nonetheless, warranted. Respondent's code bars attire considered to be obscene, as well as clothing that displays "comments or illustrations that are sexual in nature," that makes "any reference to alcohol and drugs" in addition to clothing considered to be "in bad taste." While the standard of "bad taste" is problematic because it is both vague and highly subjective, barring clothing that refers to alcohol and drugs or displays comments or illustrations that are sexual in nature is overbroad. Does the code intend to bar T-shirts with anti-drug or alcohol logos? Could it be used to bar illustrations that may be considered works of art? According to the plain language of the policy, it would appear so.

While the United States Supreme Court recognizes the authority of the public schools to censor a student's words and ideas when they bear the school's imprimatur or involve a school-sponsored activity (see, Hazelwood School District v. Kuhlmeier, 484 US 260, 108 S. Ct. 562, 98 L Ed2d 592), the rationale in the Hazelwood case does not extend to school districts the authority to regulate student attire. Nor can the district rely on the Bethel case which recognizes the authority of the public schools to regulate speech which is "lewd or offensive" to justify further regulation of student dress that does not meet that standard. Although the Commissioner has recognized the authority of a school board to regulate student dress when it threatens health and safety (Matter of Scally, 16 Ed Dept Rep 243; Matter of Johnson and Watkins, 9 Ed Dept Rep 14) or otherwise disrupts the educational process (Tinker v. Des Moines Independent CSD, 393 US 503), such standards are not incorporated into respondent's dress code. Thus, to the extent respondent's dress code seeks to regulate student attire that displays messages that are neither lewd nor offensive, it must be able to demonstrate that the wearing of such attire causes either a "substantial disruption or material interference" with the work or discipline of the school, constitutes a health or safety hazard, or otherwise infringes upon the rights of others (Tinker v. Des Moines Community School District, 393 US 503, 509).

Commissioner's regulations require that every school district provide parents and students annually with a copy of its discipline code. Since the code must be developed locally in consultation with teachers, administrators, other school service professionals, students and parents (8 NYCRR 100.2[1][ii]), respondent is urged to meet with the appropriate constituency groups to review its dress code in view of the relevant legal standards. Finally, while the record before me does not indicate whether respondent's dress code was developed after consultation with the required groups, this case exemplifies the importance of the process. By supporting a forum for discussion between teachers, students and parents on the subject of socially appropriate behavior and freedom of expression, respondent will further its overall mission and diminish the need for such policies.