Is it legal for a district to....

Discussion in 'General Education' started by JimG, Sep 29, 2019.

  1. JimG

    JimG Comrade

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    Is it legal for a district to prohibit students from wearing clothing that displays the Confederate flag?
     
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  3. Backroads

    Backroads Aficionado

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    Could be depending on circumstances, but likely no. In essence, the district would have to prove there is a really big issue.

    For your legal reading leisure...
     
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  4. CherryOak

    CherryOak Companion

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    It is easily argued to be incendiary. Doesn't that leave the door open for banning it? It's been a while since I took a legal course and I can't remember the guidance, but I believe that enables administrators to ban it. Hmph, now I'm curious and will research it.
     
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  5. Backroads

    Backroads Aficionado

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    They could ban it. However, it's possible a court could go overturn it.

    The link I posted mentioned other shirts and stuff that could also be incendiary even while enjoying a generally better public view. For example, if BLM t-shirts caused a ruckus, would a school district dare ban them?

    "the “heckler’s veto” is alive and well. How other kids are going to react to a provocative T-shirt can determine whether that T-shirt can be worn."
    "

    The issue isn't so much if a school could ban something but if they could defend the ban in court under local policies.
     
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  6. Tired Teacher

    Tired Teacher Comrade

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    I know here they can ban shirts (clothing) that distract others from learning. Also, anything with alcohol, cigarettes, or logos that could be seen as unsavory for students. Some are pretty obvious violations, but others could be considered distractions depending on the student population. It would be interesting to see if "BLM" or a confederate flag would be banned in certain areas. They'd be in for lawsuits though if they banned either here, I think.
     
  7. vickilyn

    vickilyn Magnifico

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    Banning images of the Confederate flag on clothing sounds very much like south of the Mason Dixon line. North of the Mason Dixon line it would get swept up in the hate mongering guidelines. Honestly, I believe that it might fly under the radar here, until someone complained about it, then all bets are off. That said, most districts draw up their dress code violations in broad enough terms that if the school found it a veiled hate threat, along with a myriad of other undesirable clothing articles, and the way they are worn, they are not allowed in school, and if said child shows up in not allowed article of clothing, the child can be sent home to change, or required to wear clothing provided by the school that takes the place of or covers what is clearly marked in the student handbook as not allowed. The key words in that very long sentence being "not allowed under dress code violations". I think the Confederate flag will live on in parts of the south, but the south, for the most part, has tried diligently to distance itself from what the flag and that war stood for. I'm in NJ and I could give you a list of things that are not allowed that range from gang affiliations, white supremacy, and hate mongering. This doesn't even start to explain attire that is considered sexually provocative, which includes things like guys jeans hanging below their buttocks with (hopefully) their underwear on full display. The list of logos that would be associated with tobacco and alcoholic beverages is extensive, and similarly not allowed. Anything that celebrates gun violence of any kind is a big no-no here.

    Yes, if the school district has written their school attire guidelines carefully, clothes displaying the Confederate flag, and oh so much more, can be prohibited as not meeting the attire guidelines for that district.
     
    Last edited: Sep 30, 2019
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  8. vickilyn

    vickilyn Magnifico

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  9. blazer

    blazer Connoisseur

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    What would be the defence for being allowed to wear it? And would that same defence stand for, let's say, a t shirt with a swastika on it?
     
  10. Backroads

    Backroads Aficionado

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    Defense would be free speech with lack of other policies and lack of heckler's veto.

    Does the school have a policy?

    Is anyone complaining?
     
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  11. vickilyn

    vickilyn Magnifico

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    The school must have a policy that is written in the dress code, which is in the student handbook that was either handed out to students on the first day of school, or more likely, is posted on the school website. OP's profile suggests that he may be teaching HS in a state in the Midwest. From what I saw in my research, there are groups saying that wearing these are "Southern Pride".
    [​IMG][​IMG]
    Limited Rights For Students to Wear Potentially Disruptive Symbology

    2013 U.S. App. LEXIS 5855 (4th Cir. March 25, 2013)

    "District Can Bar Student From Wearing Confederate Flag Shirts to School"

    If this is a HS, the same students have a tendency to want to have the flags flying from their automobiles, too.

    Nobody has to be complaining, since just wearing these shirts is disruptive in a school to many students, and I believe, staff. I'll guarantee it is covered under the "potentially disruptive symbolism" clause in the student handbook. I'm from the Midwest, and I would find it offensive and disruptive in my classroom,even here in NJ. No matter what they are calling it, for many people it will always be a symbol of white supremacy, on equal footing with KKK, and swastikas. The flag exists because part of the nation at one time thought it was fine to own people, bought and sold like livestock. It is a symbol that, for many, when displayed today, portrays the person as still believing that white people have rights that are superior to those with darker skin. When people say things like "the South shall rise again" does that mean complete with slavery, because that's what the war was all about? Don't get me started. . . as a teacher, I would be the first to want that shirt out of my classroom.
     
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  12. 3Sons

    3Sons Connoisseur

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    I would be inclined to say no, but it would be a tough legal fight. If it came up as a case, I would hope that my preferred legal stance took hold.

    Schools have pretty wide latitude in seeing rules regarding having an orderly educational environment, including banning some forms of expression (the "bong hits for Jesus" case is relevant here. I think schools quite often take this as blanket authority to ban whatever they like, despite competing precedents explicitly stating that students "do not lose their free speech rights at the schoolhouse gate." (Tinker v Des Moines).

    The way to resolve this, I think, would be to require an actual showing or real evidence that an educational disturbance is likely. Without this, it just becomes an excuse for an administrator to enact whatever ad hoc policies they like.
     
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  13. vickilyn

    vickilyn Magnifico

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    blazer, see the post above that defines the legality for putting swastikas, the Confederate flag, KKK, Gang affiliations, and more on the "disruptive symbology" list that is banned in student attire at school because it may disrupt school. At the school door, student's right of free speech are somewhat limited by how their display of certain items, symbols, may impact and distract other people. Yes, it has gone to court.
     
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  14. Linguist92021

    Linguist92021 Phenom

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    Luckily this would not even be a debate at our school because both colors red and blue are banned.
     
  15. vickilyn

    vickilyn Magnifico

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    Yes - gang affiliation, right?
     
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  16. vickilyn

    vickilyn Magnifico

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    Unfortunately for those who want to wear Confederate flag shirts, whether your sympathies lie with the North or South, the shirt will almost always elicit a response. By doing that, it is divisive. In my current school, if you showed up in that shirt, I can guarantee that I would have students telling me it was triggering them almost immediately, so the shirt would definitely not be allowed. And it doesn't have to be the students - teachers may find themselves triggered or defensive because of the shirts, which can impact learning/teaching.
     
  17. Backroads

    Backroads Aficionado

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    Still, the question is how legal is it. There's a lot of responses on district policy, which doesn't necessarily make something legal/illegal.
     
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  18. vickilyn

    vickilyn Magnifico

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    http://www.ca4.uscourts.gov/Opinions/Published/121445.P.pdf
    The short version goes that there had been racial problems in the school in the past, the school's dress code was vague, but the school had been firm and told the student what the consequences would be if the shirt was worn again, and the shirt was worn again, so the punishments were valid. This is the ruling that began the terminology of the divisive symbology, which most commonly includes swastikas, the Confederate flag, KKK, Gang affiliations, and more on the "disruptive symbology" list. The most current terminology is hate-mongering, and all of these fit into that general classification of one group displaying hate for another group by the clothes or symbols they display. It should go without saying that wearing clothing that promotes activities (smoking and drinking, drugs) that school age children can't legally use is also on the list, or one just like it.

    I could find no reference that the person who argued for their freedom of speech in 2013 pursued litigation past this court decision of 2013.

    To answer your question, within the confines of the schools and their students, disruptive symbology, hate-mongering, and other inappropriate clothing that the school district spells out can be banned from use on school property, since the school is in the business of keeping things on an even keel, and the feelings that such clothing may illicit among the student body and staff may very well get in the way of meaningful teaching/school function.
     
    Last edited: Sep 30, 2019
  19. Backroads

    Backroads Aficionado

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    This is all defending the district's right to uphold their policies. However, there is no law saying wearing such things at school are illegal without a school caring one way or the other.

    As referenced earlier, what if something else cause a ruckus? Let's say someone was wearing a religious piece of jewelry. It upset enough people the school felt it best to ban it, even in the face of religious freedom. The school might be able to defend their decision, but it doesn't make the offending item banned in all schools.
     
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  20. vickilyn

    vickilyn Magnifico

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    No ruling will be for all schools if the dress code isn't written correctly by the individual schools.

    I think that I am saying this poorly. If a school doesn't feel that they have a problem with disruptive symbology in their school, and they don't include any language about it in the dress code section of the student handbook, then they would have a much harder time telling a student that they couldn't wear this or that. I would suspect that many elementary schools are kind of vague in this department. However, a higher percentage of high schools will have carefully worded dress codes, where you will find these restrictions spelled out, or lumped together under the hate-mongering, illicit substance logos, possibly gang colors and affiliations, anything that promotes gun violence, gay bashing or derogatory comments about the LBGT community, or other items that are derogatory to any segment of the student body or staff. I'm in NJ - our schools dress codes, at the HS level, cover all of this, and more. Do I remember such a detailed list when my son was in ES? No. Was it ever mentioned? No. That said, the ES contains the MS, and I might well find that things have changed since I had a student in that building, simply because I know that the HS that receives that district has had to step up their dress code policy to address some of the issues listed above. Typically there is a trickle down effect, so younger students learn from older siblings, and trends move down the age ranges.

    If the ES/MS doesn't address it in their dress code, however, they don't get blanket coverage over the listed link. That is where can/can't begins.

    I have a question that maybe you can answer. I have never worked at a school that requires uniforms - have you? How does requiring a uniform work, since now you have banned all other clothing not on the list?
     
    Last edited: Sep 30, 2019
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  21. Backroads

    Backroads Aficionado

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    Policy, of course, but that's not the point of this.
     
  22. vickilyn

    vickilyn Magnifico

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    I rewrote the answer above - hope I didn't mangle it.
     
  23. Backroads

    Backroads Aficionado

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    Your answer is much clearer now and I agree.
     
  24. vickilyn

    vickilyn Magnifico

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    True. The court ruling, however, from 2013, would be the basis for being able to ban the jewelry in the dress code without lower courts feeling that they had to rehash the case if someone contested the ban.
     
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  25. Backroads

    Backroads Aficionado

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    In this theoretical jewelry scenario, they may have to ban all religious iconography or have a very good case for their selection.
     
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  26. Aces

    Aces Habitué

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    I'm going to jump in here. If a school specifically says that something is not allowed per dress code — I.e it's specifically called out — then they're perfectly within their rights to do that. As far as uniforms go, at my other school we didn't have a uniform per se but did have a strict dress code: plain colored collared shirts in the approved colors, school approved t-shirts (e.g band tour shirts), khaki or black slacks, jeans were allowed but they had to look nice, no clothing with rips or tears, all shorts or skirts above the knee must be long enough that there's only one badge length from the knee to the bottom of the clothing. Absolutely no hats in the building, your school-issued ID badge is required to be visible between the neck and the waist, no visible piercings, light hoodies are allowed in classrooms but heavier jackets have to be left in lockers. School-branded fleece coats etc are allowed. Absolutely no references to gangs, drugs, confederate symbols, Nazi emblems, all logos on clothing must be smaller than 3"x3".

    All of this was approved by the pto and was all perfectly legal and such.
     
  27. vickilyn

    vickilyn Magnifico

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    I agree.
     
  28. SpecialPreskoo

    SpecialPreskoo Moderator

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    Ask a lawyer?
     
  29. Linguist92021

    Linguist92021 Phenom

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    yes
     
  30. blazer

    blazer Connoisseur

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    I work in the UK where most schools have uniforms. They can be a 2 edged sword. Today I subbed in a lovely selective school full of high achieving kids who feel privileged to have a place there and follow the uniform code without question. I have also worked in schools where every lesson starts with a battle to get kids to put their ties on, take off their trainers and put on school shoes etc. Such that the learning is spoiled. I have always reckoned that if you removed the uniform requirement then the student body would look like the circus for about 2 months until they relised that a pair of jeans and a T shirt is the best thing to wear.
     
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  31. vickilyn

    vickilyn Magnifico

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    Until they realized what you could say on the T shirt - trust me, they are resourceful. ;)
     
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