Let’s be clear – students do not have a constitutional right to wear Halloween costumes at school.
Public schools can make students wear uniforms if they so choose, as long as the policies are not intended to squelch free speech, but instead are aimed at “creating an educational environment free from the distractions, dangers and disagreements that result when student clothing choices are left unrestricted.” Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008). But if a school chooses to allow costumes, there are limits to what it can restrict.
The First Amendment protects citizens from the laws of Congress. But over time, it has been applied to state (and local) government actions by our courts through “incorporation” – the process of applying them to state actors using the 14th Amendment. Public schools are political subdivisions of the states and public education is the responsibility of the state.
In Washington, “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders . . .” Washington Constitution art IX Sec. 1.
And, the legislature shall provide for a general and uniform system of public schools. Washington Constitution art IX Sec. 2. This is the legal reason why school districts and their officials are state actors and subject to the restrictions of the First Amendment.
It is now axiomatic that students are considered “citizens” with constitutional protections. In the seminal student free speech case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), young students felt passionate about a cause. They wanted to protest the Vietnam war by wearing black armbands throughout the holidays, including at school. The school authorities didn’t like it and were concerned about the possibility of violence, disruption, and rioting because newspapers and televisions were showing what was happening. The school may have won if they could have shown any evidence of this disruption, but the school didn’t do that. Instead, the school banned the armbands (and only the armbands) from school. At trial, the school authorities said that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against “the principle of the demonstration” itself. They simply felt that “the schools are no place for demonstrations,” and if the students “didn’t like the way our elected officials were handling things, it should be handled with the ballot box and not in the halls of our public schools.”
The question that ended up being presented to the Supreme Court was “Whether the First and Fourteenth Amendments permit officials of state supported public schools to prohibit students from wearing symbols of political views within school premises where the symbols are not disruptive of school discipline or decorum.” The Court stated, in a now-famous decision, that:
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. This has been the unmistakable holding of this Court for almost 50 years.
Id. at 506.
The Court held that for school officials to justify censoring speech, they must have 2 reasons for the censorship:
Id. at 509. That is, “purely expressive” content that does not threaten to disrupt or materially interfere with school activities is protected. Another point raised by the Court’s decision is that “a government’s restriction of speech must be viewpoint-neutral.” That means that schools and teachers cannot squash a student’s expression of a political or particular disfavored viewpoint.
With this background in mind, how does it apply to Halloween costumes at school? It should be clear what is allowed, right?
Not so much – the matter is complicated because certain kinds of speech or expressive conduct (like your clothing or costume) do not necessarily qualify for protection. For example, threats and fighting words are two categories of expression that are not protected by the First Amendment. They also sometimes include speech that is hateful towards a specific group, but hate speech doesn’t necessarily fall outside of the First Amendment’s protections. Generally, our federal Constitution is tolerant of the expression of racist, sexist, or other hateful ideologies. There is nothing illegal about wearing costumes that make fun of other races, cultures, or religions.
However, in the context of schools, special rules apply because schools have a special duty to children in their care. In Washington, our state constitution requires schools to make “ample provision for the education of all children.” Our state laws protect students specifically from harassment, discrimination, and bullying (among other things). Thus, a federally protected right to be a jerk and to express rude or offensive ideas does not necessarily permit a person at school to engage in conduct that harasses, intimidates, or bullies a student. Schools have more leeway in controlling student behavior than other governmental agencies do.
Further, people are complex and society is ever-changing. What was once accepted as a costume or dress is no longer appropriate in a globalized and modern world. For example, it is clearly offensive and inappropriate to dress in black-face makeup now, whereas it would have been socially acceptable several generations ago. A costume that parodies or mocks another culture or religion is also hostile and offensive. It is also very likely that even with the best intentions, dressing in the traditional clothing of another culture or religion as a “costume” for Halloween, can cause offense to a reasonable person of that culture or religion. These types of costumes are not expressive of any viewpoint and, in the context of schools, this behavior may be more restricted by the school’s duty to prevent and to address harassment, intimidation, or bullying of its students.
Even if some Halloween costumes are arguably “political” and political expression is one of the most protected types of expression, schools may still appropriately discipline students for wearing costumes or clothing that make a political statement. For example, in recent years, courts have determined that it is appropriate to discipline students for expressing political opinions or ideas through clothing, such as wearing confederate flags, Nazi uniforms, and even American flags where there are legitimate reasons for expecting substantial disruption. The more “purely political” the costume is, the more likely it will be protected because one of the most protected types of expression in First Amendment jurisprudence is expression that is political in nature. The Tinker case adopts this standard for students in school, but if it another student is likely to feel intimidated or harassed by the costume, the same costume is less likely to be protected by the First Amendment.
Other costumes that are less likely to be covered under the First Amendment include those that are lewd¹ or vulgar or that depict or glorify unlawful drug use. The appropriateness of expression must be weighed by balancing factors on a sliding scale in the context of circumstances, including specific attributes of the costume, the district, the student, other children, and the school environment.
I approach the analysis according to the pyramid illustrated here. The school has the most control over expression or speech for the factors at the top of the pyramid and has gradually less control over expression or speech as you move down the pyramid. A school has the most control over student expression in a classroom related to the curriculum. It has less control over student expression that occurs at school in an extra-curricular context. And it has even less control over student speech or expression that occurs off-campus. This does not mean that a school cannot exercise some control, such as issuing corrective action or discipline, over a student’s off-campus conduct or expression. But it means that the further down the pyramid you go, the more a school must show how the speech or expression affected or disrupted other students or the learning environment at school.
As you decide how to dress for Halloween, please keep in mind these principles of free expression, respect for the learning environment, and others’ rights to be free of intimidation or harassment. Your costume may be protected by the First Amendment, but do you really want to be a jerk?
Our attorneys are available to consult with families, administrators, and schools on First Amendment protections, dress codes, and student discipline. Please call or email us if you have any questions or are in need of any support.
¹ As an aside, please note that this does not give a school permission to discriminate against transgender students for wearing clothing appropriate for their gender identity merely by calling it “inappropriate” or indecent. This statement is meant to address those situations in which a costume might depict fornication or other “non-expressive” acts or that might infringe on other students’ rights to be free from a sexually hostile educational environment. But hold this thought – we plan to give this topic more attention in a future article.