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In August of 2009 the United States Court of Appeals for the Fifth Circuit affirmed the constitutionality of Waxahachie ISD’s content-neutral dress code. The district’s dress code prohibits all printed messages unrelated to a school club, sports team, university, or school spirit. The plaintiff, high school student Paul “Pete” Palmer, was forbidden in 2007 from wearing a shirt that said “San Diego.”  His parents brought him a shirt that said “John Edwards for President, 2008,” which the school likewise forbade.  The Palmer family then submitted three shirts to the Waxahachie High School for inspection:  a John Edwards t-shirt, a John Edwards polo shirt, and a t-shirt with “Freedom of Speech” imprinted on the front and the text of the First Amendment on the back.  All three were rejected by Waxahachie, and Palmer sued over an infringement of his First Amendment rights.

According to Marquette Maresh, an attorney/shareholder with Austin’s Walsh, Anderson, Brown, Gallegos & Green, Palmer v. Waxahachie ISD rules on an issue more and more common in dress code challenges: “We see a lot of cases these days about political expression.”

The Fifth Circuit’s ruling cites Supreme Court cases establishing a school’s right to regulate speech that is “disruptive, lewd, school-sponsored, or drug related.”  The Palmer family’s strategic selection of political messages seemed designed to fit outside these categories.  Of particular interest to school districts, however, is the Court’s finding that a fifth category of acceptable regulation exists:  content-neutral regulation.  Maresh says that the court’s ruling is “very clear cut… It helps settle the law. Texas school districts are free to have a dress code that restricts any and all messages.”

However, challenges to dress codes will continue to crop up.  “Sometimes they’ll bring gender discrimination—for example restrictions for males that are different than females, like hair length,” says Maresh.  “Drugs or alcohol messages, promotional shirts from beer companies—you’ll see complaints about school districts wanting to restrict those.” Maresh also notes that one of the more complicated dilemmas facing administrators is related to gang activity.  “The big challenge is that gangs change so much.  Their insignias, colors and symbols change so regularly school districts have a hard time keeping up with them.  Districts are frequently challenged for being too vague.”

To assist bedeviled administrators, Walsh, Anderson, Brown, Gallegos & Green has designed a model dress code.  “We get a lot of dress code challenges,” says Maresh. “Each [dress code] is particular and unique based on the community’s standards, but often they’re being written in vague or overbroad ways that leave them subject to interpretation.” From the law firm’s Web site (http://www.walshanderson.com/products_campus_collection.html), the model Student Dress Code “covers all the bases—from bare midriffs to nose rings and more.”

Highlights of Palmer v. Waxahachie ISD, as well as a summary of applicable “takeaways” from the 2009-10 case law, can be found in Jim Walsh’s Back to School article featured in the July/August issue of the Texas School Administrators’ Legal Digest.