The first morning of the 2005 school year held more than the typical jitters for Toni Kay Scott. One moment, the seventh-grader, known as T.K., was stepping from her mom’s Ford pickup to join friends in front of Redwood Middle School in Napa, Calif. Minutes later, the police officer assigned to watch arriving students was steering her toward the principal’s office. Scott, an impish brunet with a tiny nostril stud, had violated Redwood’s dress code. The code aimed to squelch gangs by requiring students to wear only certain clothes and solid colors. Scott could change her outfit and stay at school, or she could spend the day at home. “I said, ‘There’s nothing wrong with what I’m wearing. I’m going home,'” recalls Scott, a near straight-A student. “I thought it was kind of ridiculous.” Her parents thought the dress code more than just ridiculous: they considered it unconstitutional. In March they and a dozen other Redwood parents and students sued the school and the Napa Valley Unified School District in state court. They claim the students have a fundamental right to express themselves through their attire–to speak, in effect, through the kind of clothes that Scott insisted on wearing that first day of school: a denim skirt and socks depicting Tigger, a character from Winnie-the-Pooh. We have come a long way in the four decades since three students in Des Moines, Iowa, wore black armbands to protest the Vietnam War–and won a landmark U.S. Supreme Court decision establishing the right to speak freely in school. Back then lawsuits over school speech were almost unheard of, and they usually involved weighty issues such as racial equality and the right to political protest. But since 1998, students have sued schools in astounding numbers, with as many as 94 disciplinary cases reaching appellate courts in one year. And while lots of these suits claim First Amendment violations, the speech involved can feel trivial: inappropriate clothes, online insults or, as in a current Supreme Court case, BONG HITS 4 JESUS written on a banner. That the bong-hits case, known officially as Morse v. Frederick, has come before the court is a sign of the times. An unprecedented wave of similar suits has clogged the lower courts in recent years, propelled, say legal experts, by several developments: stricter rules in the aftermath of gang violence and school shootings, a crackdown on alarming Internet comments and a perceived hostility toward religion in public schools. While the lawsuits may strengthen student rights, they come at a high cost for schools–in diminished authority as well as dollars. “We used to defer to the professional discretion of teachers and administrators,” says Richard Arum, a professor of sociology and education at New York University and the author of Judging School Discipline. “Now our schools are run increasingly by lawyers and judges, and that has profound consequences in undermining the moral authority of school discipline.” The notion that whatever the teacher says goes began to fade in the1960s. Outrage over racism, poverty and the Vietnam War made questioning authority a righteous cause in schools as well as on the streets. But students also attracted attention from public-interest lawyers who believed that stronger rights of expression would allow children to get a better education. Their first big victory came in 1969 with the black-armband case, called Tinker v. Des Moines Independent Community School District. In a 7-to-2 decision, the Supreme Court ruled that students don’t “shed their constitutional rights to freedom of speech … at the schoolhouse gate” as long as they don’t cause “substantial disruption” at school. Courts gave students even more rights over the next decade, but the rise of drugs and alcohol on campus made judges increasingly sympathetic to schools. In the ’80s, the Supreme Court cut back the rights granted in Tinker, telling schools they could limit student speech that was “vulgar and offensive” or “sponsored” by the school in, for example, a student newspaper. Student lawsuits started to dry up after the backlash. From 1969 to ’75, an annual average of 76 school-discipline cases made their way to appeals courts, according to Arum, but from 1976 to ’89, the annual average dropped to 29. A few years later, though, the number of student lawsuits began to rise again as schools confronted an alarming new problem: gangs. The Napa Valley evokes images of wine and elegant living, but during the mid-1990s gangs roamed local high schools and recruited younger members from places like Redwood Middle School. School officials barred suspected troublemakers from wearing certain colors and flashing signs associated with gangs, and violence dropped. Encouraged, the officials got together with parents to create a schoolwide dress code in 1998: no jeans, no pins, no patterns, no reds and no logos of professional sports teams. “Has it worked? Yes,” declares Redwood principal Michael Pearson. “Now there is safety on campus. We’re on to something here.” But some parents feel Redwood has gone too far. Donnell Scott, T.K.’s mom, sits with three other mothers at the kitchen table of her modest ranch-style house five blocks from the school. Their kids have all been “dress-coded”–punished for wearing an American Cancer Society pin or a T shirt with JESUS FREAK written on it–and, after three years fighting the policy, they’re fed up. Free speech is one issue , but the dispute also seems to be about control. “My job is to parent my child,” says Scott, “and it should be up to me to say what’s appropriate for her.” Is that worth fighting about in court? Rebecca Santos, whose son Jacob was dress-coded for wearing jeans, sees no choice: “We’ve been pushed to this extreme. It’s time they heard us.” Their lawsuit cites California statutes that give students the right to wear “buttons, badges and other insignia” and parents the choice of “opting out” of school-uniform policies, but it is based largely on constitutional protection for speech. Lots of parents have challenged school dress codes on that ground–and have often lost.
