Part III
The Constitutional Question

Writing for the majority in the landmark Tinker v. Des Moines Independent School District decision of 1969, Justice Abe Fortas noted that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Hentoff 358). Sounding an ominous note for the absolutism of school authority, Fortas continued: "School officials do not possess absolute authority over their students. Students in school...are "persons" under our Constitution" (Hentoff 42) (For more information on Landmark free speech cases, please see Free Speech site). The question before us now is whether, in light of the students' rights revolution, the authority that public schools are constitutionally entitled to employ includes the power to enact and enforce public school uniform requirements.

Although the courts are just now beginning to take up the question of constitutionality, already uniform advocates have claimed an important victory against the ACLU and other uniform opponents. In a 1995 decision handed down by Maricopa County Superior Court Judge Michael Jones, the court ruled that a Phoenix Middle school's mandatory uniform policy does not violate student's constitutional rights to free expression. The decision is widely believed to be the first decision upholding a school's mandatory uniform policy. Judge Jones ruled that the district's goals of eliminating gang-related problems and leveling socioeconomic disparities regarding appearance justified the imposition of the uniform requirements. Many other cases are either about to go to trial or are already in mediation (Education Week (6)).

Despite this setback most civil liberties groups still maintain that uniforms requirements violate students' rights to express themselves. To these groups, students' free expression rights cannot be trampled solely because the public believes that by doing so schools will once again become safe, test scores will rise, and discipline will improve. We would not, for instance, install government cameras in peoples' houses even though such a measure would probably decrease some forms of crime. The reasoning is simple: despite the potential good (crime reduction) the cameras might do, a precious right - that to privacy - would have been violated. And just as the ends would not justify the means in this latter example, so too would the benefits of uniforms not justify the blatant violation of children's' free expression rights in schools (For more information about student free speech controversies - particularly the landmark Tinker v Des Moines Independent School District case, please see Free Speech site)

Another argument against uniforms - and dress codes in general - is that they unfairly punish some students for the wrongdoings of other students. That is, if reducing gang violence is the ultimate aim of the school, then policies should be directed against those individuals or groups who commit such violence, and not against the non-violent majority of students. Indeed, there are many ways this can be accomplished without threatening constitutional rights; metal detectors can be installed; stations can concentrate more police officers in and around schools; and zero tolerance policies for offenders can be enacted. Others point out that school uniforms and dress codes actually give more, not less, power to gangs by allowing them to, in effect, control what other students may wear. Thus, if gangs members are known to wear rings, the schools will prohibit anyone from wearing rings; if they are known to wear five O'clock shadows, the school will require that everyone be clean shaven. Many would argue that school uniforms, instead of helping to curb gang violence, ironically cede power to the very groups uniforms are meant to curtail.

However, uniform supporters maintain that these requirements neither surrender power to gangs nor violate any constitutionally protected right. In the case of elementary school children, it is not clear that they have the capacity to understand, and therefore possess, extensive free speech rights. That is, if person A is of an age - or mental state - whereby he is unaware of his right to free speech, it is certainly doubtful that uniforms infringe on a right which A himself cannot comprehend. Moreover, if uniforms do indeed have all of the benefits ascribed to them, then there may be paternalistic grounds to implement them. For instance, schools have compulsory attendance requirements which force students, sometimes against their will, to attend school up to a certain age. Schools also have the authority to force students to undergo medical treatment for an injury despite the student's insistence that he doesn't want such help. Similarly, if uniforms are effective (they lower crime, build self-esteem, promote discipline) then this may be a situation where it is in the student's best interest to wear them and, therefore, within the authority of the state to mandate them.

With regard to student rights, uniform activists argue that they care just as much about student's expression rights as anyone else but that they, unlike civil liberties advocates, realize the degree to which these liberties must be weighed against the myriad problems that now infect our public schools. Advocates argue that school uniforms are common sense enough; it is simply unethical for society to sit back and watch our children succumb to the violence and delinquency that are now commonplace in schools, our inaction justified by vague references to student's rights. If society believes there is a compelling need for uniforms in schools, then this need certainly outweighs the small limitations on student rights such a measure imposes.

Government 375: Educational Reform and Ideology