Dress Code Woes: Drafting a Legally Defensible School Dress Code

08/17/18

School dress codes can create an awkward intersection of First Amendment rights, student discipline, unhappy parents, and – sometimes – lawsuits. Broadly drafted certain areas of the dress code and parting with traditional dress code language protects students’ rights while simultaneously achieving administrative goals.

Content Control

It is common practice for school dress codes to prohibit certain images, language, and gestures from clothing worn by students while at school. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the United States Supreme Court held that students do not lose their constitutional rights to free expression, guaranteed by the First Amendment, at school. The Court further declared that school officials could regulate the content of a student’s speech in instances where “[t]he school expects the speech to substantially disrupt the educational process or setting.” Schools may prohibit the following areas of content-based speech in their dress codes: lewd language, vulgarity, obscenity, images portraying gangs, and images portraying illegal activities.

To maintain a legally defensible dress code, content-based prohibitions should be avoided except for the areas listed above. For example, a dress code that prohibits certain flags from being shown on students’ clothing may be an unconstitutional regulation if there is no evidentiary justification an image of that flag would cause a “substantial disruption” to the school. By broadening the scope against certain messages, administrators can use their discretion to determine the likelihood of a particular image substantially disrupting the school on a case-by-case basis. Setting aside personal views on these images and digesting the reasonableness that a substantial disruption will take place are essential aspects in making proper enforcement decisions that limit the content of student speech.

Other Considerations and Drafting a Policy

1 Hair color and length is an ancillary issue that often arises during dress code discussions. Many courts throughout the Fourth Circuit have ruled in students’ favor concerning hair color and hair length, finding that such restrictions may amount to violations of the students’ equal protection rights under the 14th Amendment and their freedom of expression under the 1st Amendment. Mick v. Sullivan, 476 F.2d 973 (4th Cir. 1973); Massie v. Henry, 455 F.2d 779 (4th Cir. 1972).

Unlike content-based free speech prohibitions, limitations on clothing types and how they are worn are subject to less First Amendment scrutiny. Crafting a dress code that is not intended to target certain classifications of people can pass constitutional muster based on a number of justifications such as safety, health, protection, and prevention of a disruptive environment.

Dress code polices should be based on justifications that the administrator feels is necessary to achieve the school’s objectives as institutions of learning. For example, a dress code that “prohibits all orange colored pants” because orange is the rival school’s colors would not be rationally related to the school’s operation or goals. Reflecting on the justifications for each provision and then stating those justifications directly in the dress code policy are two easy steps that communicate and reinforce the dress code’s purpose.

Dress codes seeking to limit skin coverage are often highly contentious provisions both in courts of law and public opinion. Using a goals-based approach in drafting “skin coverage provisions” is a strategic way to avoid controversy or inadvertent discrimination. The legal risk that accompanies skin coverage provisions arise in the form of the policy having a discriminatory intent against one gender, race, or other protected class of individuals. To avoid this risk, school dress codes should avoid referencing garments that are generally associated with certain classifications of student demographics. Rather than covering every potential fashion ensemble’s limitations, begin drafting your policy by considering the goals and justification you want to achieve. For example, compare the following policy provisions:

  • Policy A: “No miniskirts, short shorts, tight skirts, low rise pants, or biker shorts.”
  • Policy B: “Leg coverings must be worn at the waistline and provide coverage to at least 4 inches above the knee.”
  • Policy C: “No tank tops, halter tops, muscle shirts, or spaghetti straps may be worn as an outer layer of clothing.”
  • Policy D: “A student’s torso must remain covered throughout the school day beginning at waist up to the level of the inner underarm. A minimum of 3 inches of shoulder coverage is required.” 

Polices A and C are very narrow, and even though the goal in preventing these items is to encourage maximum coverage, a student (or parent) could argue that the prohibited item is technically not in line with what is described in the policy. Clothing items are often loosely defined by popular culture trends. Policies B and D are broader and provide technical specifications related to certain points on the body along with the quantitative boundaries the policy is intended to portray. These policies focus on the goals of coverage provisions rather than medium of expression used by students to express themselves through their clothing.

Gender Neutral Language

Currently, there is tremendous focus on gender-based dress codes both in the media and among students and parents. While no major court decision has determined a specific legal standard for “gender-based dress codes” in public schools, creating policies that specifically differentiate in its application based on gender or gender stereotypes are often unconstitutional. One simple way to avoid a facially discriminatory dress code is to remove all references to males and females. Each provision can still apply the same way and will retain its effectiveness without mentioning who the policy is intended to restrict.

For example, in McMillen v. Itawamba Cnty. v. Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010) a female student in a Mississippi sought permission for her girlfriend to wear a tuxedo to the school prom. The administration mandated that “females must wear dresses and males must wear tuxedos.” The court agreed with the student that the policy was unconstitutional because the district’s justification—“only boys should wear suits”—perpetuated stereotypes and discriminated based on gender. Simply by evaluating the language of its dress code and eliminating the potentially discriminatory language could have prevented lengthy and expensive litigation for he defendant district in this case.

Uniforms

In Canady v. Bossier Parish Sch. Bd, 240 F. 3d 437 (5th Cir. 2001), the school’s uniform policy required all students to wear a choice of two colors of polo shirts and either navy or khaki bottoms. Parents challenged the policy under the First Amendment’s freedom of expression clause. The court found that though clothing could be a form of expression protected by the First Amendment, the policy would be upheld if it 1) furthered an important or substantial government interest, 2) the interest was unrelated to the suppression of student expressions, and 3) the restrictions on the speech were no more than necessary to further the state interest. The court upheld the school’s policy, finding it consistent with the state’s interest of improving education, content neutral, reasonable restraint on the students’ speech.

In creating a dress code policy that incorporates uniforms, Districts should be careful not to mandate such specific types of uniforms as to create hardships on students and parents who may not be able to afford them. Community engagement and involvement is often an effective approach to a successful campaign to craft a school uniform policy.

Issues surrounding school dress codes will always be a source of conflict for students seeking to express themselves and for administrators who aim to provide a learning environment free from disruption. By considering students’ First Amendment rights and balancing those rights with goal-based policies, you are sure to provide a well-rounded dress code for your students.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.

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“Don’t Let It Trip You Up”: Students with Disabilities and Field Trips

08/15/18

Concerns of safety and behavioral issues are valid when it comes to taking students with disabilities on school sponsored field trips. However, these concerns do not allow districts to exclude students with disabilities from participating in a school sponsored field trip. Refusing to allow a student with a disability to participate on the basis of his or her disability may violate many federal laws that give protections to disabled students such as the Americans with Disabilities Act (“ADA”). In addition, such denial could amount to denial of a free appropriate public education (“FAPE”) as required under the Individuals with Disabilities Education Act (“IDEA”).

Section 504

Under Section 504 of the ADA, districts are prohibited from discriminating against students with disabilities. This means that districts are responsible for providing services that meet the needs of individual students with disabilities and ensuring equal access. This includes equal access to participation in school sponsored field trips.

The ADA requires districts to presume all students with disabilities will participate in field trips. The ADA requires district to provide reasonable accommodations if necessary to allow the student to participate in the field trip. This may include related services and additional aids to allow the student an opportunity to participate in the field trip. Additionally, the district may not require a parent to accompany a student with a disability as a prerequisite to field trip participation unless district policy requires parent attendance for all students.

If the district believe that a student should be excluded from participating, the district must make that determination on an individual basis. In this scenario, the district bears the burden of demonstrating why the student should not participate.

IEP Concerns

When on a field trip a student’s IEP must be implemented in the same manner as it is at school. This means that if the student’s IEP requires an aide throughout the day, an aide must accompany the student on the field trip. Whatever supports the student’s IEP calls for while the student is at school, the student is entitled to the same for the duration of the field trip. This also includes any Behavioral Intervention Plans (“BIP”) that may supplement the student’s IEP.

Individualized Determination Process:

Districts should have a process in place in the event that a determination of exclusion from a field trip is necessary. This process should be an individualized determination of the student’s disability and contemplate the following:

  • The student’s IEP, especially any provisions that relate specifically to field trips
  • The purpose of the field trip (academic or non-academic)
  • Any accommodations or related services and aids that would enable the student to fully participate in the field trip  

A best practice would be to have the student’s IEP discuss and aid in making such a determination. These people are generally the most knowledgeable about the student and his or her needs and capabilities. Additionally, the district should provide the parents notice of its decision to exclude the student from participating in the field trip as well as any accommodations and related services and aids that would provide the student equal access to the field trip.

Should you have any questions about your district’s policies or practices related to this issue, please feel free to contact us!

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Planning for Protests: Balancing Protected Student Speech with the Duty to Maintain a Safe and Secure School

08/15/18

 

In the wake of the recent Parkland, Florida school shooting, students across the country are organizing, protesting, and advocating for stricter gun laws and increased school security at the local, state, and federal levels, with at least three national school day walkouts set to take place in the coming weeks. The largest and most publicized, “#ENOUGH,” requests that all K-12 students walk out of school for 17 minutes (symbolic of the 17 Parkland victims) on March 14th at 10:00 a.m.—the one-month anniversary of the Parkland tragedy. It is our understanding that there are more than 2000 walkouts planned across the country under the #ENOUGH banner, with 19 currently organized in South Carolina schools.

Given the potential for these walkouts, school officials are questioning whether they can and should allow students to participate during the school day, which will result in students walking out of class, most during instructional time. While some South Carolina districts have decided to prohibit their students from participating based on safety concerns related to large numbers of students gathering outside the school, others have indicated a desire to support the planned walkouts so long as they do not create a substantial disruption to the school environment or create a risk for students. In that regard, concerns have arisen as to those students who may refuse to return to class once the planned walkout time has ended, as well as those students who use the opportunity to leave the school campus.

School officials should keep four things in mind when approaching planned protests during the school day: (1) recognizing that students generally have a right to peacefully protest on school grounds during the school day; (2) providing a safe and secure space for the protest to occur; (3) determining how to handle a protest that becomes disruptive; and (4) educating staff, parents, and students on the disciplinary consequences that will occur if school policies are violated in connection with the protest.

In considering whether students have a right to participate in a walkout, the First Amendment provides that a protest, such as a walkout, is a form of protected expression. In the 1969 case of Tinker v. Des Moines Independent Community School District, the United States Supreme Court held that students could not be punished solely for wearing black armbands during the school day in protest of the Vietnam War.

The Tinker decision does not mean that school officials are barred from taking any disciplinary action against a student participating in a protest. If a school official determines that the protest has or may “materially disrupt classwork or involve substantial disorder. . .” school officials may take disciplinary against a student

without running afoul of the First Amendment. For example, if students are directed prior to a planned walkout that they will be allowed to participate within the parameters established by the school, but will be required to return to class after the walkout is over, and a student defies that directive, that student may lawfully be disciplined in accordance with the district’s student code of conduct, e.g., for the offense of “failing to follow the directive of a school official.” Likewise, if the school has established parameters for student participation in a planned walkout, such as the place where students are expected to gather and remain silent, and a student does not adhere to those parameters, the student may be disciplined.

If a school is aware that its students are planning to participate in one of the nationally promoted and scheduled walkouts, school officials should designate a space where students can safely congregate on school grounds. To alleviate concerns that a potential shooter may target that space, schools should consider not making the location of that space known ahead of time. Schools also should ensure that the selected space is adequately supervised by school staff, as well as by law enforcement, if feasible. As it is likely that not all students will participate in the walkout, schools should make certain that students who opt to remain in class are appropriately supervised. In that regard, school staff should be reminded that, unlike students, they do not have an unfettered First Amendment right to participate in a protest that occurs during instructional time.

The #ENOUGH protests are slated to take place on a specific date and at a particular time. The Action Network organizers of the #ENOUGH walkouts encourage peaceful and conflict free protest techniques. School officials should take advantage of the information on the Action Network’s website to communicate to faculty and staff what they should expect in the event a walkout occurs.

In addition to the nationally planned protests, districts should be aware that individual students or groups of students may decide to plan their own protest during a school day. In responding to the possibility of such actions, districts should consider each situation on a case-by-case basis, keeping in mind that, if the protest materially disrupts classroom instruction or creates an unsafe school environment, students may be appropriately disciplined. We do not recommend that districts issue a blanket statement that such protests will not be permitted, as such a prohibition could result in a legal challenge.

Finally, to avoid claims by students and parents/guardians that they did not understand that disciplinary sanctions could be applied to certain student conduct during a planned walkout, school officials should remind students of the applicable provisions of the student code of conduct. We also recommend that districts reach out to parents/guardians to inform them of how they are going to handle student participation in the walkouts, including the circumstances under which a student may be disciplined,

If your district has further questions about the legality of student protests and related issues, please feel free to contact us.

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Rehiring Retired Employees…Now Say That Three Times Fast!

08/15/18

 

This month, our firm has fielded a number of questions related to the process for rehiring retired, certified employees with regard to the salary cap and potential private contracting agreements.

The Salary Cap and Rehiring of Retired Teachers

S.C. Code Ann. § 9-1-1790

In 2012, the General Assembly amended S. C. Code Ann. § 9-1-1790 to place a $10,000 cap on the salary that may be earned during a calendar year by a retiree who returns to work. Once the retiree has earned $10,000, his/her retirement allowance will be discontinued for the remainder of the calendar year. This earnings limitation does not apply to those individuals who retired before January 2, 2013, or to those individuals who were 62 years old at the time of their retirement.

S.C. Code Ann. § 9-1-1795

In addition to the retirement date and age exceptions, S.C. Code § 9-1-1795 provides other circumstances under which the earnings limitation will not apply. First, if the retiree is employed in a school that has been designated by the State Board of Education as a geographic need area, the earnings cap does not apply. The S.C. Department of Education (“SCDOE”) has advised that it may ask that the law be amended to designate an entire district as a geographic need area, rather than individual schools.

If the retiree is employed to teach in the classroom in a critical academic need area, the cap also is not applicable. While report cards will not be issued until next Fall, the statute also states that, if the individual is employed in school that has received a “below average” or “unsatisfactory” academic performance rating pursuant to the Education Accountability Act, the cap does not apply. The list of critical academic need areas and geographic need areas is updated each year and may be found at the www.scstudentloan.org website.

Section 9-1-1795 also prohibits districts from hiring retirees until after May 31 of each year and states that, upon hiring a retiree, the district must notify SCDOE of that hiring and provide documentation that the district was not able to secure a qualified non-retired individual for the position.

The law is clear that, for all retirees who are returning to work pursuant to § 9-1-1795 and not subject to the earnings cap, districts must first seek to hire a qualified, non-retired applicant. Thereafter, if such a person cannot be located, the district must wait until after May 31 to offer the position to the retired individual.

The law is less clear concerning the procedures for hiring retirees who are returning to work subject to § 9-1-1790. Because § 9-1-1790 does not provide any restrictions as to the date by which a retired individual may be hired, or as to the process which must be followed, there is a strong argument that districts are not required to adhere to the May 31 date or to seek a qualified, non-retired employee, unless their specific board policy so requires. To clarify this issue, SCDOE has requested the inclusion of a proviso in the 2019 Appropriations Act to allow districts to hire retired educators on or before May 1, in keeping with the notification provisions of the Teacher Employment and Dismissal Act.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.

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Legal Alert: SC Pregnancy Accommodations Act

07/06/18

The South Carolina Pregnancy Accommodations Act (SCPAA) was signed into law on May 17, 2018. With the signing of the SCPAA, South Carolina joins twenty-two (22) other states providing protection to pregnant employees in addition to those provided under federal law. Employers are required to conspicuously post written notice of the SCPAA and its protections no later than 120 days after May 17, 2018 and also to provide new employees with a copy of the notice upon hiring.

Before the enactment of the SCPAA, South Carolina did not have a law governing the employer-employee relationship concerning pregnancy or pregnancy-related medical conditions; thus, employers were guided only by the federal Pregnancy Discrimination Act (PDA) of 1978. The PDA amended Title VII of the Civil Rights Act of 1964 by expanding the meaning of sex discrimination to include “sex discrimination on the basis of pregnancy.” The PDA sets forth the limitations imposed on an employer once it is placed on notice of an employee’s pregnancy and addresses the employee’s rights while pregnant. In essence, the PDA states that pregnant mothers “and [those with] related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Similarly, the SCPAA requires employers to provide reasonable accommodations to new mothers and pregnant employees where those accommodations do not impose an undue burden on the employer and prevents employers from discriminating against pregnant employees and new mothers. The law authorizes the South Carolina Human Affairs Commission to promulgate regulations implementing the law, which could include potential penalties for employers who violate the SCPAA. Specifically, the SCPAA prohibits employers from refusing to hire or terminate an employee; isolating or limiting an employee from other employment (promotion); reducing an employee’s wages; failing to make reasonable accommodations for medical needs relating to the pregnancy, childbirth, a related medical condition stemming from pregnancy; or taking adverse action against an employee for requesting or using reasonable accommodations (retaliating against an employee).

Like the PDA, reasonable accommodations under the SCPAA may not “impose an undue hardship on the operation of the business of the employer.” Employers are not required to “construct a permanent, dedicated space for expressing milk;” “create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;” or “hire new employees that the employer would not have otherwise hired.” However, cost effective accommodations may include: implementing more frequent bathroom and food breaks; allowing coworkers to assist the new mother with heavy-lifting; providing comfortable seating options such as stools or chairs rather than requiring a new mother to stand for hours; and modifying work schedules.

While the SCPAA does not obligate employers to automatically provide reasonable accommodations, employers should take steps to inform pregnant employees of their rights through updating their employee handbooks and policies and be willing to engage in dialogue with employees who request accommodations.

Should you have any questions about the SCPAA, please do not hesitate to contact White & Story, LLC.

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