California court throws out school's dress code
Judge cites recent Morse decision as affirming Tinker standard
CALIFORNIA -- A California superior court Monday scrapped the dress code at Redwood Middle School, citing the Supreme Court's affirmation of basic student expression rights in the recently decided "Bong Hits 4 Jesus" case.
The school's ban on all pictures, logos, words, stripes and patterns had landed a seventh-grader in the principal's office for wearing socks displaying Tigger, the character from Winnie the Pooh.
Students were also disciplined for wearing an American Cancer Society ribbon pin, a heart sticker, jeans and T-shirts reading "Jesus Freak" and “D.A.R.E. to keep kids off drugs,” according to court documents.
The dress code, intended to obstruct gang activity, had permitted only solid-color blue, white, green, yellow, khaki, gray, brown and black, according to the school's Web site.
"I don't really think it's fair at all," said Toni Kay Scott, now 16, who wore the Tigger socks two years ago, when a security officer escorted her and two friends to the principal's office before sending them to in-school suspension. "They say that it's for safety issues, but I think that it's just because they want to be completely controlling over everything."
The judge, Raymond Guadagni, enjoined the school from enforcing the dress code, saying that prohibiting and punishing attire that expresses a political or religious message violated the First Amendment.
"While it does appear that at least some of the student plaintiffs merely wish to wear clothes that express their personality," his decision reads, "the evidence also establishes that certain clothing and accessories prohibited by the attire policy -- the D.A.R.E. T-shirt, the Jesus Freak T-shirt and the breast cancer awareness pin -- did convey a particularized message subject to First Amendment protection."
Guadagni's decision quoted the Supreme Court's 1969 ruling in Tinker v. Des Moines Independent Community School and cited last month's reaffirmation of the Tinker standard in the "Bong Hits 4 Jesus" case. "It has long been held that, under the First Amendment to the Constitution of the United States, student expression is protected, so long as it does not 'materially and substantially disrupt the work and discipline of the school,'" he wrote. "This well settled principle has just been reconfirmed by the Supreme Court in Morse v. Frederick."
California Education Code Section 48907 guarantees students the right to wear "buttons, badges and other insignia" as part of their free expression, and Section 35183 requires that parents have a way to opt out of school uniform policies. The school district contends the dress code is not a uniform.
Toni Kay's mother, Donnell Scott, said she had tried to opt her daughter out of the policy, but the school refused.
After the Tigger socks, Toni Kay was disciplined again for wearing sneakers in a forbidden color -- pink. Suspecting a double standard, Scott gave Toni Kay a camera to photograph other students wearing pink shoes and other dress code violations without being disciplined. "There's no doubt she was being singled out because I had rocked the boat," Scott said.
Scott said she resorted to a lawsuit after exhausting her other options. "I did everything I was supposed to do. I went to the school, I went to the board, and everybody shut me down, so that’s why we ended up where we did," she said.
Starting this fall, students will be allowed to wear expressive messages with parental permission, according to a press release by the American Civil Liberties Union of Northern California, who helped the six students and their parents sue the school.
The court gave the school district six months to revise the policy or allow parents to opt out.
The school district is "looking into the next steps," the superintendent's assistant said.
Toni Kay, entering high school in the fall, will have a new dress code barring spaghetti straps and short shorts, but she said she doesn’t mind. "I don’t see that as a problem at all," she said. "They're still giving us our way to express ourselves. They're just setting guidelines for appropriateness."
By Isaac Arnsdorf, SPLC staff writer
Scott v. Napa Valley Unified Sch. Dist., No. 26-37082 (Calif. Super. Ct. Napa Co. prelim. injunction granted Jul. 2, 2007).