School board members dismissed from Ark. dress code case


Suit continues against superintendent, principal who suspended students for wearing black armbands to protest policy





ARKANSAS -- Three students who were punished for wearing black armbands to protest their school district's dress code can continue their claims against the district, its superintendent and the principal of the junior high school. But a federal judge on Wednesday dismissed the portions of the suit brought against individual school board members.

Early dissent

In October 2006, a group of students and parents organized a protest against the district's school uniform policy, enacted the previous spring. The policy spells out in detail what students must wear, down to the color and the number of buttons on the required polo shirts. It also bans any "special button, insignia ... picture, logo, ribbon" or other item "worn on or over any part of the uniform" except for the school name or logo. Community members had complained that students were punished for infractions such as wearing belts with too many holes or pants with too many pockets.

According to the lawsuit, parents passed out more than 200 small, black armbands for dissenting students to wear to school on Oct. 6. Students were encouraged to wear the bands on their wrists or other parts of their arms not covered by their uniforms; the policy specifically allows personal jewelry and similar items as long as they do not overlap any part of the uniform.

The complaint said most students chose not to wear the bands or to take them off after they heard administrators were suspending students who participated in the protest. But at least 20 students in total were suspended at the junior and senior high schools for wearing the bands.

Three of the suspended students -- Chris Lowry, Colton Dougan and Micheal Joseph -- filed suit against the district with the assistance of the American Civil Liberties Union of Arkansas. The students won a preliminary injunction just days after the protest, barring the district from punishing students who wore similar armbands and ordering the school system to clear the incident from the student plaintiffs' discipline records.

On a separate occasion, Lowry was suspended for passing out a flier opposing the uniform policy before school without getting the flier pre-approved by Henry Webb, the principal of Watson Chapel Junior High School.

The students' amended complaint argues that disciplining students who wore the armbands violated their First Amendment rights; that the uniform policy itself is unconstitutional; and that the student literature policy at the time, by failing to provide any guidelines about what material should be allowed or banned, allowed school officials to discriminate based on the viewpoints expressed in students' fliers.

Views on the ruling

U.S. District Judge J. Leon Holmes ruled Wednesday that the uniform policy was not unconstitutional on its face. The court also ruled that although the literature policy probably would be found unconstitutional, the existing precedent on the matter was not clear. Therefore, the court concluded that the individual school board members were entitled to qualified immunity from the students' claims.

But Holmes refused to dismiss Webb or the district's superintendent, Charles Daniel Knight. The court found "there is evidence that discipline was imposed to suppress a particular viewpoint."

Webb testified at the preliminary injunction hearing that the students who wore armbands were punished because "this was a direct protest against the school dress policy."

Holmes wrote in Wednesday's opinion that "absent evidence that wearing the armbands or distributing the flyers would substantially interfere with the work of the school, the right of students to engage in such conduct was clearly established in 1969" in the U.S. Supreme Court's Tinker v. Des Moines Independent Community School District ruling. A trial on the remaining claims is scheduled to begin the week of Sept. 10.

Holly Dickson, a staff attorney for the ACLU of Arkansas, said the school board members should be held liable because they were asked to overturn the students' suspensions and failed to do so. But she said it was telling that Holmes found that the superintendent and the principal might be individually liable.

Michael Dennis, the attorney representing the school district, said that the district court came to the right conclusion in dismissing the school board members and that he is confident Watson Chapel ultimately will prevail on the merits of the case.

Assistant Superintendent Ivy Lincoln said Tinker should not apply in this case because the Supreme Court in Tinker specifically excluded dress codes from its ruling. The majority opinion in Tinker notes that the case "does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment."

Lincoln acknowledged that the armbands on their own probably would not have been considered a dress code violation. But he said that the students, by publicly asserting that the bands were in protest of the dress code, violated the code's "catch all" provision, which bans "any attempt to defeat the uniformity intended by this policy."

"That's what's against the rule, is the protest against the policy using apparel," Lincoln said. He added that Lowry's fliers protesting the dress code also violated the policy because "it, too, would have been an attempt to defeat the uniformity intended by the policy."

Lincoln noted that students are free to lodge protests through the district's complaint process, to complain to school officials or to protest outside of school hours.

And Lincoln criticized the ACLU for "attempting to enlarge Tinker into the dress code arena."

"I think it's bad law," he said. "They need to read Tinker."

Dickson, the ACLU attorney, denied that the lawsuit was intended as a test case against school uniforms in general.

"This lawsuit is not about any motivations or goals other than correcting the wrongs committed by the Watson Chapel School District," Dickson said.

And Mark Goodman, the Student Press Law Center's executive director, said it is the school district that needs "some remedial education about the Constitution," calling Lincoln's statements "an amazing admission on the school's part."

"By acknowledging that the only reason they punished the students was because of the message their armbands conveyed, these school officials are confessing to unconstitutional viewpoint censorship," Goodman said. "I think they've just lost their case. The simple fact is that the First Amendment protects the right of students in our public schools to publicly object to school policies, including those about dress codes, as long as they do so in a non-disruptive way."

For More Information:

Lowry v. Watson Chapel Sch. Dist., No. 06-00262 (E.D. Ark. summ. judg. granted in part and denied in part Aug. 22, 2007).


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