Judge upholds student dress code

By Emily Richmond

Thursday, June 16, 2005 | 11:07 a.m.

A federal judge has thrown out a challenge to the Clark County School District's mandatory student dress code.

In an order issued Friday, U.S. District Judge Roger Hunt granted the district's motion to dismiss the case before trial, saying he found no merit in the ACLU of Nevada's claim that the policy violated students and parents' civil rights and is unconstitutional.

However Hunt did strike provisions in the dress code that allowed principals to suspend the policy for students with religious objections or on special school occasions.

Students who claimed the district dress code impeded their right to religious freedom or expression did not prove their case, Hunt said.

The district has asserted that the dress code policy "is rationally based on increasing student achievement, promoting safety and enhancing a positive school environment," the decision states. "These laws do not contemplate applying the mandatory uniform policy selectively to certain individuals on the basis of their religion or any other distinguishing factor."

"We are very pleased with the judge's decision," said Bill Hoffman, senior legal counsel for the district. "The heart of the issue was whether it was constitutional to have a dress code and that is where we've won."

Allen Lichtenstein, attorney for the Nevada ACLU, said he was disappointed by the ruling but not deterred. He said the group will appeal.

"We've said from the very beginning this is something that is going to be determined not by the district court but by the 9th (U.S.) Circuit (Court of Appeals)," Lichtenstein said. "We believe that court, based on its prior decisions, will find the School District's policy unconstitutional."

The ACLU filed the challenge after former Liberty High School student Kim Jacobs was repeatedly disciplined for wearing T-shirts bearing messages from the Book of Mormon.

Liberty, the district's first school to adopt the "campus wardrobe" policy, requires students to wear khaki bottoms and solid-colored red, white or blue shirts.

While Jacobs eventually withdrew from Liberty and moved to Northern California to live with her mother, citing the pressure that accompanied her legal battles, five other families and their children joined the ACLU suit.

In his decision, Hunt said student attire "may constitute speech on many levels" and in some situations is protected by the First Amendment. But while District Regulation 5131 "limits a student's clothing options, the regulation does allow for a range of clothing and color options," according to the decision.

"Further, students may continue to express themselves through other and traditional methods of communication throughout the school day; only their ability to communicate through their choice of clothing is incidentally restricted," the decision states."Students are free to wear what they will after school hours and elsewhere."

In his decision, Hunt struck down a provision in the regulation that allowed administrators to determine whether an exemption request on religious grounds was valid.

Hunt said the section was overly broad and left too much discretion to administrators. Additionally the exemption is unnecessary as the district's dress code policy does not violate religious freedom, he said.

The judge additionally struck down another clause allowing principals to suspend the policy for "spirit days, special occasions and/or special conditions." Additionally the clause allowing principals to suspend the dress code policy opened the door to the possibility that the policy could be unfairly applied, the judge said.

Hoffman said the district would follow the judge's instructions and remove the two exemptions from the regulation.

Hunt said the ACLU did not provide proof that Jacobs suffered lasting harm as a result of her repeated suspensions and missing weeks of classes at Liberty. In fact, the judge noted, the district's evidence showed that Jacobs' academic performance actually improved during the time that she was required to complete her assignments at home.

The judge's ruling also noted that while the district provide extensive documentation to support the argument that uniforms were improving student performance and the campus environment, the ACLU did not counter with any documentation that the dress code was causing harm.

Gary Peck, executive director of the Nevada ACLU, said his organization did not provide that evidence because it was not asked to do so by the court. Rather, Peck said, the two sides were asked by the court to limit their arguments to the constitutional questions.

Schools may adopt dress code policies more strict than the districtwide regulation provided parents are surveyed at at least 55 percent of the respondents are in favor of the change. "Standard student attire" limits the colors, styles and fabrics that are allowed. Blue jeans are banned at the high schools.

The ACLU has also taken issue with the district's procedure for surveying parents, saying the 55 percent threshold is too low. But Hunt said that is not a question for the court as the procedure complies with the state statute that allows school districts to establish uniform policies provided parents and the school community are first consulted.