Uniforms or Distracting Skirts in Public Schools: The Long & Short of It

In 2012 the Seoul Metropolitan Office of Education announced that it had adopted a controversial human rights ordinance that, among its other provisions, loosens up traditionally prevalent school uniform requirements by allowing students freedom to choose their own clothing styles. This article focuses on the comparative law of the United States to address whether schools may adopt dress codes or mandate school uniforms without violating the rights of students to self expression. Part II delineates the recent impetus for the proliferation of dress codes and school uniform policies in American public schools. Part III briefly outlines the foundations of constitutionally protected speech in that nation. Part IV presents the U.S. Supreme Court rulings that frame the First Amendment rights of students. Part V introduces a distinct constitutional framework that is emerging in a number of federal circuit courts, which framework is supportive of the authority of American school officials to adopt content-neutral dress codes and school uniform requirements. Part VI is an overview of the free speech rights of Students in Korea. While the distinction between speech in schools and outside of schools is less significant in Korean law, in the United States, minors are generally afforded the presumption of constitutional protection as “persons.” However, their rights to protected speech are not coextensive with the rights of adults outside of the school setting. The nature of the First Amendment rights of students in American elementary, middle and high schools is what is appropriate for “children in school.” School official are not obliged by the U.S. Constitution to surrender control of schools to public school students, and the degree of freedom that students enjoy must be weighed against the responsibility of teachers to manage schoolwork and to keep the learning environment free from undue disruption. In the United States school dress codes and mandatory school uniform requirements are generally considered content-neutral regulations of expressive conduct. A number of federal Circuit Courts have ruled that such school policies survive intermediate scrutiny in that they further important government interests such as promoting safety, focusing student attention on academics, eliminating dress differences that emphasize income disparity, and simplifying daily school preparation; that such governmental interests are unrelated to the suppression of student expression; and that any resulting incidental restrictions on First Amendment activities are no more than is necessary to facilitate the governmental interests. While some dress codes have been successfully challenged primarily for being vague and thus arbitrary, school uniforms have been highly successful and have survived legal challenges in the United States.