Appeals Court Upholds Las Vegas School District's Dress Code

By: Ken Ritter AP
By: Ken Ritter AP

LAS VEGAS (AP) - A school district dress code that requires some
students to wear uniforms doesn't improperly limit free speech and is constitutional, a federal appeals court ruled Monday.

An American Civil Liberties Union lawyer immediately promised to seek a rehearing of the decision by a panel of the 9th U.S. Circuit Court of Appeals, which he said undercuts a Vietnam War-era Supreme Court ruling that let students wear black armbands to protest the war.

"The lesson from this particular decision may be that the Supreme Court, when it said 'students don't lose their constitutional right at the schoolhouse door,' may no longer apply," said Allen Lichtenstein, general counsel for the ACLU of Nevada in Las Vegas.

The Las Vegas case stems from disciplinary measures taken against several students, including Kimberly Jacobs. She was suspended from Liberty High School in Las Vegas for wearing shirts bearing religious symbols.

Schools in the Las Vegas-based district have the option of adopting a student clothing policy, which then becomes mandatory at campuses.

Clark County School District lawyers told the court that the rules banning printed messages other than the school logo were "content-neutral," and promoted safety, classroom achievement and a positive school environment.

School officials said Jacobs violated a campus dress code that required all students to wear khaki pants and a plain red, white or blue shirt.

The ACLU argued that Jacobs and other students had a free-speech
right to wear the clothing of their choice.

"This has implications not only for schools but for all sorts of free speech," Lichtenstein said. "Wearing a message on clothing is like the armband in 'Tinker."'

"What this decision essentially did is overturn 'Tinker' and precedent."

Lichtenstein was referring to Tinker v. Des Moines Independent Community School District, a 1969 Supreme Court case that set standards for courts to measure whether school disciplinary measures violate students' First Amendment rights.

"The court said it is acceptable to ban communications through a particular medium, in this case messages on clothing, simply because the school district said it was not disagreeing with a particular message," he said.

Three judges split 2-1 in upholding a 2005 ruling by U.S. District Court Judge Roger Hunt in Las Vegas, who said the policy did not infringe on freedom of religion or expression.

The majority rejected Lichtenstein's argument that the policies prevented students from engaging in constitutionally protected "pure speech," and "expressive conduct," and that they compelled students "to 'speak' in a particular manner."

It called clothing rules appropriate if they "advance important government interests unrelated to the suppression of free speech."

"Here, the government's stated goals unquestionably qualify as
'important,"' the judges said, adding that the district's policies "do not restrict more speech than necessary."

The ACLU will seek a rehearing of the case, Jacobs v. Clark County School District, before the full appeals court in San Francisco, Lichtenstein said.

Administrators at the nation's fifth-largest school district did not immediately comment.

Jacobs moved out of the school district to live with her mother in northern Nevada.

(Copyright 2008 by The Associated Press. All Rights Reserved

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