Gangs

Student Challenges

Challenges to dress codes and uniforms typically come through the First Amendment Free Speech Clause; a related claim often falls under the freedom of assembly. However, almost invariably, these challenges fail for one or more important reasons.

Some courts hold that student dress does not rise to the level of expressive conduct necessary to warrant First Amendment protection (Ole s en v. Board of Education, 1987). In Olesen, a high school student was suspended for violating an antigang policy, which included a provision against wearing clothing, jewelry, or other symbols that signified gang membership. School officials targeted a student who was believed to be wearing an earring that identified membership in a local gang. The student claimed he was merely expressing his “individuality” and argued that the policy violated his free speech rights. The court found for the officials, holding that a message of individuality was not particularized enough to fall within First Amendment protection.

On a second issue in Olesen, the student argued that the antigang policy unfairly targeted boys, in that the policy did not prohibit girls from wearing earrings. The court rejected that claim, too, as the policy targeted gang affiliation clothing, jewelry, and other signs and symbols, regardless of the student's sex. It is important for educators to review applicable dress and uniform codes for their currency, as gangs change symbols, colors, and other identifying messages often. Flexibility and coverage are a must for antigang policies to succeed.

School Actions and Defenses

Schools defend their dress codes, uniforms, and anti-gang policies on the disruption standard from Tinker [Page 370]v. Des Moines Independent Community School District (1969). In Tinker, the Supreme Court ruled that school officials may not restrict the silent, passive, political speech of students without evidence that the speech materially or substantially interferes with or disrupts the work of the school or the rights of others or has the reasonable likelihood of doing so. It is clear that the signs and symbols of gang affiliation in a school could substantially disrupt the work of the school, as one of the well-known goals of gangs is to provoke conflict and violence.

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