Dempsey v. Alston, A- 4975-06T34975-06T3 (N.J. Super., App. Div. Mar. 5, 2009)
The New Jersey Superior Court, Appellate Division, has ruled that a state law allowing local school boards to adopt a uniform dress codes is not unconstitutional on its face or as applied because the law failed to require local boards to include an opt-out provision in their codes. It also ruled that the Pleasantville Board of Education’s (PBOE) had complied with the law’s requirements for adopting a dress code. O.D., a student at Pleasantville High School, was disciplined for repeated refusal to comply with his school’s dress code. His parents filed suit on his behalf in state court against PBOE. The suit alleged that the law was unconstitutional on its face and the PBOE’s dress code failed to satisfy the law’s requirements before adopting the policy. The trial court granted PBOE’s motion for summary judgment and dismissed the suit. The law in question, N.J.S.A. 18A: 11-8, authorizes boards of education to adopt uniform dress codes in public schools. The law also mandates that “the decision to implement a dress code policy must be at the request of ‘the principal, staff and parents of an individual school,’ and must be based on a determination of the board of education that ‘the policy will enhance the school learning environment.’” In addition, the law requires that a “dress code policy may be adopted only after a public hearing and may not be implemented with less than three months' notice to the parents or guardians of the students.” While the law does not require dress code policies to have an opt-out option, it does state that boards may provide such option, so long as “a student [is] not be penalized academically or otherwise discriminated against nor denied admittance to school if the student's parents choose not to comply with the school uniform policy.”
Before the appellate court addressed the issues raised by O.D.’s parents, it noted that it would analyze the constitutional challenges on a facial and as applied basis, just as the trial court had done. The court then turned to the parents’ claim that the law was unconstitutional on its face because its failure to require that boards adopting dress codes to provide parents with an opt-out provision violated their privacy and free expression rights. While it acknowledged that parents have a fundamental right to control their child’s upbringing and education, the court cautioned the U.S. Supreme Court has never been called on to define the precise limits of that right. However, it pointed out that lower courts have found that right is qualified in a school setting such as C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005), in which the court said, “[I]n certain circumstances the parental right to control the upbringing of a child must give way to a school's ability to control curriculum and the school environment.” It rejected the parents’ contention that because O.D. has a constitutional right to dress as he chooses, an opt-out provision must be included in order for a board’s dress code policy to pass constitutional muster. The appellate court found no such right and, therefore, the legislature was only required to provide a rational basis for its action in order to withstand a constitutional challenge. It concluded that the law’s stated purposes, i.e. to "assist in controlling the environment in public schools, to facilitate and maintain an effective learning environment, and to keep the focus of the classroom on learning," were “rationally related to the State's legitimate interests in protecting and preserving the quality of its educational system.”
The appellate court also rejected the parents’ contention that the law violated their First Amendment right to freedom of expression. It found that in so far as the parents were raising their speech rights, the law placed no restrictions on their ability to object to the law. It then turned to the claim that O.D.’s choice of dress was a form of expression. It pointed out that in order for it to amount to protected speech, “the expressive conduct must reflect an intent to convey a particularized message and the likelihood must be great that the expressive conduct would be understood as conveying the particular message.” It conclude that O.D.’s choice of dress “failed to meet this threshold requirement” because O.D. admitted that he was not attempting to express any particularized message with his choice. In addition, it rejected the parents’ contention they have a fundamental right to exempt O.D. from the dress code policy, finding no support for it in case law. It agreed with defendants that even if the law were subject to strict scrutiny, it is a content neutral would pass constitutional muster because the law is content neutral and satisfies the four-part test enunciated in United States v. O'Brien, 391 U.S. 367 (1968). Under the O’Brien test a law will survive strict scrutiny if: “(1) if it is within the constitutional power of the Government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Lastly, it found the parents’ argument that the lack of mandatory opt-out provision rendered the law unconstitutionally vague or overbroad was without merit because the language of the law does not leave parents “without knowledge of its requirements” and there is “no realistic danger that it will significantly compromise recognized First Amendment protections of parties not before the Court.” As to the as applied challenge, the court found, as matter of law that the parents had failed to present any facts in support of this contention.
Regarding the parents’ claim that PBOE failed to satisfy the requirements of N.J.S.A. 18A: 11-8 for adoption of a dress code policy, the appellate court stated, after a reviewing the record, that the parents’ contention was “without sufficient merit to warrant extensive discussion in a written opinion.” However, it did offer some comments. It pointed out that the parents had failed “to provide any evidence to support their contention that the Board failed to comply with the Act's requirements for adopting a dress code policy.” It noted, on the other hand, the defendants had presented undisputed evidence of compliance with N.J.S.A. 18A: 11-8’s requirements.
Dempsey v. Alston, A- 4975-06T34975-06T3 (N.J. Super., App. Div. Mar. 5, 2009)
[Editor’s Note: As the U.S. Court of Appeals for the Eighth Circuit points out in Lowry v. Watson Chapel Sch. Dist. a student may engage in expressive speech to protest a school’s dress code, such as wearing an arm band, but raise the First Amendment Free Speech Clause as shield by simply refusing to comply with the dress code. A summary of the Eighth Circuit’s opinion is available below.]
NSBA School Law pages on Lowry v. Watson Chapel Sch. Dist.