KBS Reference Desk: Face Masks and the First Amendment

Q:       More virtual students are returning to campus who don’t understand our neutral face mask policy. Yesterday a student wore a mask with a “Black Lives Matter” slogan. He was provided an alternative, but the parent complained. Can the district ban face masks with images, words, or political slogans?

A:        Yes. Generally speaking, a school district may have a standardized dress code that prohibits messages on student attire, including face masks, so long as the policy is content neutral and enforced uniformly.

Indeed, the Supreme Court made clear in 1969 that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). However, in subsequent opinions it was clarified that school districts may impose regulations on student expression if the following criteria are met: (1) the regulation furthers an important or substantial governmental interest (i.e., focus on education); (2) the interest is unrelated to the suppression of student expression (i.e., preventing disruption); and (3) the incidental restriction on First Amendment activities is no more than is necessary to facilitate that interest (i.e., allowing students to express their views through other mediums during the school day). Canady v. Bossier Parish Sch. Bd., 240 F.3d 437 (5th Cir. 2001). As in the above scenario, when a school district bans all messages in its standardized dress code the limitation is content neutral and therefore a permissible restriction on expressive conduct under the three-prong test above. In contrast, any piecemeal attempt to restrict dress based upon the message (e.g., Trump 2020 permitted but BLM restricted) could be deemed an impermissible censor of a student’s First Amendment right to expression.

The Texas Association of School Boards has provided guidance regarding student rights relating to dress codes, which is available at https://www.tasb.org/services/legal-services/tasb-school-law-esource/students/documents/student_dress_and_appearance.pdf. Please contact your local school attorney if you seek additional information or have specific questions regarding student First Amendment rights.

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