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.

Related Posts

Recent Articles

KBS Reference Desk: Standard for Reporting Child Abuse and Neglect
July 30, 2021
KBS Reference Desk: Bullying Policies and Reporting SB2050
July 23, 2021
KBS Reference Desk: Homeschoolers and UIL
July 16, 2021
KBS Reference Desk: TOMA Suspension Extension
July 9, 2021
KBS Reference Desk: Revision to Resignation without Penalty Deadline
July 2, 2021
KBS Reference Desk: SB 179 School Counselors
June 25, 2021
KBS Reference Desk: 2021 TRS Surcharge SB 202
June 18, 2021
KBS Reference Desk: When do Virtual Board Meetings End
June 11, 2021
KBS Reference Desk: Buy American Program
June 4, 2021
KBS Reference Desk: Board Member with Substantial Interest Closed Meeting Attendance
May 28, 2021
KBS Reference Desk: Administrator Reassignments – Same Professional Capacity
May 21, 2021
KBS Reference Desk: Vaccine Complications and FFCRA
May 14, 2021
KBS Reference Desk: Importance of Contract Legal Review
May 7, 2021
KBS Reference Desk: Negotiating Resignations
April 30, 2021
KBS Reference Desk: Authority to Create New Position
April 23, 2021
KBS Reference Desk: Vaccine Incentive Programs for Employees
April 16, 2021
KBS Reference Desk: Felony Conviction and School Board Candidates
April 9, 2021
KBS Reference Desk: T-TESS Rubric Virtual
April 2, 2021
KBS Reference Desk: COVID-19 Vaccination Status Questions and EEO Laws
March 26, 2021
KBS Reference Desk: Certification Addendum
March 19, 2021
KBS Reference Desk: Lifting of Mask Mandate and Implications for UIL Activities
March 12, 2021
KBS Reference Desk: Identification of TPIA Requestor
March 5, 2021
KBS Reference Desk: Pay During Closure
February 26, 2021
KBS Reference Desk: Vaccines and Quarantine
February 19, 2021
KBS Reference Desk: Virtual Learning and Child Find
February 5, 2021