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: On Call Employees over 4th of July Holiday
July 1, 2022
KBS Reference Desk: Employment of Students
June 24, 2022
KBS Reference Desk: TOMA Social Gatherings Conventions
June 17, 2022
KBS Reference Desk: Volunteers Under Guardian Plan
June 10, 2022
KBS Reference Desk: DOI and Certification
June 3, 2022
KBS Reference Desk: FML Leave Over the Summer
May 27, 2022
KBS Reference Desk: Decrease in Compensation
May 20, 2022
KBS Reference Desk: Participation in Graduation Ceremonies
May 13, 2022
KBS Reference Desk: Temporary Custodians of Record – TPIA
May 6, 2022
KBS Reference Desk: Driving Students to Polls
April 29, 2022
KBS Reference Desk: Authority to Create New Position
April 22, 2022
KBS Reference Desk: Booster Club Raffle
April 15, 2022
KBS Reference Desk: Returning a Teacher to Probationary Status
April 8, 2022
KBS Reference Desk: Termination of Probationary Contract While On Leave
April 1, 2022
KBS Reference Desk: Long COVID and Special Education Referrals
March 25, 2022
KBS Reference Desk: Pay During Weather Closure
March 18, 2022
KBS Reference Desk: Nepotism
March 11, 2022
KBS Reference Desk: New SBOE Rules on Contract Abandonment
March 4, 2022
KBS Reference Desk: Web Accessibility
February 25, 2022
KBS Reference Desk: Political Advocacy Prohibitions
February 18, 2022
KBS Reference Desk: Pay During Weather Closure
February 11, 2022
KBS Reference Desk: House Bill 2581 Procurement Updates
February 4, 2022
KBS Reference Desk: CDL Waivers for Bus Drivers
January 28, 2022
KBS Reference Desk: Interstate Travel Liability and Travel Forms Best Practices
January 21, 2022
KBS Reference Desk: Updated Stay at Home Periods
January 14, 2022