Q: The principal of my public high school has recently banned the use of “tails” on campus. “Tails” are a clothing accessory worn by those who identify with “furry” culture. Our tails are a form of expression, a way of saying “Hey, we’re furries and we’re proud. This tail represents my personality shape-wise and color-wise. There are many like it, but this one is mine.” Is my tail covered by the First Amendment? It is an accessory that is neither gang-related nor obscene, just a tail.
A: Your inquiry raises some interesting questions regarding the First Amendment and what is commonly referred to as “student speech.”
While students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings.” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
The bottom line is that the analysis of your situation would likely be complicated and difficult to predict what a court would decide. I am not aware of any cases that are on point with the scenario you describe.
Very generally speaking, speech gets more protection when a viewpoint is being conveyed, and restrictions are more problematic when they restrict a particular viewpoint. A restriction not based on the content of speech or the viewpoint being conveyed (a “content-neutral” restriction) is more likely to be considered compatible with the First Amendment. Some cases also distinguish between “pure speech” and “expressive conduct,” with pure speech getting more protection.
With regards to this point of “expressive conduct”, it’s not clear how a court would treat wearing tails. As you point out, wearing a tail could be considered expressive conduct, conveying a particular message about personal identity and community. Or it might be considered something less expressive and therefore subject to a lower degree of protection.
In the Tinker case, a high school banned armbands after learning that students planned to wear black armbands to protest the Vietnam War. The Supreme Court treated the wearing of armbands in that case to be speech – an expression of opposition to the war – and found the ban on armbands to be a prohibition of opinion. The Court said that in those circumstances, the ban on armbands required a showing of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”
In a more recent example, where school officials could reasonably predict that students wearing American flag shirts during a school Cinco de Mayo celebration was likely to cause disruption based on prior incidents between Anglo- and Mexican-American students, requiring students to remove or obscure the flags from their clothing did not violate their First Amendment rights. Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014).
And in a case originating in South Carolina, a federal Court of Appeals held that the First Amendment permitted a prohibition against wearing Confederate flag shirts where incidents of racial tension made a prediction of resulting disruption reasonable. Hardwick v. Heyward, 711 F.3d 426, 439-440 (4th Cir. 2013).
It sounds like you do not believe there is any reasonable risk that wearing tails will cause a disruption in school activities, so if wearing a tail is treated like expressing an opinion, and the ban on tails is considered to be targeted to prohibit the expression of that particular opinion, then the ban seems suspect under Tinker. However, it may be tough to establish both parts here.
Note, though, that even if wearing a tail is considered to warrant less protection than the political statement of the Tinker armbands (which would mean that the school doesn’t have to satisfy the “substantial disruption” standard), that doesn’t necessarily mean the ban satisfies the First Amendment.
As long as wearing a tail is considered to constitute some degree of expression, the school should still be required to make some showing of why the ban is important – especially if there is evidence that the tail ban is based on animosity towards furries rather than being part of a content- and viewpoint-neutral dress code.
Exactly what the standard would be is not entirely clear. The Ninth Circuit Court of Appeals recently applied what is known as intermediate scrutiny to a claim that a school’s content-neutral dress code violated students’ First Amendment rights: “[I]f the District’s school uniform policies advance important government interests unrelated to the suppression of free speech, and do so in ways that effect as minimal a restriction on students’ free expression as possible, then the uniform policies should be upheld.” Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 435 (9th Cir. 2008). In Jacobs, the court upheld the dress code.
At the end of the day, schools are likely to get a bit of latitude in administrative decisions. See, e.g., Hardwick v. Heyward, 711 F.3d 426, 439-440 (4th Cir. S.C. 2013) (“Because school officials are far more intimately involved with running schools than federal courts are, ‘[i]t is axiomatic that federal courts should not lightly interfere with the day-today operation of schools.’”). But in the Confederate flag case, the Fourth Circuit did acknowledge “[t]he seriousness of this issue,” which “rises from the tension between students’ right to free speech and school officials’ need to control the educational environment.” Hardwick, 711 F.3d at 436.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.