Safety pins, confederate flags, pantsuits, red baseball caps. Schools face challenges in balancing, on one hand, teachers’ rights to express themselves through what they wear against, on the other hand, potential school disruption in our post-election environment.

Are there times when public schools may restrict teachers from expressing themselves in the workplace through attire? Without a doubt.

In public schools and in the immortal words of the U.S. Supreme Court in the student-protest case of Tinker v. Des Moines Independent School District (U.S. 1969), neither “students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse door.” (While the U.S. Constitution extends rights to free expression to employees of public schools, it does not reach private school employees vis-à-vis their employers inside the workplace.)

Generally, the First Amendment allows public schools to restrict their teachers’ personal speech on matters of public concern where it has the potential to impact operational efficiency or harm the teachers’ abilities to perform their jobs. Pickering v. Board of Education. Where teachers are speaking instead as part of their job, public schools have significant latitude in controlling the speech. Garcetti v. Ceballos. Teachers’ clothing, accessory, and grooming decisions may be protected by First Amendment speech considerations.

Courts take a variety of approaches to analyzing teacher freedom of expression, but relevant cases lay out several questions that schools should consider asking when thinking about restricting teacher dress:

Is the expression protected “speech”?

At the threshold, schools should ask whether the teacher’s attire amounts to “speech.” Though teachers may choose attire simply on the basis of comfort or style, their choices “may be endowed with sufficient levels of intentional expression to elicit First Amendment shelter.” Canady v. Bossier Parish School Board  (5^th Cir. 2001) (overturning district restriction on students wearing long hair).

Look to whether a chosen item is intended to convey views on political, social, ethnic, or religious concerns. Items that have been found to do so include hairstyles, confederate flag clothing, political buttons, and hijabs.

Is the expression “on a matter of public concern”?

To enjoy protection under First Amendment shelter as speech, teacher expression must relate to a matter of public concern. Courts are inconsistent on where the line between public and private falls with regard to complaints about curriculum choices or disputes with supervisors, but (as above) views on political, social, ethnic, and religious concerns are more likely to be covered.

Will the expression substantially disrupt school operations?

Tinker clarified that schools may restrict speech if it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Cases have clarified that schools need not wait until disruption occurs, but must have “reason to anticipate” substantial disruption, as opposed to simply “an urgent wish to avoid the controversy which might result from the expression.”

Courts are more likely to find restrictions on expressive attire appropriate where it has a record of disrupting school operations or where circumstances indicate it will do so. For example, courts have found that schools have reason to anticipate substantial disruption in cases challenging confederate flag clothing bans, particularly where schools had a history of disruption in relation to the flags.

Is the expression occurring as part of the teachers’ job duties?

Perhaps most importantly, schools can regulate speech within the curriculum and classroom for “legitimate pedagogical reasons.” Hazelwood School District v. Kuhlmeier. Teachers have an obligation to present the curriculum of the district—that is what they have been hired to do.

There is an argument that public school teacher symbolic expression through dress is not made “pursuant” to official duties and, thus, cannot be restricted unless it interferes with school operations. At least one judge (in a concurring opinion) has indicated that noncurricular speech in the classroom should have greater protection than curricular speech.

However, when working in the classroom or at school activities, teachers’ expressions may be taken to represent the viewpoint of their schools. Though few have directly considered the extent to which schools can regulate teacher attire under pure free speech considerations, courts do tend to defer to school decisions about appropriate workplace attire regulations. E.g., Weingarten v. Board of Education of City School District (D.N.Y. 2008) (finding no First Amendment violation in a district’s ban on buttons advocating political positions while on duty); and Montle v. Westwood Heights School District(D. Mich. 2006).

And some final questions

A few other issues bear exploring in a public school’s jurisdiction before it restricts teacher dress:

• Is the restriction “viewpoint neutral”? Some courts require restrictions on expression to be “viewpoint neutral”—to not favor one side of an issue over another. Others do not, such as where one side’s viewpoint has been shown to cause disruption but the others’ has not.
• What other legal issues are out there? Even where the First Amendment does not protect public employee expression, that expression may enjoy other protections. State and employment laws, and other constitutional considerations—such as freedom of religion—may apply.

What this means to you

Ask these questions—in light of your school culture and jurisdiction—before imposing teacher dress codes. Rules on expressive attire are often appropriate to maintain school order and balance the rights of whole school communities. In this fairly unsettled area of law, public schools should approach controversial dress codes with those rights and risks in mind.