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AGLO 1971 No. 1 -
Attorney General Slade Gorton

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                                                                  January 5, 1971
Honorable C. J. Rabideau
Prosecuting Attorney
Franklin County
P.O. Box 951
Pasco, Washington 99301
                                                                                              Cite as:  AGLO 1971 No. 1 (not official)
Attention:  !ttGeorge E. Heidlebaugh
            Deputy Prosecuting Attorney
Dear Sir:
            This is written in response to your recent letter requesting that we review and comment upon your tentative responses to certain questions relating to a student dress policy covering students attending schools in the Pasco School District, which have been submitted to your office by the superintendent of that district.  This policy statement, entitled "Good Grooming Policy," reads as follows:
            "As a matter of policy the Board of Directors believes that neatness, orderliness and cleanliness of dress and personal grooming are very desirable individual qualities which the Pasco Schools shall promote and encourage among the members of the student bodies.
            "The Board is of firm belief that extremes of costume, grooming and personal behavior are not in the best interests of either the student or the school.  The Board believes that such practices may reflect an unwillingness of the individual to accept the responsibilities of a student body member, may be repulsive and distracting to others, may reflect an undersirable attitude on the part of the student and the school.
            "Accordingly, the school adminstration is directed to institute a program of close supervision over such extremes of dress and personal grooming that would generally be considered in poor taste.
            "To achieve the intent of this policy, authorization is granted the principal to suspend from attendance those students who fail or refuse to cooperate with this program."
             [[Orig. Op. Page 2]]
            Notably, although certain of the questions posed by the superintendent deal with the regulation of dress worn by teachers as well as by students, the foregoing policy makes no reference to teachers or other employees; rather, as we read it, it is limited to students only.  Accordingly, we must regard any questions relating to the regulation of dress worn by teachers or other employees as being purely hypothetical at this time ‑ and, since it is contrary to long standing policy for this office to issue an opinion on a hypothetical or conjectural question having no present basis in fact, we will exclude any discussion of this aspect of the superintendent's questions from this commentary.
            The first question posed to you by the superintendent reads as follows:
            "1. May the school district legally prohibit the wearing of pants suits or dress slacks by students?"
            Your proposed answer to this question is as follows:
            "Pants suits or dress slacks may be lawfully worn by male and female students as their wearing does not reasonably relate to health, safety or substantial disruption of the school.  He who holds otherwise must be prepared to prove with facts otherwise."
            By way of our comment with respect to this answer, we first take note of the recent New York case of Scott v. Board of Education, 61 Misc. 333, 305 N.Y.S. 2d 601 (1969).  In this case, the court addressed itself to the very issue raised by this question and ruled as invalid, for lack of authority, a school board's regulation which flatly prohibited "girls wearing slacks" except when "permitted by the principal . . . on petition by the student council when warranted by cold or inclement weather."  The court held that dress regulations of a school board were validly authorized only to the extent that they were necessary to protect the safety of the wearer (male or female) or to control disturbances or distractions which would interfere with the education of other students.  Regarding the particular rule under consideration the court, at page 606, noted:
            "The simple facts that it applies only to female students and makes no differentiation as to the kind of slacks mandates a negative answer, for those facts make evident that what is being enforced is style or taste and not safety, order or discipline."
             [[Orig. Op. Page 3]]
            In thus determining that the rule in question was unauthorized, the court in Scott found it unnecessary to pass upon the petitioner's further assertion that the regulation, in any event violated the equal protection clause of Amendment 14 to the United States Constitution; however, other courts have invalidated similar "dress regulations" on this ground.  See, i.e., Zachry v. Brown, 299 F.Supp. 1360 (N.D. Ala. 1967), in which the court enjoined the continued suspension from a public junior college of the plaintiffs, ages eighteen and nineteen.  The plaintiffs had been suspended by reason of their failure to conform to rules pertaining to permissible hair styles for male students.  The court held that the classification of male students solely on the basis of an administrator's personal dislike of long hair on males constituted a classification upon an unreasonable basis in violation of the Fourteenth Amendment.1/
             Passing over the superintendent's next question relating to the regulation of dress by teachers or other employees of the school district, for the reasons we have already indicated, we turn next to the generalized question:
            Are there any legal guidelines which apply to the regulation by a school district of the dress of its students?
            Your answer to this question reads, in material part, as follows:
            "Yes, we are all bound by the general law on decency and any special laws limiting clothing in dangerous occupations.  Further, students . . . may be subjected to school board legislation concerning grooming, dress and deportment which bear a real, substantial and reasonable relationship to health, safety and non-disruption [[nondisruption]]."
            By way of comment with respect to this answer, we believe that what we already have said, above, indicates substantial accord with your response.  It has long been recognized that school administrators are authorized to establish and enforce regulations to deal with activities  [[Orig. Op. Page 4]] which may materially interfere with the requirement of appropriate discipline in the schools.  Griffin v. Tatum, supra.  This is true even when that which is condemned is the exercise of a consitutionally protected right.  Ferrell v. Dallas Independent Sch. Dist., 392 F.2d 697 (5th Cir. 1968).
            In order to determine if a regulation does bear a real, substantial and reasonable relationship to the school's interest in maintaining order and discipline as well as the health and safety of its students, it is necessary to look at each regulation in light of the particular facts and circumstances giving rise to its adoption.  Ferrell v. Dallas Independent Sch. Dist., supra.  Basically two questions need to be asked.
            First, in balancing the school's interest against the rights of its students, can it be said that the state has a legitimate overriding concern in protecting its interest?  If a mode of dress or method of grooming can be shown to either directly cause disruption and disciplinary problems or create an immediate and substantial risk of such problems, the necessary relationship between the regulation and the interest the school is seeking to protect is established.  Ferrell, supra; and Giangreco v. Center School District, 313 F.Supp. 776 (W.D. Mo. 1969).
            Secondly, the question of the availability of another reasonable course of action which may be just as effective but which does not infringe upon individual rights needs to be asked.  If a reasonable alternative exists, it should be taken.

            The conclusion to be drawn from the above reasoning is that unless a factual showing can be made regarding a health, safety, discipline, or disruption problem resulting directly or substantially from the students' dressing or grooming habits in contravention of the proposed regulation, then the rule or regulation will probably be invalid because of both lack of authority and unreasonable classification.
            Finally, you have been asked to advise, specifically, on the question of whether the "good grooming policy" of the Pasco School District, as set forth at the outset of this letter, is valid.  Your response to this question reads as follows:
            "I have no objection legally to Paragraph I and II on the policy attached as they relate to teaching not coercion.  I have no legal objection to  [[Orig. Op. Page 5]] Paragraph III as long as "supervision" extends only to teaching and admonishments concerning "poor taste."  However, Paragraph IV is unlawful for taste cannot be legislated."
            We are in basic agreement with this critique.  To the extent that the particular policy to which you have referred constitutes an expression of the board members' personal taste, opinions and teaching objectives, no legal objections can be made.  However, as noted in Scott and Zachry, supra, personal tastes and dislikes do not constitute a basis for the promulgation and enforcement of valid dress and grooming rules.  Accordingly, to the extent that paragraph four of the policy authorizes the suspension of a student solely by reason of his failure to conform to another's opinion of "good taste" we would, likewise, regard it as invalid.
            We trust that the foregoing will be of assistance to you.
Very truly yours,
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Accord, Griffin v. Tatum, 300 F.Supp. 60 (M.D. Ala. 1969); Westley v. Rossi, 305 F.Supp. 706 (D.C. Minn. 1969); and Calbillo v. San Jacinto Junior College, 305 F.Supp. 857 (S.D. Tex. 1969), also holding that in the absence of testimony or other evidence of a reasonable relationship to health, safety, order or discipline of any student, such student "dress" regulations are violative of the equal protection clause of the Fourteenth Amendment.