Many of you have asked for  an easy explanation of the rules & principles the courts will use to decide uniform cases. Here is my honest analysis of  the good, bad & ugly:

          I.    MESSAGES---HIGHEST STANDARD (Strict Scrutiny)

           The courts are clear that  both kids & adults have a right to use their clothing to send  SOCIAL/POLITICAL MESSAGES---UNLESS such messages are obscene, vulgar, promote  illegal acts or create IMMINENT danger of SUBSTANTIAL DISRUPTION of the educational process. This doctrine started with TINKER and has been carried  down by most cases.  The best recent exposition of it is the 9th Cir 1992 case of CHANDLER v McMINVILLE.   The courts have
not said much about  what TYPE of clothing messages can be on--but different cases have explicitly approved armbands, pins, and T-shirts.

      Because MESSAGE/LOGOS  are protected by the First Amendment--even for kids in school--the "strict scrutiny" test applies--the highest standard. This means  that State efforts to curtail messages will  NOT  be approved unless  there is no other way to accomplish legitimate state goals.  So it is NOT enough here (unlike the style issue in Section II) that there is a
 rational basis  for a state wanting to prohibit  message clothing; there must be  a COMPELLING REASON  involving morals & safety.

       Further, EVEN if  a message can be  restricted, the gov't must use the NARROWEST POSSIBLE  MEANS  of restriction in 1st Amendment matters.  Again unlike issues subject to the rational-basis test (below), the state MUST choose the LEAST restrictive method that will still allow accomplishment of a legitimate state goal (like school unity, attendance & discipline).  They can chill message speech ONLY if there is no other way!

      TWO CAVEATS, HOWEVER.   For 1st Amendment protection,  the "message" must be so clear that most people seeing it will understand what it means. So a logo shirt  saying LEGALIZE ROCK MUSIC  would be covered--but a shirt just
 showing a rock band might not. Similarly, earrings, hairstyles and other forms of expression may be deemed NOT to send a clear  MESSAGE on social/political matters and may not be protected by this rule.  Logo shirts of sports teams ARE covered  if they send a message the wearer  supports the team.  Needless to say, the wearer of a  message shirt MUST be prepared to  say he  BELIEVES in the message he wears!

       The OTHER CAVEAT  is that even protected speech is subject to a "time, place & manner" test. Ironically this should HELP those wanting to wear flat  logo T-shirts even more than the pins upheld in the pre-TINKER case of Burnside v Byers. On a scale of 1-10 , 1 being the least intrusive and 10 being the most intrusive, flat logo shirts (if in good taste) are about a 2, pins & buttons which can clang & stick into skin are about a 4,  leaflets are about a 6 and  a bullhorn is about a 9!!  In other words, although a shirt CAN  inflame or cause disruption, it is MUCH LESS LIKELY  to do so than the other means of expression listed.

      FURTHER, one GOOD thing is that there is not a "heckler's veto." In other words, the fact that a message shirt or leaflet makes other people mad is NOT in itself grounds for banning it.   Per COOPER v AARON, the Little Rock/Faubus case, the remedy is to punish the hecklers, NOT the student actor/speaker.  BUT  if  even controversial expression, like the anti-war
 armbands in TINKER, are protected, NON-controversial messages are even MORE protected. So shirts supporting popular local teams, knocking drugs & tobacco, and supporting family values   should ALWAYS be protected without question.

      FINALLY, even MORE  protected is the right not to  be the victim  of CONTENT-BASED discrimination.  In other words, even if  the school could ban ALL T-shirts (per SECTION II below), they can't pick & choose AMONG T-shirts,
 allowing some & refusing others. MANY uniform codes have a fatal error in that   regard by allowing the "school logo T-shirt" and banning all others. NO CAN DO!!  Although it  can be  claimed the school shirt is merely for "identification," it still glorifies ONE institution at the expense of others. Kids are NOT obligated to be  fans of their own school--the same as Hillary of Illinois has a right to be a Yankee fan instead of a Cubs fan! Even pro-uniform attorneys agree that you can't do content-based
 discrimination. (See PHOENIX ELEMENTARY DISTRICT NO. 1 v. GREEN) .

         II.     RULES ON STYLES--THE RATIONAL BASIS TEST

       Now the bad news.  When the question is not one of  whether the child can send a message on his clothes, but rather the style of clothes he can wear, the courts use the MUCH LOWER  "Rational  Basis " test.   This test,  which governs almost ALL gov't action, merely asks whether the gov't has a  rational reason for imposing the regulation. If they do, it is upheld. Because of school violence, for example, banning excessively baggy clothes in which weapons can be hidden would probably be upheld.

       HOWEVER, the courts are often much too free to find a "rational basis" where there is none--like the CT case that banned BLUE jeans but allowed jeans of other colors.  The key to winning the rational basis test so as to allow parent opt-out, jeans, T-shirts, colors, patterns, etc., is to build a MASSIVE FACTUAL CASE IN TRIAL or by pre-trial depositions.  Many judges assume certain rules are rational--but  you can often show they are not! You need experts in sociology, clothing, child development, community/workplace clothing standards,  experience of schools which improve discipline without
 imposing dress rules, etc. You need FACTS and evidence to combat the presumption that the state is acting rationally in its dress code.

      For example,  the state (school) may contend that  uniform codes  are rational because they work elsewhere--improve discipline, attendance, academics, etc. In addition to disputing these alleged advantages, you need to TAKE THE  UNIFORM CODE APART PIECE BY PIECE. Make them prove WHY shirt neckbands must be banned in favor of collars; why all but 1-3 of the 256 colors must be banned; why blue (a Crips color!) is REQUIRED in some places and BANNED in others. Why SOME uni schools REQUIRE khakis--while others BAN khakis in favor of navy pants (and vice-versa). Ask WHY denim is not conducive to learning & discipline. Ask WHY stripes, checks or patterns are not acceptable--EVEN on oxford button-ups or polo shirts.  If you take the code apart  PIECE BY PIECE, the court may find NO RATIONAL BASIS for the main components of the code. Then the  school's argument that "the code works, even if we don't  know why,"  may ring hollow. The Judge  may find there is NO rhyme or RATIONAL reason for your code--especially when uniform codes differ so dramatically among themselves on such issues as  pants & shirt colors.

      Again, it is important  that you CONCEDE those parts of the code that DO  make rational sense, other than logo bans which are prohibited per Section I above. Then the Court may give the school a "victory" by upholding MOST of the code--but striking down the things most objectionable to us!  Keep in mind that  under the rational basis test, you will NOT win  a ruling declaring uniforms per se void--because your evidence they are bad is counter-balanced by the  evidence of the school that they are good. BUT you will be able to  DEFINITELY save logos/message clothing and HOPEFULLY strike
 down  many of the limits on fabric, colors, patterns and even styles (e.g., collar v neckband).  Further IF the code omits outerwear, socks and/or shoes as many do, you can claim it is IRRATIONAL to  just concentrate on tops & bottoms--since President Clinton spoke specifically about the danger of violence against kids wearing expensive coats and shoes!  He never warned of any danger from jeans and striped  or logo T-shirts!!

      FINALLY, the rational basis test SHOULD SAVE PARENT OPT-OUT!!!  Since this is our key issue rather than killing uniforms per se, GREAT effort must be put into this part of your case. The basic  point  is this: "Your honor, we concede that uniforms have been useful in many U.S. schools. BUT there is not a SCINTILLA of evidence  that they must be FULLY MANDATORY to have their beneficial effects.  Two of the school districts which report the greatest success from uniforms--Long Beach & Miami Beach--allow parent opt-out for ANY reason.  So EVERY school in those districts have SOME street-clothed kids attending, yet the schools STILL report GREAT success from a uniform program. Peer pressure will induce most kids to wear uniforms even if they are not 100  per cent mandatory.

     "Parents rights and parental support are the key to a successful uniform program. Fighting parents  is NOT an appropriate  or rational goal for a school system, especially if uniforms are supposed to increase school unity, spur parental involvement and bring order to a campus.   Again, your Honor, there MAY be a rational basis for this whole uniform program, although we
 don't think so. But the school   has presented NO evidence that parent opt-out destroys the benefits of a uniform program. U.S. experience is the opposite, and even the Government's own Uniform Manual  indicates that parent opt out is the rule and not the exception.  Denying parent opt-out definitely  is not a rational act of the school/ government!"

 That's It--show it to your lawyer. Case citations are available from me.

  gpk