Capping Free Speech:
Graduation Attire and the First Amendment
By Emma J. Darling, Associate
Graduation is a big life cycle event, and many students wish to take the opportunity to stand out amongst a wave of one-colored caps and gowns by decorating their regalia with their own personal expressions. We see honor cords, medals, and other tokens for awards and honors that the school hands out, but how should districts respond to students who wish to decorate their mortar board, their gown, or wear an additional stole not given to them by the school?
Courts have continuously ruled that speech that is connected to a school-sponsored activity may be controlled by the school. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). The fact that students are allowed to wear sashes and stoles in recognition of certain school-related achievements and activities does not alter this conclusion. Griffith v. Caney Valley Public Schools, 157 F.Supp.3d 1159, 1164 (N.D. OK, 2016). Such items are allowed only for academic achievement or participation in school-sponsored activities and, crucially, are not worn over or affixed to the graduation cap. Id.
The school may also prohibit embellishments to regalia that are religious in nature. In the Griffith v. New Caney case, an Elder of the Delaware tribe gave a student an eagle feather, an object which is sacred according to the student’s Native American religious beliefs. The student wished to attach the feather to her graduation cap, but the school prohibited it. The Court held that the school’s interest in avoiding religious controversy is a legitimate pedagogical concern, and that preserving neutrality on matters of controversy such as religion is a compelling reason to prohibit the practice. See Griffith, 157 F.Supp.3d at 1164.
Forbidding students to decorate their regalia is a permissible policy under the law. Such a policy promotes unity, discipline, and respect for authority, and allows the school to reserve special recognition for student achievement or participation in school-related activities. See Fleming v. Jefferson Cty. Sch. District. R-1, 298 F.3d 918, 923 (10th Cir. 2002). However, in order to defend itself by claiming a neutral uniform policy, the school must be consistent with its application. One cannot make exceptions for crosses but not pentagrams. One should not prohibit a rainbow flag pin but permit an American flag pin.
Although many students may be disappointed, it’s perfectly acceptable to require students to wear their graduation regalia exactly as it was provided to them.
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