Snow is falling, the Huskers are losing, and hordes of small, candy-crazed monsters are about to descend upon us! Indeed, there are plenty of things to be afraid of when Halloween hits – but the celebration of Halloween in your school doesn’t have to be one of them. As a couple short stories from Steve’s favorite holiday remind us, the First Amendment isn’t always that scary.
The First Amendment and Student Dress & Appearance
It was October 31, 1988. Steve Williams was a senior in high school, and his mom stopped him on his way out the door to school. Steve was wearing his usual Halloween costume (zombie-nurse, of course), but his mom was concerned that the costume’s skirt was inappropriate for school. In fact, the skirt fell far short of the “finger-tip” rule that Steve’s school followed. When she voiced her concerns, Steve quickly retorted, “It’s a free country, mom! And no one can stop me from expressing myself. Not you, and definitely not the school!”
Was Steve right? Do students have the right to celebrate their favorite holiday in their costume of choice, no matter how disruptive or distracting it may be? Fortunately for school administrators (and Steve’s classmates) the answer is a resounding no!
The First Amendment protects the freedom of speech and expressive conduct. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court of the United State acknowledged that students have some First Amendment Rights to free expression while at school. In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), the United States Court of Appeals for the Eighth Circuit applied those First Amendment rules to student dress codes. However, both courts recognized that a student's right to free expression while at school is limited, and that administrators may take appropriate steps to curtail student dress and appearance that interfere with the educational environment.
In fact, school administrators are afforded “comprehensive authority” to regulate student expression and activity that actually does, or is reasonably forecasted to, “materially and substantially interfere with the work and discipline of the school.” Tinker, at 507, 513. In Tinker and Bishop, the courts explicitly distinguish the regulation of non-disruptive forms of speech (such as prohibition on political buttons) from the regulation of disruptive forms of dress (such as a minimum skirt length). While the former is an inappropriate restraint on speech under the First Amendment, the latter is a necessary authority of school administrators tasked with maintaining an orderly educational environment.
Haunted Halls and the Establishment Clause
When Mrs. Williams reached Steve’s school to bring him a change of clothes, she was horrified to find that the school was decorated with what she called “symbols of the occult.” According to her, the school was promoting the worship of Satan and the occult in in violation of the First Amendment’s establishment clause. Could she bring suit against the school and force it to remove the decorations?
The answer, again, is no. It is true the Establishment Clause of the First Amendment limits schools in how they celebrate traditionally religious holidays like Christmas. However, the courts have been skeptical of claims that Halloween displays are school endorsements of religion. Even though the Halloween decorations may depict images that in some contexts relate to a religion or faith, they are not distinctly religious objects that invoke scrutiny under the First Amendment. The Supreme Court stated in Lee v. Weisman, 505 U.S. 577 (1992) that:
“The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”
“By its participation in these Halloween festivities, the school board does not send an unmistakable message that it supports and promotes Wiccan beliefs.” Guyer v. Sch. Bd., 634 So. 2d 806, 809 (Fla. Dist. Ct. App. 1994).
Conclusion
Though material and substantial disruption is the goal of many students on Halloween, schools should feel confident in enforcing rules and regulations necessary to avoid that horror. Schools should also feel safe to leave the broom, cauldron, and witch decorations up without concern that it is an impermissible endorsement of religion. While the First Amendment is often a rule of common sense in schools on Halloween, don’t be afraid to share any fears about student speech – or any other issues – with your school’s attorney, or call Karen, Bobby, Steve, Coady, or Jordan. Just make sure that when you talk to Steve, you check to see whether he is wearing his zombie-nurse costume before you make the mistake of Zooming or FaceTiming him.