As kids go back to school around Michigan, many of them are dressing a bit differently than they’re used to. Some Michigan public schools, including schools in Saginaw, have instituted dress codes; schools in Jackson are also considering implementing such a code. Dress codes have been a long-standing controversy in public schools around the country and this has resulted in quite a patchwork of legal precedents for schools to steer through.

The Supreme Court has never squarely faced the question of whether dress codes are constitutional. They have, however, dealt with several related questions, most of them involving bans on expressive clothing. The most famous case is Tinker v Des Moines, a 1969 case involving students who wore black armbands to protest the Vietnam war. In that famous case, the court ruled 7-2 that the school could not censor this form of expression unless they could show that it was likely to result in material disruption of the school’s educational mission.

But in fact, this ruling was not really about dress codes; the school in that case did not have a dress code and the policy here was aimed solely at this particular form of expression and the message it conveyed. A generally applicable rule that is content-neutral, on the other hand, is likely constitutional. To use an analogy, you can’t be arrested for burning a flag, but you can be arrested for violating a general ordinance against burning because that rule would be applied regardless of whether the burning was performed for an expressive purpose.

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Because there is no clear precedent from the Supreme Court on dress codes, lower courts around the country have issued a variety of rulings on the matter. Some courts have applied the standard from Tinker, saying that schools cannot forbid a particular message on a shirt unless it is likely to cause imminent disruption. For instance, the schools in Albemarle, VA had a rule forbidding any clothing with a depiction of weapons on it.

The 4th Circuit Court of Appeals struck down that part of the school’s dress code in a lawsuit filed by a student who wore a t-shirt from an NRA sport shooting camp to school. The court ruled that the ban was overly broad and was not narrowly tailored to achieve the school’s interests. The court noted that the rule was so broad that it would forbid a student from wearing a shirt with the mascot of the University of Virginia on it because that mascot had two crossed sabers. But this, too, is not really a ruling that deals directly with a general dress code, only with explicit restrictions on particularly types of expressive clothing.

Some schools have instituted partial dress codes that say, for instance, that one cannot wear “saggy” pants that hang down and expose one’s underwear. One such code in Albuquerque, NM was challenged by a student who was repeatedly suspended for voilations. The student argued that saggy pants were an expression of African-American heritage, but the court rejected that argument.

In that case, the court applied a test similar to that used in earlier flag burning cases, asking whether the action is truly expressive and whether a reasonable observer would view it as expressive. The court ruled that the conduct did not express any particular message, that it was “not necessarily associated with any single racial or cultural group,” but was rather “merely…a fashion trend.” But again, this can be distinguished from a general dress code requiring students to wear particular types or colors of clothing.

More directly on point is a 5th circuit case, Canady v. Bossier Parish School Board. This case dealt directly with a policy requiring school uniforms in a district in Louisiana. The policy was challenged in court and the district court ruled in favor of the school district; the Court of Appeals upheld that ruling in 2001. In essence, the court said that because the policy was content-neutral and was passed for the purpose of improving school discipline rather than for the purpose of regulating expression, it was constitutional. And though the Supreme Court has never confronted this question directly, I would expect them to rule in a similar fashion should a case reach them in the future.