Why Can’t I Wear My Halloween Costume to School?

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Last week, Augie’s school announced that, instead of Halloween, it would be celebrating a “Fall Festival,” without costumes, which would not be allowed. The announcement was not surprising, given the trend to dial-back Halloween celebrations in public schools. But it prompted Augie to ask me “Why can’t I wear my Halloween costume to school?”

Here’s the simple answer: because that’s what your school said. And that explanation generally rests—at least for Halloween costumes, student clothing, or student grooming standards in general—on pretty solid legal and constitutional grounds. But the nice thing about having a five-year-old and a teenager in the same house to toss around pseudo-legal questions is that Augie will ask “why can’t I?” while Max will ask “what if I do?” As in, what if—despite what the school says—I wear a costume to school? He then added “and what’s the line between a costume and not a costume anyway?”

As for the reasons for cancelling Halloween, public schools generally give at least one of the following explanations for eliminating Halloween from the school calendar:

  1. Halloween celebrations are religious observances and, if held at a public school, violate the establishment clause of the First Amendment; or
  2. Students with religious objections will not participate in Halloween celebrations or may be offended by them, thus either staying home or feeling left out or ostracized. We want an inclusive environment, so we’ll get rid of the witch costumes and try to be less Halloweeny, like, say, renaming things to the Harvest Frolic or a Cornucopian Carnival; or
  3. It is not part of our educational mission to parade around in costumes and eat candy all day;

The first reason is specious, given how secularized Halloween has become—no one is suggesting we’re celebrating All Saints’ Day or going back to celebrating the pagan tradition of Samhain, with divination rituals, a ring of stones, and the summoning of fairies. No, Halloween has instead become a profitable way of selling leftover Milk Duds, Mr. Goodbars, and all the other candy that doesn’t sell during the rest of the year. Honestly, it is currently a commercial, secular day of the year.

The second reason raises a possible constitutional issue for those who DON’T want to partake in Halloween. So long as the school allows them to opt out (and even this may not be constitutionally required), things are good. But schools, ever wary of lawyers and lawsuits, just figure they’ll do away with the whole problem and call Halloween something else, even if a Fall Saturnalia ironically harkens back to pre-religious, pagan traditions.

Of the three explanations schools use to do away with Halloween, the third one rests most solidly on legal grounds. Basically, schools that take this approach believe that goblin-like merry-making consumes class time that is better spent educating kids. And courts generally won’t argue with that.

Undeterred, and also prompted by teenage fairness and rebelliousness, Max wondered what would happen if his little brother wore a costume to school anyway. I said the school would tell him to take it off and, if he didn’t, we’d get a call and he may get sent home. But, Max asked, doesn’t Augie have the freedom to express his personality at school through whatever he wants to wear?

Sure, but just watch what you wear and what your message is. For instance, you can’t wear a t-shirt with “Drugs Suck” on it (the Drugs Suck case). You cannot unfurl a banner across the street from school with the ironically funny but apparently drug-promoting message BONG HiTS 4 JESUS (the BONG HiTS 4 JESUS case). But you can, at least for now, wear a silicone bracelet with the message “I ♥ boobies (KEEP A BREAST)” (the I ♥ Boobies case). That apparently is OK, though the school district voted just last night to appeal the decision to the US Supreme Court.

To be honest, the whole student free speech issue is a bit of a mess, with varying standards being used, depending on the message the student is making and how that message is being conveyed. Sure, things started off strong for student rights in 1969 with the seminal Tinker decision, which involved three students who wore black armbands to school in 1965 as a silent protest against the Vietnam War. The school quickly banned the armbands (but didn’t ban political buttons) suspended the students, and set the stage for a Supreme Court decision. The students won, with the Court ruling that a public school student may express an opinion on controversial subjects:

if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.

After Tinker, courts considering a student’s free speech rights at school (or sometimes outside of school)  try to figure out the balance between a student’s right to free speech and a school’s need to maintain its disciplinary line against chaos. For the most part courts have been conservative when it comes to student free speech protections, giving public schools wide leeway in maintaining control over what students say, do, or wear. That was the general gist of  Tinker, which also said that the case did not relate to “the length of skirts or the type of clothing, to hair style, or deportment.” And that’s Augie’s problem. His Halloween costume doesn’t really convey a message other than “I like knights,” or “Yay, Halloween!,” or “Dressing up is awesome!” As one court has said “[n]ot every defiant act by a . . . student is constitutionally protected speech.”

Take, for instance, a New Mexico high school student who wore sagging pants to school, in violation of the school’s dress code. After being suspended, he sued the school district. The court, however, was at a loss to figure out what part about wearing sagging pants was speech protected by the First Amendment. While lawyers tried to make a case that “sagging pants are a way for him to identify and express his link with his black identity, the black culture and the styles of black urban youth,” the court was unconvinced. Basically, the court said, there’s no protected speech being made by wearing his sagging pants.

Or, take the case of Aloysius Dreaming Bear,  a young Lakota man who wanted to wear traditional Lakota clothing at his high school graduation, rather than the school’s required cap and gown. While the court recognized that Dreaming Bear’s choice of clothing was expressive conduct entitled to First Amendment protection, the court ruled that the school had a legitimate and greater interest in maintaining “ultimate control over the content and orderly progression of the [graduation] proceedings.”

Ultimately, I have serious doubts that a public school kindergartener has a constitutional right to show up at school dressed as a medieval knight, even if he leaves his foam sword behind as a nod to the school’s weapons policy. While it may be an expression of his personality or may exude solidarity with other Halloween-costumed knights and goblins across the globe, I’m not sure it’s expressive conduct protected by the First Amendment. Besides, a defiant costume wearing kindergartner will likely substantially disrupt his class, especially if the class is trying to learn all about the wonderful festivities that occur in the Fall and he’s exclaiming “how dare you enter my kingdom!.”

Given the descriptive trajectory of legal cases dealing with public school students’ First Amendment rights—from Tinker to BONG HiTS 4 JESUS to Boobies—what’s an activist kindergartener to do if he’s jonesing to buck the system by wearing a medieval knight costume to school? If costumes are prohibited, my advice is this: don’t do it. Just wear a black armband with “I ♥ Goblins (Keep Halloween)” on it as a protest over the school’s elimination of your favorite holiday. Protesting a dress code by wearing a button that protests the dress code actually appears to be allowable free speech in public schools.

Gregory D. Luce is the editor of Bitter Lawyer. Among other things, he writes Legal Crap My Kids Ask Me, answering pseudo-legal questions he actually receives from his kids. God help you if you think the answers constitute legal advice.

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