August 6, 2007

School uniforms and state interest

A renewed debate over constitutional rights and school uniforms should be the basis for a discussion of the obligations of school districts to avoid fads. In general, federal courts have ruled that school districts are immune from first-amendment arguments because they have articulated plausible arguments for restricting student dress. As long as lawyers for the parents continue that argument, I suspect that districts will continue to win.

There are two levers with which to pry the policies loose. One would be an argument that school uniform policies are not narrowly tailored to meet the legitimate interests of the schools: concerns about gangs can be met by more specific dress codes, and concerns about social-class differences can be met by voluntary uniforms, contractual arrangements with clothing manufacturers to provide low-cost clothing, and parent education. This line of reasoning would hinge on the specifics and school-board rebuttals about the feasibility of these... and because plenty of schools have voluntary uniform policies, I suspect a school-board argument would be weaker in a "not narrowly tailored" fight.

In addition to arguing that mandatory uniform policies are not narrowly-tailored to serve the interests of schools, lawyers for parents could swing for the legal fences, arguing that where constitutional rights are affected, school systems are obliged to track existing research on proposed policies and follow the presumptive guidance of research. In this case, the existing research is fairly clear: uniforms do squat apart from symbolism. This argument is different from a simple challenge of a substantive state-interest argument (which I'd also recommend) but instead focuses on the decision-making process involved in policies.

This argument would be a radical change in the obligations of state actors vis-a-vis intermediate scrutiny: It would require some evidence to support the assertions that specific policies are likely to satisfy state interests. The argument would go something like the following for changing what intermediate (or strict) scrutiny requries of state agencies:

  • In the past, the courts have defined intermediate and strict scrutiny based on the value inherent in the state interest (either compelling or substantial) and the narrowness of the intervention required to satisfy that interest. These are both a priori judgments that are unrelated to the effectiveness of policies or the prospective evidence for a policy's theory of action.
  • In many areas of state action, including education, there is a growing value placed on evidence-based decision-making. The federal government is statutorily required to gather scientific data and make many environmental decisions based on the scientific evidence that exists at the time. The federal government requires states to support some instructional practices based on research evidence. States and local governments rely heavily on data collection and analysis for a broad range of regulatory purposes. In short, over the past half-century the professional standards for policy formation and implementation have risen from seat-of-the-pants judgments to informed deliberation.
  • Today, in many areas of state action, research exists to inform policy judgments. Where such research exists, it is now feasible to incorporate a research standard into the intermediate and strict scrutiny standards for First Amendment speech restrictions and Fourteenth Amendment equal-protection claims.
  • The proposed obligation would not be an onerous burden on state agencies. As described above, most have personnel or units with an existing obligation to track relevant research and conduct it, and such processes would only be triggered when the agency's general counsel indicates that a proposed policy interacts with constitutional rights in a way that requires paying attention to research.
  • The proposed obligation would also not subject agencies to spurious challenges based on ambiguous research findings. Where there is no preponderance of research on a topic, a court could presume the plausible legitimacy of a policy's theory of action, contingent on the agency's following up implementation with a rigorous and public evaluation in situ. Challenges on these grounds would exist only when a state agency conducts no review of research, ignores a clear consensus, or demonstrates clear disregard of the need for evaluation of policies that affect constitutional rights.

I have no clue whether this argument would be viable in a court (I am not a lawyer, and this is not legal advice), but I'd be very curious to know what you (readers) think of this proposed standard.

(For those following my slow trek through close-editing, I'm on p. 60 of 104.)

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Posted in Education policy on August 6, 2007 8:40 PM |