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Mandatory School Uniforms and Freedom of Expression

Introduction

On December 10, 2007 the Akron City School Board--following the precedent set by many

school systems across the United States and the world--instituted a policy of mandatory school

uniforms for all students in grades K–8. The measure was met with mixed reviews from parents.

While many supported the measure, a small group of parents from a selective, arts-focussed,

middle school (grades 4–8) objected to the policy. It was their contention that children attending

this particular school should be exempt from the policy since their children were particularly

creative, and the new policy constituted an unjust infringement of their child’s freedom of

expression, and the policy violated their parental rights. On the other hand, the school board and

several educators argued that school uniforms would foster discipline, promote equality and

increase overall academic performance.1

The debate over school uniforms is one that has taken place in numerous school districts

since then president Bill Clinton put the issue front and center in his 1996 state of the union

address. Rarely in the course of these debates have the philosophical or moral implications of

mandatory school uniforms been considered. Do school uniforms violate a child’s freedom of

expression? Do parents have a right to dress their child as they deem appropriate? Can the

imposition of school uniforms be justified even if it curtails a child’s right to freedom of

expression? While many philosophers have written on children’s rights, few if any have directly

addressed the issue of children’s expressive rights. In cases where children’s actual interests,

desires, or preferences have been considered, the discussion has mainly focussed on older

children and their rights in relation to custody decisions, inculturation, or civic education.2 In this

paper I examine the issue of freedom of expression and school uniforms and argue that while

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mandatory school uniforms may not violate a child’s freedom of expression, there are good

reasons to think they are inappropriate on other grounds.

In making the case against mandatory school uniforms, section 1 begins with a look at the

legal precedent that has informed much of our normative thinking about the issue. Section 2

examines the different types of expression and discusses how a child’s lack of certain cognitive

abilities results in the conclusion that children do not have a right to freedom of expression.

Section 3 considers the nature of children’s rights and how the ideas developed in section 2

should inform our thinking about children and their future interests in freedom of expression.

Finally, section 4 offers a more morally appropriate view on schools, students and dress.

1. Legal Precedents

The apparent lack of interest in the issue of school uniforms may in part be due to a

number of court rulings stating that children are not entitled to the same protections as adults.

These rulings, along with the general belief in the benefits of mandatory school uniforms, has led

to their general acceptance.

Before looking at some of these cases, a few preliminary remarks are in order. First, in

presenting and critiquing these fairly prominent court cases I do not intend to offer an analysis of

constitutional law or jurisprudence. These cases are meant to exemplify general social attitudes

surrounding children and expression, and particularly those of schools and school boards.

Secondly, unlike other seminal cases of children’s or parents’ rights, outside of a few cases

dealing with older children (12 yrs. and older) the Supreme Court has not given a definitive legal

opinion on the issue. The opinions that currently hold sway are those from the Fifth and Eighth

Circuit Courts of Appeal, along with a related U.S. Supreme Court case dealing with a violation

of a dress code policy, but not with the constitutionality of the dress code itself.

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1.1 Tinker v. Des Moines Community Independent School District 3

The first and only U.S. Supreme Court case to deal with the issue of dress and expression

was the 1969 case of two high school students, John F. Tinker 15, and Christopher Eckhardt 16,

and junior high student Mary Beth Tinker 13, John's sister. The defendants in this case were part

of a group of parents and students that had met in the Eckhardt home in December of 1965 and

had decided to publicly express their disapproval of he war in Vietnam by wearing black

armbands throughout the holiday season. Before the students could proceed with the protest, the

principals of the Des Moines schools heard about the protest, and adopted a dress code policy

that forbade any student from wearing an armband to class. If a student was asked to remove an

armband and refused, he or she would be faced with immediate suspension. On December 16,

1965, the defendants wore the armbands to school and—after refusing to remove them—were

suspended from each of their respective schools. The parents of the children subsequently sued

the school district with the case eventually making its way to the U.S. Supreme Court.

In making its decision, the Court did not address the issue of school dress codes or school

uniforms, though it did note that the case did not relate to those issues. Rather, the court noted

that the case was one about expression, and was in fact a case of ‘pure speech’ which did fall

under the protection of the First Amendment. As the Court noted:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.4

Though the court recognized the first amendment rights of the students, it was careful to note that

the school district (or in this case the principals in the district) would have been justified in

banning the armbands had they been able to show that this conduct would ‘materially and

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substantially interfere with the requirements of appropriate discipline in the operation of the

school.’5

While Tinker is often cited in cases involving expression in the context of the public

school, it has little to do with the relationship between expression and uniforms. While the court

did mention that schools may be justified in limiting expression, they did not determine whether

dress codes or uniforms posed constituted a significant infringement on expression. For an

analysis of this issue, one needs to appeal to the district courts for legal insight.

1.2 Littlefield v. Forney Independent School District 6

Although not a Supreme Court case, the ruling in Littlefield provides one of the clearest

and most direct arguments for the constitutionality of school uniforms. The case involved the

implementation of a mandatory school uniform policy in the Forney Independent School District

in Forney, Texas. The uniform policy was adopted with the express purpose of improving the

social atmosphere and performance of the district’s students. As cited by the third district court,

unforms were to “promote decorum (and thereby the notion that school is a place of order and

work), to promote respect for authority, to decrease socioeconomic tensions, to increase

attendance, and to reduce drop out rates.”7 Faced with the uniform policy, parents took their case

to court claiming that the school district had violated their children’s First and Fourteenth

Amendment rights to freedom of expression and equal protection.

One of the salient features of the Littlefield case is its application of the O’Brian8 test to

determine whether uniforms violated freedom of expression, or (if they do violate freedom of

expression) whether such a violation could be justified. The O’Brian test consists of four

questions that help guide content-neutral restrictions on freedom of expression. As stated by the

court:

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Applying O’Brian to the challenged governmental policy at issue, the Uniform Policy will survive constitutional scrutiny if (1)it is within the constitutional power of the government, (2)it furthers an important or substantial government interest, (3) the interest is unrelated to the suppression of student expression, and (4)the incidental restrictions on First Amendment activities are no more than is necessary to facilitate that interest.9

According to the Fifth Circuit court, the school district had met the O’Brian test on each

and every point. The school board was empowered by state law to require uniforms. Since the

purpose or intent of the uniform policy was to increase academic performance, improve

discipline and self-esteem and lower drop-out rates—these purposes being well within the

purview of the schools—uniforms were justified. Further, since the interests the uniforms served

were not intended to restrict the student’s free expression, there was no direct violation al la

Tinker. Finally, the restriction on speech in this instance was limited to dress and therefore did

not extend to other forms of expression.

1.3 Canady v. Bossier Parish School Board 10

In a case much like Littlefield, the issue facing the court in Canady was one which directly

addressed the relationship between expression and mandatory school uniforms. As in Littlefield,

the Fifth Circuit ruled that school uniforms can be justifiably required by schools. Unlike

Littlefield, the court recognized the significant connection between speech and one’s choice of

clothing. As the court wrote:

(1) The choice of clothing can be an instance of pure speech, as when a student wears a shirt of jacket with a written political message on it. (2) Clothing may also represent one’s ethnic heritage, religious beliefs, and political and social views (3) Clothing may be a means by which students indicate the social group to which they belong, the activities they participate in, or their attitudes toward society and the school environment 11

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While each of these considerations would seem to indicate the importance of dress as a means or

mode of expression, the court still concluded that there was an overriding state interest in

fostering a specific type of atmosphere within the school context. Because of the unique nature of

the school setting, the court ruled in favor of the school district.

In addition to the idea that the school constituted a unique context in which speech could

be regulated, the court also noted the apparently factual claims that the uniform policy had

improved the test scores of the children in the district. According to the court, this claim had not

been disputed by the plaintiffs, and thus lent further support to the state’s interest in maintaining

its uniform policy. As I will discuss in section 3, the causal relationship between uniforms and

student performance is tenuous at best.

2. Children and Expression

If we take the issue of school uniforms strictly from a legal perspective, the vast majority of

cases support a school board’s right to require school uniforms. As noted in Tinker, schools

cannot abridge all speech, but they can restrict the form of its expression in the choice of

clothing. In Littlefield and Canady, the court held that although clothing could be construed as

speech, the context in which speech takes place can be considered. Freedom of speech is not

absolute in the public school context, and therefore given the state’s interest in education,

uniforms are acceptable. While there may be some merit to extending this authority to the

schools, the rulings also reflect a carelessness in the courts’ thinking about children and

expression generally.

2.1 Defining the Children in Question

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While the rulings in these cases appear reasonable, they also ignore some of the salient

moral features of the issue of mandatory school uniforms. To begin with, the courts ignored the

age of the students in deciding whether their speech could be limited. There are a number of

reasons to suppose that children, particularly very young children, do not have the capacity for

pure speech acts through clothing. In the case of older children, it is less clear why we do not

recognize their right to freedom of expression. For the purposes of this paper, I will restrict my

argument to younger children, that is, children in the primary grades (ages 5-11). It is my

contention that the lack of certain capacities in children in this age range entails that limiting

their expression is not a violation of their rights. I do believe that as children (or perhaps it would

be better to describe them as young adults) approach junior high and high school age, there are

good reasons to hold that restrictions on expression are morally problematic. So while my focus

here is on the reasons why younger children are not capable of the type of expression that may

warrant respect or protection, I believe it has broader applicability to the case of older children.

By having a clear understanding of why certain children are not capable of what I term

‘substantive expression’, it makes it easier to see when older children do have valid rights claims

against the imposition of things like mandatory school uniform policies.

2.2 Modes of Expression

The contention that children do not have a right to freedom of expression is not to say that

children are incapable of expression, only that they are incapable of the type of expression we

normally believe ought to be protected. Children, particularly those between the ages of 4–11,

are capable of what I term mere expression.12 We engage in acts of mere expression when we

choose which type or color of shirt we are going to wear. I might choose a bright colored shirt if

I am feeling especially happy, while I might choose a darker colored shirt if I am feeling a bit

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blue. Sometimes my clothing choices may say something about my body image at that particular

time. Other times, my choice may be completely arbitrary. This type of expression is not limited

to color choice or clothing, but may also be reflected in things like facial expressions, posture, or

general body language. In most instances, mere expression is non-cognitive in that I am not

aware, nor am I attempting to say anything to anyone. Thus, mere expression is represented by

actions or things that connote any number of acts that others may or may not be able to infer as

an intentional act of will.

On the other hand, there are times when we intentionally express something. When I

engage in an action in which I intend to communicate something to others I am engaging in

substantive expression. Substantive expression occurs when an individual performs an

intentional act which they desire others to recognize as an intentional act of expression.

Substantive expression is by its very nature social in that the individual doing the expressing

desires some public recognition or understanding of the expressive act. For example, in the

Tinker case presented in the previous section, it is clear that the children (or perhaps more

properly the young adults) were engaging in an act of substantive expression. The intention

behind wearing the armbands was to raise awareness of the casualties of the Vietnam War. Thus,

substantive expression is distinguished from mere expression by its intentional nature. Children

by and large lack the ability to engage in this type of expression, particularly where the

expression is both intentional and symbolic.

In addition to the question of a child’s mental capacities, there is another obstacle to

substantive expression. Since children rarely if ever have the means or opportunity to

independently purchase or choose their clothing, it is difficult to see how they could truly

express themselves through the choice of clothing. It is more likely to be the case that the

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clothing is a reflection of how the child’s parent or parents wish present their child to the world.

But, even assuming that there are extremely liberal parents that allow their children to choose the

clothes they want to wear, as was mentioned above, it is doubtful that children have the capacity

to choose clothing that represents anything more than an act of mere expression.

2.3 Development of Substantive Expression

While the school age children being considered here are not capable of substantive

expression, they will ceteris paribus develop this capacity. So while the imposition of school

uniforms may not be a violation of a child’s freedom of expression, at a certain point children

will have the capacity for using things like clothing as a meaningful act of expression. Although

there is some debate as to how this transition occurs, recent theories of child psychological and

moral development suggest that it is through interactions with others, particularly those that are

further along in his or her moral and cognitive abilities, that a child moves from one

developmental level to another. Vygotsky

According to L. S. Vygotsky, children exhibit two types of learning and thus two types of

cognitive development. The first is termed the actual developmental level.13 The actual

developmental level of a child is defined by the types of things a child can do on his or her own

without help from others. When examining the issue of children and expression, the courts seem

to focus on this metric of development. Since children’s actual developmental level does not

include the capacity for independent substantive expression, we do no wrong in limiting the

outlets they might have taken advantage of had they been capable. But to focus solely on the

actual developmental level of children would be to miss another important measure, namely,what

Vygotsky terms the ‘zone of proximal development’. The zone of proximal development is a

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measure of the potential development of a child as demonstrated by their ability to solve

problems under adult guidance or along with more developed peers. As Vygotsky writes:

The zone of proximal development defines those functions that have not yet matured but are in the process of maturation, functions that will mature tomorrow but are currently in an embryonic state. These functions could be termed the ‘buds’ or ‘flowers’ of development rather than the ‘fruits’ of development’.14

So while children may not possess those capacities for substantive expression, they will

through learning and imitation develop them. Furthermore, many children may already have

some of the capacities necessary for attaining the actual developmental level necessary for

substantive expression, but lack the guidance of adults for their full realization. So the fact that

children will eventually develop the capacities for substantive expression does not entail that we

can or should simply wait for these capacities to develop. Rather, we should be taking an active

role in seeing that children are given the proper support or scaffolding necessary to move to the

next developmental level.

Thinking Time

Recently, studies in Ireland have born out Vygotsky’s views on the zone of proximal

development. In How Children Become Moral Selves,15 Josephine Russell engaged in a study that

was conducted on the nature and extent of the moral awareness of a group of Irish school

children beginning when they were between seven and eight years old and ending when they

were between 12 and 13 years old. The group’s moral development was gauged by the responses

they gave during “Thinking Time” sessions. A Thinking Time session is essentially a form of

class discussion on moral issues facilitated by the teacher. Through these discussions, Russell

was able to draw conclusions about a child’s ability to reason from various moral frameworks

(e.g., justice, care, fairness, etc.) as well as whether their moral development is consistent with

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many of the leading psychological theories on children’s moral development, particularly those

of Piaget, Kohlberg, Gilligan and Vygotsky.

Throughout her study, Russell notes the major leaps her students made when regularly

engaged in dialogue with others. With help, students were able to reason in ways they would not

have been able to without the interaction with others. As Russell writes:

Vygotsky (1978) argued that children function at a higher intellectual level within collaborative structures. I found evidence for this with increasing exposure to philosophical enquiry. There was a greater ability to tease out an issue and arrive at some sort of conclusion.16

This higher intellectual function was a direct result of the interactions between instructor

and students. It also demonstrates both the importance of these interactions and the inchoate

capacities that children possess. In order to ‘tease out an issue’ and ‘arrive at some sort of

conclusion’, children require the support of adults. This same type of exercise could easily be

extended to the abilities necessary for expression. It is interesting to note that in Tinker, the

children did not come up with the idea of using armbands as an expression of protest on their

own, but did so with the support of their parents and other adult group members.

The development of substantive expression does not arise spontaneously, rather it develops

over time. Thus, as children’s capacities increase, so should their rights. If we take seriously a

gradualist account of rights, coupled with an obligation on the part of parents and the state to

create the values necessary for inclusion in the moral community, then we may have a role to

play in children developing the capacity to express themselves in a myriad of ways, including

expression through clothing. As I shall argue in section 3, a gradualist account of children’s

rights, combined with the fact of the gradual development of children’s capacities leads—along

with empirical evidence that counts against the effectiveness of mandatory uniform policies—to

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the conclusion that although uniforms may not violate children’s rights, they may do a disservice

to children in other ways.

3. Children and Rights

School uniforms do not violate a child’s right to freedom of expression since children lack

the capacities necessary for substantive expression. But while children lack these capacities, with

time and training children will eventually develop the ability to express themselves in

substantive ways. This movement from an actual lack of capacity, through the zone of proximal

development, to the actual capacity does not happen in a vacuum. It requires that others,

primarily adults, act as exemplars for the child.

This progressive nature of a child’s development has implications not only for the issue at

hand, but for the nature of rights in general. If rights protect the choices individuals make, and

children lack the capacity to make the sorts of deliberate choices rights protect, then from a

choice perspective our work here is done. A child’s right to freedom of expression will be

protected at some distant time in the future. On the other hand, if rights protect interests, then we

may still hold that a child has no choice at stake, while also holding that the child’s future

interest in expression places moral demands on those responsible for them. In the sections that

follow I discuss the gradualist approach to children’s rights that takes into account both choice

and interest. This account has the additional strength of compatibility with the Vygotskian view

of children’s development.

3.1 Gradualist Account of Children’s Rights

The gradualist holds that the rights we can ascribe to children are gradual in that they move

from primarily interest protecting to primarily choice protecting. The gradualist account I will

discuss here is the one proposed by Samantha Brennan in “Children’s Choices or Children’s

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Interests: Which do their Rights Protect?”17. According to Brennan, both the choice and interest

accounts of rights fail to take seriously the moral status of children. In the case of choice

accounts, the very fact that children--particularly very young children--cannot make choices, or

at least cannot make the sort of competent choices that deserve protection, entails they do not

have rights. The response to the choicist position is to hold that rights protect a child’s interests,

since a child can have interests even if they cannot make choices. This account appears to

preserve rights for children, while still acknowledging their dependent status. But the protection

of interests can only go so far, since a child will eventually become capable of choosing for

themselves. What is salient about this point is that this ability will develop incrementally and

over an extended period of time. Rather than looking for a distinct point at which interest

protection gives way to choice protection, Brennan argues that we ought to view rights and the

things they protect as existing on a continuum. As she states:

The picture I prefer is one in which children move gradually from having their rights primarily protect their interests to having their rights primarily protect their choices. This reflects the transition of the child from being a creature whose interests are of moral concern, and hence deserves the protection of rights, to being a creature who can choose for herself.18

The gradualist approach to rights is sensitive to the developmental nature of children, and

as such reflects the reality of agent development. Implicit in this account is a parent’s

responsibility to foster the growth and development of the child. Parents and other caregivers

have an obligation to protect a child’s interests, including the child’s interest in becoming an

agent capable of choice. The movement of children from beings that primarily have interests that

are protected to those who have their choices protected requires the kind of Vygotskian guidance

mentioned in section 2. Children do not just magically attain the capacity for meaningful choice,

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they develop it over time with the assistance of those who already have it. The capacity for

choice, be it in clothing or anything else, develops in children by the exercise of a limited form

of expression, that is, expression under the guidance of a caregiver.

3.2 Circumscribed Normative Automony

The capacity for substantive expression develops gradually as a child is allowed to express

themselves in various ways. This limited form of expression can be thought of as a form of

autonomy and is analogous to what Hugh LaFollette has termed “circumscribed normative

autonomy”19. According to LaFollette, there are two types of autonomy, namely, descriptive

autonomy and normative autonomy. Descriptive autonomy denotes the ability of an agent to

make rational and informed choices based upon knowledge and experience. Normally, agents

capable of making choices of this type are viewed as deserving of having those choices respected

or at the very least protected. The respecting of such choices, or the recognition of choices as

carrying moral force is defined as normative autonomy.20

According to LaFollette, normative autonomy deals with how parents and authorities

should relate to children. The distinction between descriptive and normative autonomy has,

according to LaFollette, often been blurred. The assumption has traditionally been that children

are not descriptively autonomous and thus we should not grant them normative autonomy.

Usually, the granting of normative autonomy is fixed at some predetermined age such as 18 or

21. As Lafollette states:

We construed both descriptive and normative autonomy as all or nothing. We assumed that an individual either is or is not descriptively autnonomous, and that if she is, then she should have complete normative autonomy, complete say over her self-regarding choices. We correspondingly assumed that if someone is not descriptively autonomous, then we should not give them any normative autonomy. This view puts excessive moral weight on questionable empirical claims and blurry conceptual distinctions. Thus, we confine children to practical purgatory where they have no socially recognized autonomy until,

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upon reaching the magical age of seventeen, eighteen, or twenty-one (depending on where they live), they suddenly become infused with it.21

LaFollette’s response to this all or nothing approach to autonomy is to extend to children

what he calls “circumscribed normative autonomy”22 Circumscribed normative autonomy is a

means of recognizing that children, though not descriptively autonomous, can exhibit some

autonomous traits. In order for children to become autonomous, they must be trained in making

autonomous choices. There is no magical moment when a child achieves descriptive autonomy, it

is something that develops over time with guidance from adults. So, while children aren’t

autonomous, we as adults have an obligation to help them achieve this descriptive ability.

It is easy to see how circumscribed normative autonomy can be extended to children and

expression. Just as autonomy is something that develops as children are provided opportunities to

make decisions under the guidance of adults, so too can expression be developed by extending to

children circumscribed normative expression. Giving students some choice in the clothing that

they wear, along with an understanding of what counts as appropriate or inappropriate in a

particular context, we further their development.23

3.3 Failure of School Uniforms

While the idea of circumscribed normative expression may be appealing, one objection that

may be raised is whether substantive expression can be achieved without bringing uniforms into

the picture. In other words, given the supposed benefits of uniforms coupled with the fact that

their imposition is not violating the rights of young children, why not maintain uniform policies?

Surely, the objection continues, we can teach children about when, where, and how to express

oneself through clothing in a number of social situations-- weddings, funerals, banquets, etc.--so

it would seem that in this one instance we could forgo the “teachable moment” in favor of the

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greater utility achieved through uniforms. Shouldn’t social utility considerations take precedence

in the absence of a legitimate rights claim?

This response to circumscribed expression would be compelling if in fact uniforms did

accomplish the objectives claimed by their proponents. In School Uniforms: A Critical Review of

the Literature24 by David L. Brunsma examines three types of studies dealing with school

uniforms and their effectiveness. The first are studies of the attitudes of administrators, teachers,

parents and students toward both mandatory and voluntary uniform policies. The second deal

with small-scale studies, that is, studies of a single school or a group of schools that have

implemented uniform policies. Third are the large-scale studies that examine uniform policies

through a national representative sampling of both schools that implemented uniforms and those

that did not.

Given the popularity of uniform policies, along with the substantial support the courts have

given them, one would expect to find overwhelming empirical evidence that uniform policies

have a positive impact on academic performance, school environment or both. What Brunsma’s

survey (along with his own research) brings to light is the striking lack of a correlation between

the implementation of a school uniform policy and the positive effects claimed by the proponents

of such policies. While several studies found an increase in the perception that uniforms had a

positive impact on factors such as attendance, discipline, self-esteem and academic performance,

these perceptions failed to map onto the measured outcomes.25 Of course, our concern here is not

with perception, but with actual effectiveness. If proponents of uniforms rely on the benefits of

these policies to justify their existence, then they must be able to point to evidence supporting

their effectiveness. Without evidence of their effectiveness, the imposition of uniforms would be

nothing more than a form of collective self-delusion. So while uniforms may not infringe upon

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the rights of children, their imposition may cause us to miss an opportunity to aid children in

their development of substantive expression.

The results of small and large scale studies of the actual effectiveness of uniforms (versus

their perceived effectiveness) has proven at best indeterminate. The small-scale studies that

found an improvement in academic achievement after the implementation of a uniform policy

also found that other school reforms were more likely the reason for the improvement. As

Brunsma notes about one of the small-scale studies he examined:

Mary Louise Murphy’s case study of an elementary school that implemented a uniform policy examined discipline referrals, academic achievement on standardized tests, and attitudes of students, parents, and staff. While students’ standardized test scores did increase after the policy was implemented, Murphy attributed this increase to the school’s academic program, which was in its second year, and test preparation practices. Behavioral referrals decreased after the school uniform policy was established, but Murphy speculates that the decline was more likely due to a newly implemented schoolwide problem-solving curriculum.26

Large scale studies of the effectiveness of school uniforms, while initially appearing

promising, have also failed to support the claims of their proponents. In the first and--according

to Brunsma--most popular study conducted in the Long Beach Unified School District, school

uniforms were required for all elementary and middle school students. The results of the study

appeared to support the effectiveness of uniforms. As Brunsma writes:The now classic findings indicated that suspensions in elementary schools declined by 28% and in middle school by 36%. The percentage of school crimes reported in kindergarten through eighth-grade also decreased: assault and battery by 34%, assault with a deadly weapon by 50%, fighting by 51%, sex offenses by 74%, and vandalism by 18%27.

While these initial findings appeared promising, the researcher, Sue Stanley, was reluctant

to draw any conclusions regarding school uniforms. As with the small-scale studies, uniforms

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were not the only changes made to the system that could account for the dramatic changes in the

school statistics. As Brunsma notes:

Proponents of school uniform policies used Stanley’s research to support their position, even though Stanley urged caution in interpreting the data, noting that ‘it is not clear that these results are entirely attributable to the uniform policy’. Because other changes were occurring in the schools at the same time that the mandatory uniform policy was implemented, it is unclear whether decreases in the number of suspensions and school crimes were due to the uniform policy, other changes, or simply chance.28

Finally, one of the most complete large-scale studies of the effectiveness of school

uniforms comes from Brunsma and Rockquemore. This study attempted to remedy some of the

sampling errors of previous studies by doing a nationwide representative study of 10th graders

who were required to wear school uniforms. The study tracked both the supposed social and

academic benefits of mandatory school uniforms. The end result of this study was disappointing

for school uniform proponents. As Brunsma states: “We found no significant differences in the

levels of absenteeism, behavioral problems (e.g., fights and suspensions), or substance use on

campus between the two groups. We also found no effects of uniform policies on academic

preparedness or student and peer attitudes toward school. We found significant, albeit weak,

negative effect of uniforms on academic achievement.”29

4. Conclusion

While we may agree that children (specifically young children) lack the ability to

exercise substantive expression, I have argued that the lack of the right does not justify the

imposition of uniforms. Since children will, ceteris paribus, eventually be capable of substantive

expression, and since this capability requires that children be granted a certain amount of free

expression in order to develop this capability, then perhaps we should impose something akin to

a dress code rather than a strict uniform requirement. This conclusion carries more force when

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1 Jeff Gorman, “APS School Uniform Proposal Draws Mixed Reviews” Leader Online October 25, 2007. (www.akron.com)

2 See Hugh LaFollette’s “Circumscribed Autonomy: Children, Care, and Custody” in Having and Raising Children ed. J. Bartowiack and U. Narayan. (State College, PA: Penn State Press, 1998); David Archard, “Children, Multiculturalism, and Education”, also Joe Coleman “Answering Susan: Liberalism, Civic Education, and the Status of Younger Persons” in The Moral and Political Status of Children ed. David Archard and Colin M. Macleod (Oxford: Oxford University Press, 2002).

3 393 U.S. 503, 514 (1969)

4 Ibid p.2

5 Ibid., p.4

6 268 F.3d 275 (5th Cir. 2001)

7 Ibid., para. 8

8 391 U.S. 367, 377 (1968)

9 Littlefield v. Forney Independent School District 268 F.3d 275 (5th Cir. 2001) para. 29

10 240 F. 3d 437 (5th Cir. 2001)

11 Ibid., para.10-12

12 The age range here is an approximation based on the work of individuals such as Piaget and Kohlberg.

we consider that the evidence suggests that uniforms do not provide the benefits they claim. It is

one thing to impose uniforms knowing that they 1) do not violate a child’s right to freedom of

expression, and 2) have been proven to benefit their academic performance, and quite another to

impose them because they make parents, teachers and administrators feel as if they are furthering

educational goals. By discounting the empirical evidence, and ignoring the developmental

opportunities that circumscribed normative autonomy would provide, we are in fact doing

children a disservice when we implement mandatory school uniforms.

20

13 L. S. Vygotsky, Mind in Society: The Development of Higher Psychological Processes (Cambridge: Harvard University Press, 1978), 85.

14 L. S. Vygotsky, Mind in Society (Cambridge: Harvard University Press, 1978), 87.

15 Josephine Russell, How Children Become Moral Selves: Building Character and Promoting Citizenship in Education (Eastbourne: Sussex University Press, 2007)

16 Ibid., Russell, p.117

17 The Moral and Political Status of Children ed. David Archard and Colin M. Macleod (Oxford: Oxford University Press, 2002) pp.53-69

18 Ibid., p.63.

19 ”Circumscribed Autonomy: Children, Care, and Custody” in Having and Raising Children e.d., J. Bartowiack and U. Narayan (State College: Penn State Press, 1998)

20 Ibid., 138

21 Ibid., p.139

22 Ibid.

23 Social conventions are of course relative, but children will require an understanding of he conventions in order to evaluate, follow, or at time violate those conventions for expressive purposes. Children need to know what the rules are before they can voluntarily break them.

24 (Bloomington: Phi Delta Kappa International, 2002)

25 Ibid., pp.2–4.

26 Ibid., p.5

27 Ibid., p.6

28 Ibid., p.6

29Ibid., p.7