How does a court determine if a students choice of dress is constitutionally protected?
Courts will employ a variety of tests to determine whether restrictions on student dress violate First Amendment free expression rights. Some courts apply a two-part test taken from two of the Supreme Court’s flag-burning cases, Texas v. Johnson and Spence v. Washington. Under this test, a court will ask two questions: (1) Did the student intend to convey a particularized message? And (2) Is that particularized message one that a reasonable observer would understand? A federal court in New Mexico applied this test to determine a student did not have a First Amendment right to wear sagging pants. The student argued that his wearing of the pants conveyed the particular message of African American heritage in the hip-hop fashion and lifestyle. The court rejected the student’s First Amendment claim, finding that a reasonable observer would not find a particularized message in his conduct. “Sagging is not necessarily associated with a single racial or cultural group, and sagging is seen by
