A proposal by an anonymous Antigo School Board member to modify the district’s dress and grooming code to add an entire section drafted by this member to ban many types of clothing was rejected by a board committee Monday.
One added section asserted that shirts “with profanity, Black Lives Mater shirts, Confederate flag of symbols on clothing” ... “may not qualify under protection of free speech or freedom of expression” among an entire list of items.
The proposed policy, along with others that have been brought to the Policy Committee was run past the district’s attorney, Dean R. Dietrich, who provided two detailed responses on two that were on the agenda for possible action Tuesday.
In the letter to Board pPesident Danny Pyeatt regarding the proposed dress code policy, Dietrich strongly advised not moving forward.
“As we have previously discussed, we advise the District to refrain from becoming a ‘test case’ for civil liberties law suits. Unfortunately, we have concluded that the Policy, as currently proposed, would likely result in such a ‘test case’ under various scenarios,” the memo said.
He then cited case law to show were various portions of the policy had already been deemed unconstitutional in other instances for violating the First and 14th amendments to the Constitution. In citing Tinker v. Des Moines Indep. Cmty. Sch. Dist. decision by the U.S. Supreme Court in 1969, he compared the changes proposed to the decision of the Des Moines School District seeking to ban black armbands students wore as a protest to the Vietnam War.
“The Tinker opinion concluded speech and expression will not be curtailed unless a District can show that the speech or action ‘would materially and substantially disrupt the work and discipline of the school,’” Dietrich wrote.
He said that through follow-up cases, the justices defined three categories of student speech that districts can make policy to curtail, those being profanity, speech that encourages illegal drug use and writings in school newspapers that may give the appearance of endorsement by the district.
He then presented a number of court decisions to show how the courts ruled in a number of instances for or against students.
Dietrich also warned that the detailed descriptions of what types of clothing would be banned under the new policy could lead to sexual discrimination court challenges.
“Although we don’t believe the proposed policy specifically targets males or females, we do believe there is an argument to be made that the policy will be enforced against female students at a significantly higher rate than males,” Dietrich wrote.
He then wrote about a district in Florida that ran afoul of the ACLU that “concerned many of the same items the District has proposed, including the height at which pants must be worn, a prohibition on exposing underwear, midriff, and length regulated skirts.” The district changed the policy just before a court was to issue a ruling.
“We want to avoid such a possible fallout for the District,” Dietrich wrote.
Dietrich also pointed out that the dress code policy being changed was written by Neola, and vetted by their attorneys.
“Neola is a regional company that assists school districts in drafting legally compliant policies. The Original Code was written using the standards established under the First Amendment and Tinker’s Substantial Disruption standard,” he wrote, citing the central Supreme Court decision regarding student free speech rights.
“The amendments proposed have removed the Policy from those accepted standards, thereby requiring the District to show with concrete evidence that each specific clause is needed to prevent substantial disruptions occurring within the District. Mere speculation about the possibility of disruption will not suffice. Additionally, disapproving comments from students regarding a student’s attire will not be enough to warrant a substantial disruption. Thus, if the District is to proceed with the Policy as proposed, it must first compile examples of when student’s dress has caused disruptions such as escalated arguments or physical fights, a decrease in attention, a decrease in test scores, harassment of other students infringing on their rights, or an increase in truancy. If it cannot do this, we recommend not going forward with the proposed changes.”
He then returned to the specific type of shirt banned by name, saying that would be “facially unconstitutional.”
“The Black Lives Matter shirt is analogous to the issue presented in Zamecnik (Be Happy Not Gay shirt), where the court of appeals allowed the shirt as free speech, while noting the derogatory nature of the shirt. A shirt stating Black Lives Matter is not derogatory in any real comparison to the shirt contemplated in Zamecnik. Therefore, unless the District can demonstrate a historical issue it has faced involving racial tensions among its students, such as in Dariano, regulation of Black Lives Matter apparel is prohibited under the law,” Dietrich opined.
The ban on head coverings would be struck down as soon as the first Muslim student is told to remove theirs.
Then he went on for over a page with specific concerns that enforcement of parts of the policy would cause for staff and administration. He also pointed out just one of the unintentional consequences the proposed policy would create because it specifically states there are no allowed deviations to the policy.
“Additionally, if proceeding without an ability to deviate from the proposed policy, the District will need to obtain new uniforms for its athletic teams, including the volleyball team, the cross-country team, the track team, and the swim team. All of the uniforms worn by those teams appear to be currently in violation of the Policy as they violate the length of shorts, they fail to cover the rear end, or they fail to cover the whole chest and back,” Dietrich wrote.
Anita Mattek, Antigo High School associate principal, and Matt Meronk, dean of students, were at the meeting and explained how the current dress code is being enforced, noting there have been some changes since the start of the school year. They, too, recommended not passing the proposed policy changes to the full board.
Another proposed policy change would have narrowed what type of flags could be displayed in classrooms. This policy was also rejected.
One proposed policy change that wasn’t on the agenda but touched on in a different memo from Dietrich. That policy would have required all people to rise and recite the Pledge of Allegiance or for the national anthem. Dietrich said that courts have repeatedly ruled that such policies were unconstitutional.
Due to Dietrich’s overwhelming concerns, it was agreed to not move any of the proposals on to the full school board.
At one point in the meeting, Pyeatt was asked how much the legal review Dietrich has made of the various policy changes, the majority of which never made it out of committee, he said $6,000.
Pyeatt has repeatedly refused to name the board member who has been submitting the proposed policy revisions, saying that they must do that themselves. At the end of one board meeting when all nine members were present, they asked if that person would care to identify themselves, but none did.