N.J.S.A § 18A:11-8 authorizes school boards to adopt school uniform policies. Pursuant to N.J.S.A § 18A:11-8:
A board of education may adopt a dress code policy to require that students wear a school uniform if the policy is requested by the principal, staff and parents of an individual school and if the board determines that the policy will enhance the school learning environment. Any policy adopted which requires the wearing of a uniform shall include a provision to assist economically disadvantaged students. The board shall hold a public hearing prior to the adoption of the policy and shall not implement the policy with less than three months’ notice to the parents or guardians of the students. The specific uniform selected shall be determined by the principal, staff, and parents of the individual school.
The board of education may provide a method whereby parents may choose not to comply with an adopted school uniform policy. If the board provides such a method, a student shall not be penalized academically or otherwise discriminated against nor denied admittance to school if the student’s parents choose not to comply with the school uniform policy.
A dress code policy adopted pursuant to this section shall not preclude students who participate in a nationally recognized youth organization which is approved by the board of education from wearing organization uniforms to school on days that the organization has scheduled a meeting.
In this case, the Board’s uniform policy will comply with State law so long as it satisfies the requirements set forth in N.J.S.A § 18A:11-8.
In addition, the Board’s uniform policy will not violate its students’ First Amendment right to free speech. Ordinarily, clothing does not constitute “speech” under the First Amendment. The First Amendment applies speech and not expression. Jacobs v. Clark County School Dist., 373 F.Supp.2d 1162, 1171 (D. Nev., 2005). However, “[C]onduct, when mixed with elements of expression, also implicates the First Amendment’s protection, though action/regulation that infringes on such expression is to be evaluated on a different basis.” Id. (citing Cox v. Louisiana, 379 U.S. 559, 563-64 (1965). Also, conduct comes within the scope of the First Amendment when it is “‘sufficiently imbued with elements of communication.’” Jacobs v. Clark County School Dist., supra, 373 F.Supp.2d at 1171-72 (quoting Spence v. Washington, 418 U.S. 405, 409 (1974). In Johnson, the United States Supreme Court held that clothes may constitute speech “so long as the choice of clothing demonstrates intent to convey a particularized message and the likelihood is great that the message will be understood by those who view the clothing.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-411 (1974). Also, in Blau, the Sixth Circuit held that clothing does not constitute “speech” under the First Amendment when said clothing embodies “nothing more than a generalized and vague desire to express . . . individuality.” Blau v. Fort Thomas Public School Dist., 401 F.3d 381, 389 (6th Cir., 2005) (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
In this case, the students’ clothing is not “speech” within the meaning of the First Amendment unless it shows a “particularized message” that can be “understood by those viewing” the clothing. Johnson, 491 U.S. at 406, 109; Spence, 418 U.S. at 411. As a result, the Board’s school uniform policy will only implicate the First Amendment if the students’ clothing is considered “speech.”
Still, even if the students’ clothing is regarded as “speech,” the Board’s uniform policy will not violate the First Amendment. Pursuant to U.S. v. O’Brien, 391 U.S. 367, 382 (1968), school dress codes should be upheld if: