Freedom of expression at school
Last Friday, i.e. on 3 February, the Ombudsman announced that he had sent requests to the Superintendents and Superintendents of Education for their position on the regulation of student dress and appearance in school statutes and the use of penalties for non-compliance.
We receive reports that indicate non-compliance with generally applicable law, i.e. the Act – Education Law and the Constitution by schools, as well as reports indicating the use of penalties, e.g. negative behavioural points for non-compliance with the provisions on student appearance and dress.
Pursuant to Article 99(3) u.p.o, schools may regulate the dress code – the legislature chose to limit the remit of schools to dress, excluding appearance. This was debated in the legislative process when it was decided to do so. This explicitly means that all elements that belong to appearance – hairstyle, make-up, tattoos, nails – are outside the scope of school regulation, and pupils are given freedom in this regard.
We should also remember that the provisions of statutes should not be vague expressions – e.g. ‘neat’, ‘appropriate’ – are vague expressions that can cause difficulty in qualification and result in arbitrary interpretations by teaching persons.
Provisions regulating pupil dress should be justified – e.g. for the safety and health of pupils – in which case a prohibition on wearing clothes with metal, sharp ends is perfectly legitimate. The restrictions should, however, be the least onerous possible, i.e. proportionate to the need. A hypothetical ban on brightly coloured clothing would not serve any purpose and we could call for its removal from the school statutes.
Schools are also not allowed to restrict pupils from showing their affiliation to certain social groups, subcultures etc. This would be a restriction of constitutional rights and freedoms as well as other acts, including the Convention on the Rights of the Child.
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