Mandatory School Uniforms and Freedom of Expression

Mandatory School Uniforms and Freedom of Expression


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 on their parental rights. On the other hand, the school board and several educators argued that school uniforms would foster discipline, equality and increase overall academic performance.

The debate between the Akron school board and parents is one that has taken place in numerous school districts since then president Bill Clinton put school uniforms front and center in his (year?) 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 they curtail the right children may have 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.[1]In this paper I examine the issue of freedom of expression and school uniforms and argue that while mandatory school uniforms may not violate a child’s freedom of expression, there are good reasons to think they are inappropriate on other grounds.

1. Legal Precedents

The apparent lack of interest in the issue of school uniforms may in part be due to the number of legal precedents that have ruled that children are not entitled to the same protections as adults. 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+) the supreme court has not given the 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.

1.1 Tinker v. Des Moines Community Independent School District

The first and only U.S. Supreme Court case to deal with the issue of dress and expression occurred in the 1969 case of two hight 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 implement the protest, the principles of the Des Moines schools heard about the protest, and adopted a dress code policy that forbid any student from wearing an armband to class. If a students 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.

In making their 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 these issues. Rather, the court noted that the case was one about expression, and was a case of ‘pure speech’ and 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 unmistakable holding of this Court for almost 50 years.”[2] 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 principles in the district) would have been justified in banning the armbands had they been able to show that this conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school’[3]

While the 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 school may be justified in limiting expression, they did not determine whether dress codes or uniforms posed 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

Although not a Supreme Court case, the the Littlefield case provides one of the clearest and most direct argument 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 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”[4] Faced with the uniform policy, parents took the their case to court claiming that the school district had violated their children’s first and First and Fourteenth Amendments rights to freedom of expression and equal protection.
One of the salient features of the Littlefield case is its application of the O’Brian[5] 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:

Applying O’Brien to 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.[6]

According to the Fifth Circuit court, the school district had met the O’Brien 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, and these purposes are 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

In a case much like Littlefield, the Canady case the issue facing the court 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:
(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 [7]
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 leant 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 boards right to require school uniforms. As noted in Tinker, schools cannot abridge all speech, but it can restrict the form of its expression through choice of clothing. In Littlefield and Canady, the court held that although clothing could be construed as speech, the context in which speed speech take place can be considered. 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. As I will argue, these rulings ignore a number of morally salient features of both children and uniform policies.

2.1 Defining the Children in Question

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 the their speech could be limited. While 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 is less clear. For the purposes of this paper, I will restrict my argument to younger children, that is, children in the primary grades. 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 near the upper age range and into secondary school age children (or perhaps it would be better to describe them as young adults) 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. 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 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 is the type of expression in which a subject performs an intentional act which the subject desires 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 the 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 were the expression is both intentional and symbolic.

Setting aside for a moment the issue of whether children have the capacity for substantive expression, there is a genuine concern that any expression through clothing is suspect when we are dealing with young children. 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. It is more likely to be the case that the 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 choose what clothes they want to wear, as was mentioned above, it is doubtful that children have the capacity to choose clothing that is anything but 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 in time 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.


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.[8] 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, schools and the court seem to be focussing on this metric of development. Since children have not developed 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 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’.[9]

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 may only require the guidance of adults for their full realization. So the fact that children will, ceteris paribus, eventually develop the capacities for substantive expression does not entail that we 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.

Recently, studies in Ireland have born out Vygotsky’s views on the zone of proximal development. In How Children Become Moral Selves,[10] 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 draws conclusions about children’s ability to reason from various moral frameworks (e.g., justice, care, fairness, etc.) as well as whether their moral development is consistent with many of the leading psychological theories on children’s moral development, particularly those of Piaget, Kohlberg, Gilligan and Vygotsky.

Throughout her study, Russell noted 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 as some sort of conclusion.[11]

The development of substantive expression does not arise spontaneously, rather it develops over time. Thus, as children’s capacities increase, so should their rights. In fact, if In fact, 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 (civic minimalism?) then we may have a role to play in a child’s 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—leads one to 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

Up to this point I have argued that school uniforms do not violate a child’s right to freedom of expression since children lack the capacities necessary for substantive expression. I have also noted that while children lack these capacities, that 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 for 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 children’s right to freedom of expression will be protected at some distant time in the future. On the other hand, if right protect interests, then we may still hold that children have no interest right at stake, but we may also hold that the child’s future interest in expression places moral demands on those responsible for them. In the sections that follow I discuss an account of children’s rights that takes into account both choice and interest. This view is compatible with the Vygotskian view of development.

3.1 A Gradualist Account of Children’s Rights

Gradualist holds that the rights that 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 Interests: Which do their Rights Protect?”[12]. 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, then this account appears to preserve rights for children. But the protection of interests can only go so far, since eventually children will become capable at some point 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 deserve the protection of rights, to being a creature who can choose for herself.[13]

This approach to rights is sensitive to the developmental nature of children, and as such reflects the reality of agent development.

One implication of this view of rights is that one of the obligations facing parent and others responsible for a child’s growth and development is that the interests that are protected include 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 that have their choices protected requires the kind of Vygotskian guidance mentioned in section two. Children do not just magically attain the capacity for meaningful choice, they develop it over time with the assistance of those who already have it. What I will suggest here is that the capacity of 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”[14]. 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.[15]

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 of nothing. We assumed that an individual either is or is not descriptively autononomous, 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, upon reaching the magical age of seventeen, eighteen, or twenty-one (depending on where they live), they suddenly become infused with it.[16]

LaFollette’s response to this all or nothing approach to autonomy is to extend to children what he calls “circumscribed normative autonomy”[17] Circumscribed normative autonomy is a means of recognizing that children, though not descriptively autonomous, can exhibit some autonomous traits. Furthermore, in order for a child 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 to can expression be developed by extending to children circumscribed normative expression. By giving students some choice in the clothing that they wear, along with a an understanding of what counts as appropriate or inappropriate in a particular context, we further their development. One could argue that giving a child an understanding of social norms such as appropriate clothing indirectly provides them with the means of expressing their dissatisfaction with social norms when they intentionally violate those norms or rules.

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 greater utility achieved through uniforms? It would seem that social utility considerations would take precedent 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 Literature[18] by David L. Brunsma examines three types of studies dealing with school uniforms. 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 uniforms 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, one would expect to find a substantial amount of 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) bring to light is the striking lack of a correlation between the implementation of a school uniform policy and the positive affects claimed by proponents of such policies. While there are many studies that reflected an increase in the perception that uniforms had a positive impact factors such as attendance, discipline, self-esteem and academic performance, these perceptions failed to map onto the measured outcomes.[19] 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 there existence, then they must be able to point to evidence supporting it effectiveness. Morally, we may not be infringing upon the rights of children, but as was previously argued, we may be missing an opportunity to aid them in the development of expression.

The small and large scale studies of uniforms actual effectiveness (versus their perceived effectiveness) has proven at best indeterminate. Most of the small-scale studies that found an improvement in academic achievement after the implementation of a uniform policy also found that other policies 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 student’s 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.[20]

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 outcomes of the study appeared to support the effectiveness of uniforms:

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%.[21]

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 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.[22]

Finally, one of the most complete large-scale study 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 Brusnma 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.[23]

4. Conclusion

I began this paper with a discussion of the school uniform movement, and the underlying assumption that uniforms were good for students. Assuming uniforms are beneficial to student, I then raised the question of the morality of uniforms. While they may be beneficial, that in and of itself would not be sufficient to justify imposing them upon students. Although the courts have supported the imposition of mandatory school uniforms on both pragmatic grounds—the benefit to children—and on the rights-based argument that children lack freedom of expression.

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 without a strict uniform requirement. This conclusion carries more force when 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, they are doing children a disservice.

  1. 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).  ↩

  2. Ibid p.2.  ↩

  3. Ibid., p.4  ↩

  4. Ibid., para. 8  ↩

  5. 391 U.S. 367, 377 (1968)  ↩

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

  7. Ibid., para.10–12  ↩

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

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

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

  11. Ibid., Russell, p.117  ↩

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

  13. Ibid., p.63.  ↩

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

  15. Ibid., 138  ↩

  16. Ibid., p.139  ↩

  17. Ibid.  ↩

  18. (Bloomington: Phi Delta Kappa International, 2002)  ↩

  19. (Ibid., pp.2–4.  ↩

  20. Ibid., p.5  ↩

  21. Ibid., p.6  ↩

  22. Ibid., p.6  ↩

  23. Ibid., p.7  ↩

Children, Rights, and Sexuality

[The following paper is a heavily abridged version of a chapter of a book I am currently working on and is not intended for citation or redistribution.]

1. Introduction

How should we address issues of sexuality with children? What information are children entitled to receive? These questions become particularly relevant when the issue of comprehensive sex education is debated. In the United States, the dominant approach to sex education has been to teach abstinence. Most federal funding for sex education programs has been tied to requirement that more controversial topics such as contraception and abortion not be included in sex education programs. In this paper I argue that children have a right—and society has an obligation—to provide children with comprehensive age-appropriate information about sexuality and sexual expression.

2. The Sexuality of Children

When discussing the sexuality of children there is a tendency to view them as either sexual innocents, or as pseudo-adults. Samantha Brennan and Jennifer Epps have referred to this dichotomy as the romantic child versus the knowing child.

The romantic child is characterized by his or her sexual innocence. The child’s lack of knowledge, experience, and interest in things sexual categorizes them as an object of concern that requires protection from the corrupting experiences of the adult world. When the predominate view of the child is one of innocence, the natural response is to shield the child from both less than ideal examples of sexuality, as well as from information about normal and healthy aspects sexuality. Exposing children to the mere idea of human beings as sexual is seen as instilling inappropriate thoughts and ideas in the child.

In contrast to the romantic child is the image of the knowing child. The knowing child can be described as a tragic figure, the innocent forced into adulthood by premature exposure to sexuality. While we may strive to prevent the creation of the knowing child, his or her knowledge changes the way we treat such children. The knowing child becomes a little adult—and unlike the romantic child—is treated as sexually autonomous. Innocence lost cannot be recaptured, and so the knowing child is viewed in one instance as a victim and in the other as an adult.

This distinction between the romantic and knowing child is often implicitly appealed to when discussing issues of children and consent, and represents an inaccurate representation of childhood sexuality.The danger of accepting this view of the knowing child is that it allows the abrogation of responsibility for the protection of these children. On the continuum between the protection of interests to the protection of choices, the knowing child falls closer to the latter. Since the child has unfortunately and possibly unwillingly lost his or her child status, then they now are seen by many as outside the purview of adult protection.

The romantic image of the child is by all psychological accounts a fiction. Far from being unaware, children are acutely aware of their sexuality, although they may not have the ability to articulate it. The fact that children are sexual necessitates parental involvement in guiding children from a fairly young age. Although it is clearly the case that children grow in their sexual awareness over time, this does preclude them from being sexually aware at a very young age.

The reality of children’s sexuality as neither that of the romantic innocent nor of the the knowing adult requires a correspondingly realistic and nuanced approach to the subject. As sexual beings children children require both protection as well as information. As moral beings it is also necessary to take seriously the rights implications of how those responsible for children should deal with the issue of sexual freedom. This issue is complicated given that children’s competence is normally not an all or nothing affair. As was discussed in the case of freedom of expression, children may gradually exhibit competencies over time and only with the assistance of adult decision makers.

Categorizing children as either romantic innocents or knowing children also misses an important aspect of children’s sexuality, namely, its place in the development of conception of the good life. While we often worry about children becoming sexually active at an inappropriate age, or worry about children having children, we often forget that sex and sexuality are part of an individual’s overall well-being. Development of sexual values is important aspect of this well-being.

Becoming a fully rounded person is often complicated when we add moral and religious views into the mix. The values a child may come to endorse as they mature may or may not coincide with those of his or her parents. It can be especially difficult for gay and lesbian adolescents who recognize very early on that their parents, family or community does not approve of their orientation. These situations prove extremely difficult to manage for a theory of children’s rights as the objection parents may have to homosexuality may be part of deeply held religious beliefs.

The recognition of children as sexual beings is important because of the obligation we have to protect children from harm. General well-being and rights claims aside, information is essential to protecting children from the very real harms that are possible from sexual ignorance. Recognizing children as developing sexual beings is not only essential to them leading an autonomous and a well-rounded life, but is also about preparing and providing children with the information to make responsible and safe decisions. It is with this understanding that I wish to focus on one controversial aspect of childhood sexuality—the debate over comprehensive sex education.

3. Comprehensive Sexual Education

The reality of children’s sexuality suggests that we have a correspondingly realistic assessment of what type of information children should receive. Assuming young children are not curious about matters of sexuality, or that children that have had some sort of sexual experience are competent to make decisions for themselves, are both equally specious views of their sexuality. Unfortunately, in the United States children are often not provided the information necessary to protect themselves from the harmful aspects of sexual activity, nor are they being prepared to make responsible choices in matters relating to their sexual life.

There is no one abstinence only curriculum. These programs vary widely depending on who teaches them, and where they are taught. While abstinence only programs can vary by state, county, school district, and individual instructor, in the United States federal funding is dependent on a program meeting eight essential criteria.
Of the eight requirements of an abstinence only programs, half require emphasizing the negative aspects of sex such as disease, physical harm, psychological harm, and the harm to one’s family. The other aspects place an emphasis on ways to avoid sexual advances, or on the safe course of action of sex within a monogamous, heterosexual marriage.

The focus of abstinence only programs is to instill the idea that sex is something to be avoided at all costs. The stated goal of teaching children and young adults that the standard of sexual activity is in the context of marriage is at best an ideal and at worst an outright distortion of the facts. >The majority of Americans—74% of them—have had sex before age 20.4 Further, contrary to public perception that premarital sex is much more common now than in the past, the study shows that even among women who were born in the 1940s, nearly nine in 10 had sex before marriage[1].

These numbers demonstrate that abstinence is not—and has not been—the norm for some time. Given the reality that most young people will not wait until marriage to engage in sexual activity, there is the danger that simply teaching what can go wrong will not help prepare young people to avoid that harm. Furthermore, even if they do delay sexual intercourse, it is highly probable that they will engage in other forms of sexual activity that is itself risky.

Abstinence only programs tend to focus on intercourse while excluding discussion of other forms of sexual activity. Even if there is reason to emphasize abstinence and the dangers of sex, abstinence only programs are doing a poor job of providing information about the dangers of other types of sexual activity—activities that can pose serious health risks. One fairly well-known example of this failure has occurred in the virginity pledge movement in the United States. Organizations such as True Love Waits encourage young people to promise to abstain from sex until marriage.

As with a large majority of abstinence only programs, the True Love Waits program does not discuss contraception or sexual activities outside of intercourse. The result of this omission was that young people that participated (took the pledge) had the same rates sexually transmitted infections as those who did not participate. According to Brückner and Bearman, there was no statistical difference between the rates of infection for pledgers and non-pledgers. Consequently, while pledgers delayed sexual intercourse for a longer period of time than non-pledges, they engaged in other risky sexual behavior resulting in the transmission of disease such as Gonorrhea, Human Papilloma Virus, Chlamydia and Trichomoniasis.[2]

The abstinence-only approach fails on several accounts to fulfill our obligations to children. First, such programs imply, if not directly teach, that sex is something to be generally feared. Secondly, it is based on the mistaken view of children as romantic innocents. Finally, the incomplete information about sex contained in abstinence only programs places young people at risk for sexually transmitted infections. These shortcomings point to a need for the type of information provided by comprehensive approaches to sex education.

Just like abstinence only programs, comprehensive programs admit of a number of variations. Generally, comprehensive sex education programs—also known as “abstinence plus” programs—encourage abstinence but also provide information on HIV and STD prevention and contraception. Comprehensive programs are designed to provide young people with age-appropriate information about a full-range of sexual practices, beliefs and values. These programs are generally sensitive to the cultural beliefs and values of the community, but they do not withhold information that is necessary for responsible decision-making.

Comprehensive programs are more forthright about the realities of teenage sexuality. While they do promote abstinence, they also acknowledge that many teenagers will engage in sexual activity. These programs teach about contraception and condom use, and discuss more sensitive topics such as abortion that abstinence-only programs do not.

Given the failure of abstinence only programs to protect young people and provide the information necessary to make responsible choice, one might expect to find greater support for comprehensive programs. Yet, many see such approaches as implicitly encouraging teens to engage in sex. The fear is that giving young people information about sex and contraception will result in greater sexual activity and all the negative consequences that may accompany it. While the idea that information may lead to engagement has some intuitive appeal, it turns out that the reality is quite different. In fact, the value of comprehensive sex education as a means of both delaying sexual activity, as well as resulting in more responsible behavior is well documented.

One of the most cited examples is that of Sweden’s comprehensive sex education program. Beginning in kindergarten, children in Sweden receive age appropriate, comprehensive information about sex and sexuality. Starting with lessons on basic anatomy and the joining of sperm and egg, children are taught to view sexuality as the natural part of the human experience. As children move into their teenage years they are given more information about contraception and the dangers of unprotected sex. They are also taught how to take control of their sex lives— instruction which stresses the virtues of being in a stable committed loving relationship, gender equality and waiting until one is ready to have sex.[3]

Given the substantial amount of exposure to sexual information that Swedish children receive, one might expect to find an increased amount of sexual activity among its young people. Yet, the result of providing children and young people with this information results in a far more responsible behavior. As Thomas Grose has reported:

The rates of teen pregnancy and sexually transmitted disease in Sweden are among the world’s lowest. Sweden’s teenage birthrate is 7 per 1,000 births, compared with 49 in the United States. Among 15-to–19-year-olds, reported cases of gonorrhea in the United States are nearly 600 times as great on a per capita basis[4]

Similar outcomes have been reported in the Canada and the Netherlands which also employ comprehensive sex education along with access to contraception. In the 2006 the teen pregnancy rate in the Netherlands for women age 15–19 was 18.8 per 1000. By contrast, in the same year the teen pregnancy rate for the same age group in the United States was 71.5 per 1000. In each instance where the national focus is on comprehensive sex education, there are a correspondingly low levels of teenage pregnancy, sexually transmitted infections, and abortions.[5]

The effectiveness of comprehensive programs demonstrates that from a purely practical standpoint they are a far better approach to sex education. They also have the added benefit of not only protecting young people from the dangers of sexual activity, but also provide the information necessary for making responsible choices. These aspects of comprehensive approaches make them a better fit with the moral obligations we have to children with respect to their sexual development.

4. Parents, Children, and Sexuality

Part of preparing a child for realizing a conception of the good life entails that they are able to express a preference for one life over another. An important aspect of that good life is the expression—or the freedom to express—one’s sexual identity. It also entails that they have the ability to participate in the construction of the type of community in which they live. In realizing their own sexual identity as they mature, children will eventually influence the nature or structure of the moral community. How sexuality is viewed, expressed, protected etc., will ultimately be determined by adult decision-makers. A healthy view of one’s sexuality will be needed to participate in that social conversation.

Although children are sexual beings, their sexuality develops over time. It is a parent’s responsibility to foster the healthy 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 making informed choices about his or her sexual life. Children do not just magically attain the capacity for meaningful choice, they develop it over time with the assistance of those who already have it. The capacity for choice, be it in clothing or sexual expression, develops in children by the exercise of a limited form of expression, that is, expression under the guidance of a caregiver.

Providing children with age-appropriate information, helping them foster healthy relationships with others, and teaching them to respect themselves and others, all helps to prepare them to be independent sexual beings. But, this preparation is not all or nothing. We do not provide children with a few sex education classes and then view them as capable of making responsible sexual decisions. Children still need guidance and even restrictions on activities. There are social, physical, and emotional consequences to sexual activity. The freedom or autonomy that we grant children in these matters is analogous to Hugh LaFollette’s “circumscribed normative autonomy”.

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.

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.

LaFollette’s response to this all or nothing approach to autonomy is to extend to children what he calls “circumscribed normative autonomy” 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 sexuality. Just as autonomy is something that develops as children are provided opportunities to make decisions under the guidance of adults, so too can decisions that relate to sexuality be developed by extending to children circumscribed normative autonomy in this area. Giving children some freedom of choice in matters that deal with sex and sexuality, along with an understanding of what counts as appropriate or inappropriate in a particular context and at a particular age, we further their development.

The idea of circumscribed normative autonomy supports the comprehensive approach to sex education. Providing children with guidance and information allows them to develop and progressively take on responsibility for their sexual lives. It also simultaneously protects children from the very real risks inherent in sexual activity. While some parents may be uncomfortable with the comprehensive approach, much like in case of religion, parents are entitled to influence a child’s sexual development or under what conditions their sexuality is expressed. But, respecting a child’s interest in becoming a fully autonomous sexual adult equipped to choose the life they will lead requires that parents do not unduly restrict a child’s access to information.

  1. Thomas K. Grose, “Straight Facts About the Birds and Bees” U.S. News and World Report (online) (Posted 3/18/07)  ↩

  2. Hannah Brückner and Peter Pearman. “After the promise: the STD consequences of adolescent virginity pledges” in Journal of Adolescnet Health 36 (2005): 271.  ↩

  3. Thomas K. Grose, “Straight Facts About the Birds and Bees” U.S. News and World Report (online) (Posted 3/18/07)  ↩

  4. Ibid  ↩

  5. Advocates for Youth. “Adolescent Sexual Health in Europe and the United States: The Case of a Rights. Respect. Responsibility. Approach. (Accessed March 2012)  ↩

Don’t smoke ’em if you got kids

Twice a week my wife and I volunteer to do reading with my son’s kindergarten class. One by one the kids come into an adjoining room, choose a book and sit down and read with one of us. Recently, while reading with one of the kids, I began to notice the strong smell of cigarette smoke. The smell of smoke was not only evident on the child’s clothing, but could also be found on the folder containing the reading log that the students take home with them each night. Since we generally begin reading with the kids just after the school day begins, it is obvious that either this 5 year old is being exposed to secondhand smoke at home, or on the car ride to school.

Aside from my disgust with parents that would knowingly expose their children to smoke, and my frustration with the lack of recourse.1 But, I thought that maybe this was a topic that needed a philosophic debate. In the past I have written on school uniforms and religion and education and initially thought that there was something here that deserved the same sort of treatment—except that it doesn’t. To have a debate, there needs to be a genuine conflict of values. There can be legitimate disagreement about the extent of parental rights when it comes the religion and their children. We can debate whether children have a right to express themselves through clothing. What isn’t up for debate is whether parents have the right to expose their children to secondhand smoke—they don’t. In this case, the evidence is clear:

  1. At least 69 chemicals in secondhand smoke are known to cause cancer, including arsenic, benzene, and formaldehyde.

  2. Secondhand smoke causes lung cancer in nonsmokers.

  3. Secondhand smoke has also been associated with heart disease in adults and sudden infant death syndrome, ear infections, and asthma attacks in children.

  4. There is no safe level of exposure to secondhand smoke.2

I don’t believe anyone would reasonably hold that a parent has a right to feed his or her child small a amounts of arsenic day-after-day. So, no paper on this topic….but I do see a letter to a state senator or state representative in my future.

  1. There are currently no laws in Ohio that prohibits smoking around children (unless one runs a daycare center) nor is there any law that equates smoking around children with child abuse or neglect.