The Schoolhouse Gate, the Workplace Door, and the Politics of Appearance

by Gregory Feit and Kaycee Portillo-Sorto

In the landmark 1969 case Tinker v. Des Moines Independent Community School District,[1] the U.S. Supreme Court’s majority ruling famously declared that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The case involved a plan by students protesting the Vietnam War to wear black armbands during school hours. The students were informed by the principal that if they went ahead with the plan, they would be disrupting the learning environment, and in turn, suspended. The students proceeded nonetheless, and a number of them were suspended.  The students, through their parents, then sued the school district and other officials for unconstitutionally violating their right to free speech.

In evaluating the extent to which the First Amendment should protect the students’ symbolic speech, the Tinker Court adopted the so-called “substantial disruption” test. Applying that standard, the Court determined that the state (in the form of school officials) could not justify the prohibition of the students’ “pure speech” and “expression of opinion,” even if the students’ sentiments were not “officially approved,” in the absence of facts that might have reasonably led the officials to expect resulting substantial disruption or material interference with school activities and discipline. In its 7-2 decision, the Court sided with the students, finding that, under the circumstances, including where there was no reasonable reason to have forecasted substantial disruption of or material interference with school activities and where no disturbances or disorders on school premises actually occurred, the Constitution did not permit the school officials to deny the students’ their form of expression.

More than half a century later, when American political views are often highly polarized on a number of issues, contentiousness around symbolic and other expressive speech seems only to have intensified. Citizens communicate, or may be seen as communicating, political affiliation, religious conviction, personal and cultural identity, and moral solidarity not merely through words, but also through crosses and keffiyehs, yarmulkes and hijabs, pride flags and MAGA hats, tattoos, and pins. And they do so in often bitterly divided contexts.

Institutions—schools, workplaces, universities, and governments—have responded unevenly. Some symbols pass almost unnoticed, absorbed into the aesthetic background of American public life. Others tend to trigger suspicion, controversy, or fear. A cross necklace worn in certain political circles may signify patriotism, tradition, or cultural belonging. A keffiyeh on a college campus may be alternatively interpreted, depending on the observer, as heritage, protest, provocation, or threat. A Star of David, once understood principally as a religious symbol, now frequently carries unavoidable political resonance amid renewed tensions surrounding antisemitism and the politics of the Middle East.

Still, history tells us that these conflicts, however intense and polarizing they may seem now, are hardly new. Americans, and American life, have long struggled with visible differences. Catholics in the nineteenth century faced suspicion for symbols thought to reflect foreign allegiance. Jewish Americans often encountered pressure to assimilate into a once predominantly culturally Protestant professional order. Sikh turbans and Muslim hijabs became targets of scrutiny after the September 11 attacks. Even the black armband in Tinker itself was viewed by school officials as dangerously disruptive precisely because it transformed clothing into dissent.

Tinker arose in a public school, a setting where constitutional constraints apply directly against the state. What, then, of ostensibly private spaces—corporate offices, retail stores, and workplaces that have increasingly functioned as the central arenas of American public life? If the schoolhouse gate cannot extinguish expressive identity, may the workplace door do so?

That question emerged prominently in EEOC v. Abercrombie & Fitch Stores, Inc.[2] There, the Equal Employment Opportunity Commission filed suit against Abercrombie & Fitch after the company refused to hire Samantha Elauf, a practicing Muslim, because the headscarf she wore, pursuant to her understanding of her religion’s requirements, (supposedly) conflicted with Abercrombie’s employee “Look Policy.” That policy, framed by the company as a mechanism for preserving brand image and aesthetic uniformity, effectively rendered visible religious practice incompatible with the corporate identity that Abercrombie sought to project.

The dispute revealed a tension increasingly central to modern American life: whether institutions may invoke professionalism, branding, or neutrality to suppress forms of visible identity that are or may be deemed aesthetically or politically inconvenient. Much like the black armbands in Tinker, Elauf’s headscarf was transformed into a matter of legal and cultural controversy. In both cases, institutions confronted individuals whose appearance communicated commitments that could not easily be separated from the self and related First Amendment freedoms.

The U.S. Supreme Court ultimately rejected Abercrombie’s position, holding that Title VII of the Civil Rights Act of 1964 prohibits employers from making hiring decisions motivated by an applicant’s religious practice, even absent “actual knowledge” of the applicant’s need for an accommodation. Put differently, the desire for visual uniformity and a specific corporate image could not justify hiring decisions and exclusion from participation in employment when “taken with the motive of avoiding the need for accommodating a religious practice.”

Notably, Justice Thomas’s opinion in Abercrombie & Fitch, concurring in part with and dissenting in part from Justice Scalia’s opinion of the Court, said that the case turned on the distinction between disparate-treatment and disparate-impact claims under Title VII. The former concern intentional discrimination, whereas the latter address a facially “neutral”[3] policy that, in practice, disproportionately impacts certain protected classes more than others. Thomas contended that the damages award obtained by the EEOC against Abercrombie could be sustained under the statute only if the EEOC demonstrated that Abercrombie had engaged in intentional discrimination, as opposed to “an employment practice that is unlawful because of its disparate impact”—i.e., whether the company’s conduct constituted “intentional discrimination” within the meaning of 42 U.S.C. § 1981a(a)(1).

Although Justice Thomas’s reasoning did not command a majority, the distinction he focused on has certainly gained newfound attention and importance under President Trump’s second administration. The EEOC is now increasingly prioritizing claims involving alleged discrimination only in the form of disparate treatment, while often rejecting, ignoring, and expressing sharp skepticism toward any potentially expansive uses of disparate-impact theory.  Indeed, the Justice Department’s June 2026 Office of Legal Counsel opinion to the EEOC asserted that the Commission’s guidelines regarding disparate-impact liability under Title VII are unconstitutional. This was in line with Executive Order No. 14281, which rejected disparate-impact liability insofar as “it creates a near insurmountable presumption [that] unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.”

In all events, Abercrombie clearly shows that, although the First Amendment doesn’t directly apply to private employers the way it does to government actors (e.g., public schools), those private actors must still be cognizant of means of expression that might merge with protected categories (e.g., religion, race, sex, national origin) under Title VII and local and state anti-discrimination laws. Thus, while private employers retain significant authority over workplace appearance, that authority is structured—and limited—by statutory commitments to equal participation in public economic life.

The deeper question, then, is not simply whether Americans possess the right to wear symbols of belief or identity. In many contexts, they plainly do.

The more difficult question is whether American institutions are genuinely prepared to accommodate visible pluralism when the symbols in question challenge prevailing political or cultural comfort. Put differently: who, in modern America, gets to appear publicly as they are without inviting institutional suspicion?

The question goes far beyond the schoolhouse gate.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[2] EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015).

[3] “Neutral” here refers to a policy that does not explicitly distinguish among individuals on the basis of a protected characteristic, such as religion, race, or sex.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Gregory Feit who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Feit is admitted to practice in New York.