School Regulation of Exotic Body Piercing

• Publication year: 2021

79 Nebraska L. Rev. 976. School Regulation of Exotic Body Piercing

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Karen A. Haase*

School Regulation of Exotic Body Piercing

"`The Constitution gives me freedom, thank you. And I'll take my freedom to pierce my nostril, ears and eyebrow. That's me; that's my freedom.'"

Student Proclamation1

I. INTRODUCTION

It seems that adolescents love nothing more than to fight with adults about their appearance. In the 1920s and `30s, teenage girls refused to wear petticoats or corsets to school, instead choosing silk stockings and the provocative "flapper" dress styles.2 In the 1960s and `70s, young men refused to cut their hair, provoking conflicts with both parents and school officials.3 Now, at the beginning of the twenty-first century, adolescents have found a new physical expression of individuality and rebellion: body piercing.

This "body modification" has gone far beyond the traditional pierced ear lobe. It now includes the piercing of ear cartilage, the tongue, lips, eyebrows, nipples, navel, and genitals. As usual, schools are on the front lines of this cultural fad. Many schools have adopted dress codes and school policies which prohibit students from wearing exotic body piercing to school.4 School attorneys are beginning to re

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ceive calls from school administrators seeking either assurance that these policies are enforceable or advice on how to craft such a policy from scratch. School administrators want to act because body modification is causing significant distraction within the educational environment, creating disruption, and interfering with the learning process.

As public schools begin to write and enforce rules against body piercing, the inevitable threat of legal challenges looms ahead. This article examines whether school policies prohibiting body piercing are enforceable in the face of constitutional challenge. It begins with a report on the popularity of and risks associated with body piercing. Then it examines the First and Fourteenth Amendment implications of body piercing prohibitions. Finally, it concludes with some observations on how schools can craft a body piercing policy without running afoul of students' rights.

II. BODY PIERCING: THE LATEST CRAZE (AND YOU THOUGHT PET ROCKS WERE WEIRD)

Body piercing is one of the nation's hottest fashion trends. Evidence of the popularity of body piercing is necessarily anecdotal because no statistics are kept by the largely unregulated industry. Media coverage of the craze universally reports that the practice is growing exponentially, particularly among adolescents.5 Adolescents and young adults are lining up at tattoo parlors, tee-shirt factories, music festivals, head shops, and in-home "salons" to have metal rings or other items attached through holes made in the skin.6

Body piercing is a relatively simple and inexpensive process. The cost of a piercing can range from $10 for an earlobe, to $65 for a piercing on the genital region, to $100 for piercing a navel. The jewelry can

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range in price from $15, depending on the type of metal used to make the jewelry.7

The practice has grown to such proportions that all four branches of the United States Military have been forced to address the issue specifically in their service policies.8 The 2000 Midwest Dental Conference featured a session training dentists on how to deal with patients with oral piercings.9 The phenomenon of piercing body parts is now so common that advertisers are using models with exotic piercings to sell their products.10

However, this is not another harmless, if annoying, fad like Cindi Lauper's jangling metal bracelets or Marky Mark's underwear-revealing waistline. The medical community is expressing growing alarm about the serious health risks of body piercing. Body modification can cause health problems which range from tender skin to lifethreatening illness. Body modification involves breaching one of the body's main protective barriers - the skin. Medical journals and mainstream media report deaths caused by infections contracted from body piercings.11 Emergency room doctors report that piercings get in the way of emergency medical treatment.12 Medical case studies, in

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cluding studies cited by the American Academy of Pediatrics, report infections that can require treatment with intravenous antibiotics and surgery, frequently resulting in a permanent deformity.13 Medical professionals relate stories of serious injuries when nipple rings are ripped from the skin, either from accidentally catching on clothing or a vindictive lover pulling off the ring.14

Recent medical reports indicate that one of every five piercings becomes infected, largely due to dirty puncture wounds.15 Twenty-four percent of piercings result in bacterial infections accompanied by purulent discharge.16 Health officials voice concerns that piercing parlors can cause an increased risk of Hepatitis B and C, HIV/AIDS, tetanus, syphilis, and tuberculosis.17 The American Red Cross is concerned enough about the risks of body piercing that it is a factor which disqualifies a potential blood donor for a full year.18 Less serious local infections and allergic reactions can cause illness, deformity, and scar-ring.19 One Los Angeles area hospital says it treats allergic reactions to body piercing at least once a week.20 Many of these infections can be contagious through contact, and in the case of oral piercings, through sharing food or drink.

Oral piercing presents some special concerns. Oral piercing often involves the lips, cheeks, tongue, uvula, or any combination of these sites, with the tongue being the most commonly pierced oral site. However, the moist, active environment of the mouth provides an

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ideal setting for piercing-based infection and injury. The piercing of oral structures presents a high risk of infection because of the vast amount of bacteria in the mouth.21

The American Academy of General Dentistry warns that dental problems can arise from oral piercings. Dentists report patients with chipped teeth, uncontrollable drooling, gum damage, nerve damage, loss of taste, tooth loss, and infection.22 According to a study published in General Dentistry, fractured teeth are a common problem resulting from tongue piercing.23 Patients with barbell-shaped jewelry in pierced tongues have developed gingivitis from habitually rubbing the ball of the jewelry along the front of their gums.24 In at least one case study in General Dentistry, damaged gum tissue had to be replaced with tissue from the back of the patient's mouth.25

The health risks of body piercing are exacerbated by the fact that the industry is largely unregulated. Only ten states have health and sanitation standards for body piercing studios.26 In response to parent complaints, state legislatures have started to enact statutes to limit the accessibility of body piercing for minors. Some states require written parental consent,27 some require a parent to be present when a minor is pierced,28 and others will allow either written permission or a parent's physical presence.29 In Mississippi, children under eighteen years of age are prohibited from having a body piercing at all.30 This particular concern about piercing minors stems not only from the

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states' natural protection of parental control, but from the unique dangers that body piercing poses to adolescents. Experts report that minors contract infections in piercing at higher rates, and that a spurt of tissue growth can dramatically shift the position of a piercing.31

Like the medical community, schools were initially caught off guard by the body piercing craze. However, when kids started disrupting classes by displaying new piercings, asking the school nurse to treat infected piercings, and advising each other on how to pierce themselves, many schools took action. The question now is: are antipiercing rules constitutionally permissible?

III. FIRST AMENDMENT PROTECTION OF BODY PIERCING (OR HOW CAN YOU EXERCISE FREE SPEECH WITH THAT THING IN YOUR MOUTH?)

When schools have enforced policies prohibiting body piercing at school, some students and parents have asserted that their display of exotic piercings is protected by the First Amendment.32 Confusion persists about the extent to which school systems may regulate student attire and appearance. The bottom line is that, while students do have constitutionally protected rights while at school, they will search in vain to find a provision in the Constitution that specifically enables them to pierce their eyebrows, noses, or navels.

A. Student First Amendment Rights

In 1966, public students' free speech rights were first recognized by a United States Circuit Court of Appeals in Burnside v. Byars.33 At issue was whether students could be suspended for wearing "freedom buttons" which were worn to encourage blacks to exercise their civil rights.34 The students were suspended under a disciplinary regulation which insured that students and faculty were not subject to "annoying, distracting or disorderly conduct."35 Because maintaining and protecting the public school system was a compelling interest, the court balanced the regulation against the First Amendment rights of the students.36 The principal of the school claimed that the buttons did not bear on the students' education, would disturb the school program, and would cause a commotion in the classroom.37 There was no evidence, however, that regular school activities were hampered or

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that the school schedule was otherwise disturbed.38 In fact, the principal testified that the students were suspended merely for violating the regulation and not for interfering or disrupting classes.39 The Court held that, although school officials had a wide latitude of discretion to protect the educational system, the policy...