For families of high school seniors, graduation season means ordering an elaborate cake and opening congratulatory cards from Aunt Irene with a $10 bill tucked inside. For school administrators, graduation season brings questions from students and families about wearing cultural, religious, or symbolic attire during ceremonies. While schools have some authority over what students can wear during commencement ceremonies, that authority exists within constitutional limitations found in the First Amendment and state law.
First, know that you can regulate graduation attire when the regulation is tied to legitimate educational goals. The First Amendment protects student expression, but not all student speech is created equal. Courts draw a distinction between private student speech and school-sponsored speech. Because graduation ceremonies are school-sponsored events, courts have found that student regalia is considered school-sponsored speech, meaning schools can regulate what’s worn if the policy is reasonably related to legitimate pedagogical concerns (e.g., class unity, academic focus, avoiding controversy).
For example, in one case from Colorado, Villasano v. Garfield County School District 16 (D. Colo. 2023), a student was denied permission to wear a sash with Mexican and American flags at graduation to honor her heritage. The court ruled in favor of the school, holding that graduation regalia was school-sponsored speech and could be regulated based on the school’s interest in controlling the tone and message of the ceremony—even if that included allowing some regalia and disallowing others. Likewise, Dreaming Bear v. Fleming (D.S.D. 2010), a Native American student was required to wear a cap and gown over traditional clothing. The court found the graduation ceremony was a nonpublic forum and the school could impose restrictions so long as they were tied to educational goals. The school’s policy did not violate the student’s rights.
It is really important to remember that schools must not apply their regulation of graduation regalia selectively. For example, in Waln v. Dysart School District (9th Cir. 2022), a student who was an enrolled member of a Native American tribe asked the school district to accommodate her religious practice by allowing her to wear an eagle feather on her cap during her high school graduation. The school district refused to make an exception. The student arrived at her commencement wearing an eagle feather; and the school district prohibited her from attending the ceremony. In the lawsuit, the student alleged that other high school students were allowed to wear caps that violated the commencement dress code policy, such as a breast cancer awareness sticker. The court ruled in favor of the student, finding particular fault in the district’s selective enforcement of its policy such as not excluding a student’s secular message while burdening the student’s religious expression. The student also prevailed on her free speech claim.
Bottom line - schools may limit what students wear, as long as the restrictions relate to legitimate educational interests and are applied fairly and consistently.
In South Dakota, we have several laws which govern commencement regalia. For example, SDCL 13-1-66 states that schools “may not prohibit any Native American student from wearing an eagle feather, eagle plume, or an appropriate beaded graduation cap at a school honoring or graduation ceremony. A school administrator may determine if a beaded graduation cap is appropriate.” This legislative session a new law was passed regarding military-enlistment decoration which became effective March 11, 2025. SDCL 13-1-66.1 provides:
A student who is enrolled in a school district and has enlisted in the South Dakota National Guard or in a branch of the armed forces, as defined in § 36-1-2, may wear a sash, stole, or other military decoration at a school graduation ceremony, if the sash, stole, or decoration was issued to the student by the South Dakota National Guard or a branch of the armed forces, for the purposes of being worn at the graduation ceremony.
Both of these statutes are in effect this graduation season and you should keep them in mind if you receive a special request from a student seeking to wear commencement regalia that differs from board policy.
If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.