Most people say, “I know my rights.” How well do you know yours?
The First Amendment guarantees freedom of speech and expression without interference from “state action.” This means Congress and other state or local government entities cannot pass laws establishing religion or infringing upon freedom of speech.
There is First Amendment protection for one’s speech in places like public schools, with public employers, etc. There is no right to free speech when it comes to private entities, such as private employers, except for when they accept taxpayer funding (such as federal grants).
Fundamental rights are federally applied through the Fifth Amendment’s due process clause and at the state level through the 14th Amendment. This means students attending a state college or university have free speech rights, because the 14th Amendment applies the First Amendment to those institutions.
What Does the First Amendment Guarantee?
The verbiage of the First Amendment is as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There are entire courses of study focused on the First Amendment, but for we will examine the First Amendment right to freedom of speech and free exercise of religion in the context of how it applies to Native students’ right to wear regalia at graduation ceremonies.
Speech is defined as the right to expression (including the right to speak, not to speak, to display political or other slogans on t-shirts, bumper stickers, to wear religious medals as an expression of one’s faith, and clothing such as tribal regalia at graduation ceremonies as an expression of one’s culture, and more). First Amendment rights of speech are limited, but there are guardrails on how governments can curtail them.
The First Amendment also prohibits the establishment of state-sponsored religion (called the establishment clause) and prohibitions of the free exercise of religion (called the free exercise clause), which can include wearing religious or spiritual clothing, jewelry, hairstyles, or other ornamentation.
Regulations must meet the “strict scrutiny” test applied to fundamental rights: any government regulation must be necessary and meet a compelling government interest. The regulation cannot be vague (with no clear prohibition of conduct) or overbroad (the regulation cannot substantially burden more speech than necessary to meet a compelling government interest. A compelling interest can be defined as ensuring public safety from violence, for example).
Wearing tribal regalia is a fundamental right Protected by the First Amendment and some state laws, meaning Indigenous students have the legal right to wear tribal regalia at graduation ceremonies at public schools.
Yet even with legal protection, some schools prohibit Indigenous students from wearing their regalia or traditional clothing using dress codes as a pretext.
Native students should know the right to wear tribal regalia is legally protected in two ways: under federal law by the First Amendment and in many states by state laws.
Federal Law
Under the First Amendment, Native students wearing regalia at graduation is considered both protected free speech and a matter of religious freedom (free exercise of religious beliefs). For Native students, wearing an eagle feather or beadwork has both cultural and spiritual significance.
This is particularly significant because during the boarding school era in the United States, which spanned from the mid-17th to the early 20th centuries, Native children were prohibited from wearing their regalia, practicing their religions and traditions, and speaking their languages as part of missionaries’ and the government’s attempts to forcibly assimilate them into Anglo-American culture. Wearing regalia at graduation is a way for Native students and their families to not only celebrate a student’s achievement, but a way for families and communities (who worked together to create the regalia) to honor their graduates’ achievements—while celebrating their cultures.
For the purposes of the First Amendment’s freedom of speech and expression, regalia is protected symbolic speech as a representation of a student’s culture and beliefs.
And because the First Amendment’s Free Exercise Clause protects wearing regalia, denying students the right to wear it under the guise of enforcing a dress code may violate students’ Constitutional rights. Federal cases often turn on whether other students are permitted to decorate mortarboards, wear honor cords, and more.
The American Civil Liberties Union notes that school prohibitions against wearing regalia can violate federal laws against discrimination based on race, ethnicity, or national origin (Title VI).
State Laws
Students seeking to wear beadwork or an eagle feather on their graduation caps, traditional moccasins and leggings, and traditional hairstyles are protected by the right to do so both afforded by both the U.S. Constitution and state laws enacted in many states.
Ensuring Your Right to Wear Your Right to Wear Regalia Entails Proactive Communication
To ensure your rights are upheld on graduation day without incident, the American Indian College Fund urges students to be proactive and to work with school administrations far in advance of graduation to ensure their graduation celebration is observed in a traditional and meaningful way without incident.
Following are guidelines adapted from the Native American Rights Foundation on how to notify school officials of your intent to wear regalia on graduation day. The sooner you communicate your plan to participate in your graduation ceremony in a cultural way with school administrators, the fewer snags you will encounter along the way.
You will want to research your school policy regarding wearing Native American regalia at graduation.
If your institution has a strict graduation dress code, write a letter explaining the spiritual and cultural significance of wearing regalia in a letter to the school board and administrative leadership at your school.
For detailed information, check out the following resources about your right to wear regalia at graduation.
- NARF Brochure: Wearing Eagle Feathers at Graduation: A Guide for Students,
- NARF Brochure: Wearing Eagle Feathers at Graduation: A Guide for Schools
- American Civil Liberties Union (ACLU) details about your U.S. Constitutional Rights: Your Rights to Wear Tribal Regalia
Finally, congratulations on your upcoming graduation and this great achievement!
Below is a downloadable resource we’ve created to help provide guidance for students who want to wear regalia at their graduation:
