Metropolitan News-Enterprise


Tuesday, May 13, 2008


Page 1


Ninth Circuit Upholds Mandatory School Uniform Policy


By STEVEN M. ELLIS, Staff Writer


A Nevada school district’s policy requiring students to wear uniforms does not violate the students’ First Amendment rights, a panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Affirming a grant of summary judgment in favor of the Clark County School District by U.S. District Judge Roger L. Hunt of the District of Nevada, the panel held, 2-1, that the district’s policies did not violate the students’ free speech rights because the uniform policies were viewpoint- and content-neutral, and were therefore only subject to intermediate scrutiny.

However, attorney Allen Lichtenstein of the ACLU of Nevada, who represented the students, predicted that his clients would petition for en banc review, pointing to a dissent by Judge Sidney R. Thomas who accused the panel of rewriting and undermining free speech protections for students previously set forth in U.S. Supreme Court and Ninth Circuit precedent.

The students filed suit against the district challenging its uniform policy after the district enacted a regulation creating a standard dress code for all students which allowed individual schools in the district to establish more stringent school uniform policies.

They argued that the specific policies implemented by a number of schools in the district—requiring “solid khaki-colored bottoms and solid-colored polo, tee, or button-down shirts (blue, red or white) with or without [school] logos”—violated students’ rights to free speech and free exercise of religion, and that the district had violated students’ due process rights in implementing the policies by failing to seek parental approval as required by the regulation.

Hunt concluded that the district’s uniform policies did not violate the students’ free speech rights because the policies survived intermediate scrutiny, and the Ninth Circuit, in an opinion by Judge Michael Daly Hawkins, agreed.

The students had contended that the policies were subject to heightened scrutiny based on the Ninth Circuit’s decision in Chandler v. McMinnville School District (1992) 978 F.2d 524, arguing that speech that was neither “vulgar, lewd, obscene, [or] plainly offensive” nor “school-sponsored” was required to be analyzed under the standard utilized in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503, where the Supreme Court held that students wearing black armbands to protest the Vietnam War did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, Hawkins opined that the policies were viewpoint- and content-neutral, even though they allowed the logo of the school to be displayed, and that they therefore were not automatically subject to heightened scrutiny under Tinker.

Applying intermediate scrutiny, he concluded that the school had advanced important government interests unrelated to suppression of speech in ways that effected as minimal a restriction on students’ free expression as possible, and upheld the policies.

Hawkins similarly rejected students’ claims that enforcing the policies amounted to “compelled speech,” because it was “unlikely anyone viewing a uniform-clad student would understand the student to be communicating a particular message via his or her mandatory dress.”

Turning to the students’ free exercise claims, Hawkins concluded that Hunt had properly granted summary judgment for the district on the students’ claims, because both the regulation and the policy implemented were “valid and neutral law[s] of general applicability,” and did not implicate the Free Exercise Clause.

He also opined that Hunt had properly granted summary judgment on the students’ claims that the district implemented the policy without following parental survey procedures that had been included in the regulation because the Fourteenth Amendment did not grant individuals a due process right to participate in policymaking.

Judge Richard R. Clifton joined Hawkins in his opinion.

However, Thomas wrote in dissent that the majority had erred in examining the regulation of the speech, rather than the nature of the speech itself, and accused it of engaging in “little more than an analytical sleight of hand, a trick of misdirection.”

Writing that “[i]t is the character of the speech, not the content of the governmental regulation that forms the framework of the First Amendment analysis in student speech cases,” Clifton said that the majority should have analyzed the case under Tinker’s heightened scrutiny.

Clifton also wrote that, even if the majority had applied the correct standard, evidence showing that schools had interpreted the language allowing logos to prohibit all messages on clothing except for those that supported the school showed that the policies were not viewpoint- or content-neutral.

He similarly concluded that the policies failed the first step of intermediate scrutiny—furthering an important governmental interest—because the stated purpose of the policies was to promote “school spirit,” but there was no actual empirical evidence in the record that the policies actually furthered that interest.

“[T]he governmental interest in promoting ‘school spirit’ cannot come close to outweighing [a student’s] First Amendment rights,” he wrote.

Attorney C.W. Hoffman Jr., who represented the district, told the MetNews that his client was pleased with the decision.

He continued:

“The 50 schools of the 312 in the district with standardized student attire will continue to believe that having standardized uniforms improves school environment and lends itself to student achievement.”

The case is Jacobs v. Clark County School District, No. 05-16434.


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