Tuesday, February 18, 2014
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Panel Revives Free-Speech Challenge to School Uniform Mandate
Inclusion of Motto Makes Requirement Subject to Strict Scrutiny, Ninth Circuit Judges Say
By MICHAEL J. PEIL, Staff Writer
A requirement that public school students wear a uniform displaying a motto compels speech, and a dress code exemption that allows wearing the uniforms of nationally recognized organizations is presumptively unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel, in an opinion by Judge Jacqueline H. Nguyen, reversed the court’s dismissal of school parents Mary and Jon Frudden’s 42 U.S.C. §1983 claim that a Nevada school’s mandatory uniform policy violated the First Amendment.
Nguyen explained that the court improperly dismissed under Federal Rules of Civil Procedure Rule 12(b)(6), since the school’s mandatory uniform policy unconstitutionally compelled speech by mandating students to wear uniform shirts displaying the motto “Tomorrow’s Leaders.”
The Fruddens argued that the school logo conveyed two viewpoints, that leadership should be celebrated above being a follower, and that the school is likely to produce the leaders of tomorrow.
Viewpoint Discrimination
Nguyen agreed and said the uniform policy compelled the students to endorse a particular viewpoint and should therefore be subject to strict scrutiny. Nguyen explained, however, that the First Amendment analysis did not depend on the ideological message of the motto.
U.S. District Judge Robert C. Jones of the District of Nevada had justified the dismissal of the claim by relying on Jacobs v. Clark County School District 526 F.3d 419 (9th Cir. 2008). Citing that case, he said:
“[t]here is no meaningful risk that a bystander would think any of the hundreds of identically dressed young children on the grounds of an elementary school individually chose the motto.”
In Jacobs, the Ninth Circuit upheld a high school’s mandatory uniform policy that required students to wear plain colored clothes. Parents challenged the policy arguing that the uniforms violated the First Amendment since it compelled the student to convey a message of support for conformity, but the court held that the clothes did not force children to communicate any message.
Cases Distinguished
Nguyen explained that the panel’s reasoning in a case involving plain clothes was distinguishable from a case where clothes included a motto. She said that mandating the wearing of uniforms with mottos was more analogous to the unconstitutional practice of requiring drivers to have license plates with a motto, discussed in Wooley v. Maynard, 430 U.S. 705 (1977).
She said:
“[The school’s] inclusion of the motto ‘Tomorrow’s Leaders’ on its uniform shirts is not meaningfully distinguishable from the State of New Hampshire’s inclusion of the motto ‘Live Free or Die’ on its license plates. Practically speaking, [Roy Gomm Elementary School] compels its students ‘to be an instrument’ for displaying the RGES motto.”
The uniform mandate also included an exemption for students who wear “a uniform of a nationally recognized youth organization such as Boy Scout or Girl Scouts on regular meeting days.”
The Fruddens challenged the uniform exemption because their children were requested to change out of their American Youth Soccer Organization uniforms.
The panel held that this exemption was a content-based restriction on clothing speech because it favored certain clothing distinctions.
Nguyen said:
“[T]he exemption explicitly favors the uniforms of the Boy Scouts and Girl Scouts over all other uniforms (e.g. those of the AYSO), and favors the uniforms of ‘nationally recognized’ youth organizations over those of locally or regionally recognized youth organization…The determination concerning whether a given youth organization is ‘nationally recognized’ – to some undefined degree – ‘cannot help but be based on the content.’”
Volokh’s Comment
UCLA law professor Eugene Volokh, who briefed and argued the case for the Fruddens, said on his blog the Volokh Conspiracy about the uniform’s chance of meeting strict scrutiny on remand:
“[T]his is an extremely demanding standard, and I think it’s hard to imagine the motto requirement and the ‘nationally recognized you organization’ exception are really necessary to serve a compelling interest.
A spokesperson for the Washoe County School District was unavailable for comment.
In May 2011, Roy Gomm Elementary School instituted its mandatory uniform policy. The policy was implemented after two-thirds of the families approved of the dress code, over the objection of some parents.
The policy required that students must wear the uniforms during school hours, and that a failure to comply would result in detention on the first offense, in-school suspension or Saturday school for the second, and out-of-school suspension for subsequent offenses.
The case is Frudden v. Pilling, 12-15403.
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