9th Circuit Casts Doubt on Policy Requiring School Uniform With Motto

By Mark Walsh — February 14, 2014 2 min read

A federal appeals court has cast legal doubt on a Nevada school district’s uniform policy, holding that requiring students to wear shirts with the motto “Tomorrow’s Leaders” is a form of compelled speech that implicates the First Amendment.

The three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, stopped short of striking down the uniforms of Roy Gomm Elementary School in the Washoe County school district. The court said the district did not have the chance to present justifications for the infringement on speech because a family’s lawsuit was dismissed in a federal trial court at an early stage.

The 9th Circuit panel also held that an exception to the school uniform policy allowing students to wear Boy Scout or Girl Scout uniforms on days they have meetings was a content-based restriction that also implicated the free speech clause.

The uniform policy at the Reno, Nev., school drew an objection in 2011 from Mary Frudden, the mother of a 5th grade boy and 3rd grade girl. Court papers say the students initially challenged the policy by wearing their American Youth Soccer Organization uniforms to school, with Ms. Frudden arguing to school officials that the soccer outfits met the policy’s exemption covering scouting uniforms. That didn’t fly, and the Frudden children were forced to wear the school uniforms, which include a depiction of a gopher for Roy Gomm Elementary and the “Tomorrow’s Leaders” motto.

The Fruddens sued the Washoe County district on free speech grounds. A federal district court dismissed the suit, citing a 2008 9th Circuit decision that upheld another Nevada school district’s uniform policy. But the uniforms at issue in that case, Jacobs v. Clark County School District, were, for the most part, plain polo shirts and khakis and did not involve a leadership motto.

In its unanimous Feb. 14 decision in Frudden v. Pilling, the 9th Circuit court panel distinguished the 2008 ruling.

In the new case, the court said, the Washoe County 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.” That was a reference to a 1977 U.S. Supreme Court decision, Wooley v. Maynard, that struck down the Granite State’s requirement that motorists display the historic motto.

“Practically speaking, [Roy Gomm Elementary School] compels its students to be an instrument for displaying the RGES motto,” U.S. Circuit Judge Jacqueline H. Nguyen wrote for the court. “Had the RGES uniforms consisted of plain-colored tops and bottoms, as in Jacobs, RGES would have steered clear of any First Amendment concerns. However, by mandating the written motto on the uniform shirts, the RGES policy compels speech.”

The court panel went on to hold that the exemption for scouting uniforms was a content-based distinction that also raised First Amendment concerns.

The court said the school district should be given the chance at the district court level to justify its policy under a strict scrutiny standard. The panel even suggested that “on remand, the elementary school context may be relevant in weighing [the school’s] interest in including the motto on the uniform shirt.” But the court basically said the record was undeveloped with respect to the school district’s justifications.

[Hat Tip, with no mottoes, to How Appealing.]

A version of this news article first appeared in The School Law Blog.


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