Nevada school uniform policy struck down by Ninth Circuit appeals court

NEVADA — A Nevada public school’s uniform policy requiring students to display a motto — ”Tomorrow’s Leaders” — might not jibe with the First Amendment, an appeals court has ruled.

In January 2012, a district court dismissed Mary and Jon Frudden’s claim that Reno’s Roy Gomm Elementary School’s mandatory uniform policy violated their children’s right to freedom of speech. But in an opinion released Friday, the Ninth U.S. Circuit Court of Appeals reversed the decision and sided with the parents, saying the policy “compels speech because it mandates the written motto, ‘Tomorrow’s Leaders,’ on the uniform shirts.”

The court also took issue with a part of the policy that allows students to don uniforms of “nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days.” That exemption is content-based and subject to strict-scrutiny review, the court opinion said.

“In a nutshell, we disagreed with the process and the reasons for establishing and implementing the school uniform,” Mary Frudden said in an interview, adding that she was “very thrilled” with the court’s decision.

The Fruddens’ issues began in the fall of 2011, when their children wore American Youth Soccer Organization uniforms to school. The AYSO is a nationally recognized organization and meets at least Monday through Friday, the court opinion said.

Despite Mary Frudden’s protests, both children were removed from class and asked to change their clothes. Principal KayAnn Pilling told Mary Frudden that the exemption for national youth organization uniforms on meeting days did not apply because the children did not have a meeting or soccer practice that day. The children wore the same outfits to school the next day and were, again, removed from class and asked to change.

Pilling could not be reached for comment.

The Student Press Law Center filed a friend-of-the-court brief on behalf of the Fruddens. SPLC’s brief argued that the precedent set by 1969’s Tinker v. Des Moines Independent Community School District set a threshold that students protesting a school uniform rule shouldn’t face disciplinary blowback unless the protest causes “material and substantial disruption.”

The Ninth Circuit agreed with the Frudden family’s analogy to a 1977 Supreme Court case in which the U.S. Supreme Court struck down a New Hampshire law that required drivers to exhibit license plates with the state slogan, “Live Free or Die.”

People probably didn’t think all drivers lived by that motto, but it required some motorists to display a message they openly opposed, said Eugene Volokh, a law professor at the University of California Los Angeles, who represented the Fruddens pro bono.

“People have the right to not be compelled to be moving billboards,” Volokh said.

When the lower court threw out the Fruddens’ case in January 2012, it cited the Ninth Circuit’s decision regarding Jacobs v. Clark County School District, which upheld a high school’s dress code allowing students to wear only certain solid colors without messages or images. The Ninth Circuit rejected this comparison because Roy Gomm’s uniform policy’s exemption for Boy Scouts and Girl Scouts makes the policy content-specific, rather than “content-neutral,” and requires students to exhibit an “expressive message.”

The Jacobs case stemmed from a student wearing religious materials to school, said Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada. The court got it wrong with its ruling on Jacobs, he said, but the decision regarding the Frudden children was a “step in the right direction, albeit a small one.”

To contrast, the Fruddens’ case establishes that students can’t be compelled to make statements with their clothing, while the Jacobs case holds the opposite — uniform policies can outlaw students from making statements with their clothing, Lichtenstein said.

“This cuts back a little on Jacobs,” Lichtenstein said. “I think that the right of free speech should not stop at the schoolhouse door, and that students should have the right to, one, opt out of any school-uniform policy and, more importantly, that they should have the right to wear messages on their clothing to express religious or political points of view.”

By Rex Santus, SPLC staff writer. Contact him by email or at (703) 807-1904 ext. 119.

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