RELEASE: Protect students’ rights to express dissent with school dress codes, SPLC tells federal appeals court





FOR IMMEDIATE RELEASE

June 25, 2015
Contact: Frank LoMonte, Executive Director
director@splc.org or 202-872-1704

Armed with a brand-new U.S. Supreme Court ruling, the Student Press Law Center (“SPLC”) is asking a federal appeals court to overturn a ruling allowing a Nevada school to punish two brothers who non-disruptively protested a school uniform code.

In a friend-of-the-court brief Wednesday with the 9th U.S. Circuit Court of Appeals in San Francisco, the SPLC argued that the First Amendment requires rigorous scrutiny and a compelling justification before a public school can force students to wear a uniform bearing the school’s chosen slogan.

The case, Frudden v. Pilling, was brought by a Reno, Nev., couple in 2011 after the couple’s elementary-school children were threatened with punishment for wearing clothing noncompliant with their school uniform code. The Frudden children believe that wearing the uniform – which carries the school logo and the slogan, “Tomorrow’s Leaders” – endorses a message of conformity contrary to their beliefs.

In an earlier round of the case, the Fruddens (with the support of SPLC) received a favorable ruling from the Ninth Circuit, finding that the uniform code was constitutionally suspect because it created a selective content-based exemption letting students deviate from the school uniform only if they wore the uniforms of nationally recognized youth organizations such as the Boy Scouts. The court sent the case back to a U.S. district judge for reconsideration.

But in a February 2015 ruling, U.S. District Judge Robert C. Jones again sided with the school, despite the appeals court’s admonition. Jones found that the content-based exemption for scouting uniforms was justified by the school’s interest in sparing students the inconvenience of changing clothes for after-school meetings. Jones further found that the school was justified in punishing those who refused to wear the slogan, because dissenters might be marked as targets for bullying.

The brief relies on the Supreme Court’s newly issued June 18 ruling in Reed v. Town of Gilbert, which struck down a restrictive sign ordinance on First Amendment grounds because it made legally unjustifiable exceptions for certain categories of signs, such as those promoting political or ideological causes. The same rationale, the SPLC told the court, applies to the carve-out in the Roy Gomm Elementary School policy, which singles out only certain types of student organizations for relief from the uniform requirement.

The brief points out that, to allow a school to restrict student expression because of how bullies might react to that expression could be abused to justify limitless restrictions on students’ speech, even in their off-campus personal lives: “The district court’s theory would, for instance, allow schools to bar students from prominently participating in religious, political, or charitable outside-school events that highlight their differences from other students, or from wearing clothing outside school that accentuates such differences. Of course, such restrictions cannot be constitutional.”

The brief was prepared by First Amendment legal scholar Eugene Volokh along with students Michael Newborn, Melanie Rollins, Sina Safvati, and Anjelica Sarmiento in the UCLA School of Law’s Scott & Cyan Banister First Amendment Clinic.

“To override students’ interest in expressing themselves, especially in such a personal matter as their choice of clothing, a school district needs to show that the compromise of students’ rights is truly necessary for the orderly operations of the school. The school simply wasn’t able to do that here,” said attorney Frank D. LoMonte, executive director of the SPLC. “It’s incredibly dangerous for the welfare of all students for a school to claim authority over ‘non-conforming’ expression in the name of avoiding bullying. Students who wear the hijab or a yarmulke to school are marking themselves as ‘different’ and may be targeted for victimization based on that difference. But that is a justification for punishing the bullies, not for making the speaker espouse a school-approved set of majoritarian views.”

Since 1974, the Student Press Law Center has served as the nation’s only nonprofit legal assistance service dedicated to the needs of student journalists and the educators who work with them. More information about the work of the Student Press Law Center is available on its website at www.splc.org.

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