Eugene Volokh is on quite the winning streak.
The professor and blogger, fresh off a victory in another pro bono free speech case (the ongoing Crystal Cox saga), scored again, this time on behalf of parents who were challenging their children's school's uniform policy. The Ninth Circuit held that the policy, which required "Tomorrow's Leaders" to be displayed on students' shirts, and which had exemptions for certain national youth organizations, constituted compelled speech and content-based discrimination.
The ruling narrows an earlier Ninth Circuit school uniform opinion from 2008, Jacobs v. Clark County School District, which allowed a school uniform policy. The uniforms in that case lacked any slogan or message.
The Roy Gomm Elementary School in Reno, Nevada requires its students to wear school uniforms with the mandatory motto. There is an exception, however, for uniforms from "nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days."
The Fruddens, who argued against the adoption of the policy, first sent their children to school without the required uniforms. No disciplinary action was taken.
After two weeks, they sent their children to school in their American Youth Soccer Organization uniforms. Apparently AYSO uniforms attracted attention, as the kids were removed from class and asked to change because there was no AYSO meeting or practice that day. The family repeated the protest the next day, and the kids were again removed from class.
The district court dismissed the parents' First Amendment challenge to the policy, citing Jacobs.
Relying on the Supreme Court's landmark Pledge of Allegiance in schools and New Hampshire "Live Free or Die" license plate cases, the Ninth Circuit reversed the district court and held that the slogan amounted to compelled speech.
"RGES'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, RGES compels its students 'to be an instrument' for displaying the RGES motto."
The Ninth Circuit also took issue with the policy's exemptions for certain youth groups, noting that the policy favored national organizations over local alternatives, and promotes youth organizations over other clothing-based speech that students may choose to wear otherwise. In short, it's a content-based restriction on speech.
Squaring with Jacobs
This case is was distinguished from Jacobs on the basis of the uniforms themselves -- that case involved plain uniforms with no logos and had no exemptions for favored youth organizations. Schools wishing to implement a uniform policy, therefore, should note that they can block all clothing-based speech through plain uniforms.
Slogans, however, may have to be optional.
- Frudden v. Pilling (FindLaw's CaseLaw)
- Nevada school uniform policy struck down by Ninth Circuit appeals court (Student Press Law Center)
- Student Can't Wear 'Inflammatory' Confederate Flag T-Shirts (FindLaw's Fourth Circuit Blog)
- North Carolina Loses 'Choose Life' License Plate Speech Dispute (FindLaw's Fourth Circuit Blog)