Rarely do you read a court opinion that explicitly says that the court is reaching the wrong decision. But that is in fact what happened in the Ninth Circuit's recent opinion in the Frudden v. Pilling First Amendment school uniform case which has ping-ponged through the courts since 2011.
In the section aptly titled "Our Disagreement with the Result We Are Required to Reach" the court, not surprisingly, goes into detail as to why it disagrees with the very decision it is bound to render by its own precedent. Fortunately for the plaintiffs in the matter, two parents that objected to their children wearing the uniforms, that controversial decision held that the school's uniform policy was unconstitutional.
No Mottos for Young Children
As the prior Ninth Circuit panel found, the motto required on the school's uniform's amounted to compelled speech, and thus needed to pass strict scrutiny to pass constitutional muster.
However, on appeal a second time, the Ninth Circuit found its panel's logic flawed:
According to the prior panel, the motto "Tomorrow's Leaders" is subject to strict scrutiny because its viewpoint celebrates leadership at the expense of those who are followers. Anodyne, feel-good statements such as "Tomorrow's Leaders" are common in public schools. A number of mottos would be subject to strict scrutiny and struck down under the panel's rationale. What about a motto "We Succeed Together"? Some students are loners. What about "School Pride"? Some students are not proud of their school. What about "Stand Tall"? Some students are short. To subject such mottos to strict scrutiny makes no sense.
The opinion is full of surprises, including a brief explanation on how the appellate court tried to convene en banc to reverse the prior panel's holding, but failed. However, none may be more surprising than the fact that the matter was remanded with instructions to the district court to figure out how much should be awarded in damages.