Jacobs v. Clark County School Dist.

• Citation: 526 F.3d 419
• Decision Date: 12 May 2008
• Docket Number: No. 05-16434.,05-16434.
• Parties: Kimberly JACOBS; Donald Jacobs; Linda Rowley; Dwight Terry, Jr.; Dwight Terry, Sr.; Shane Dresser; Donald Dresser; Wendy Dresser; Lona Finley; Whitney Rose; Lynn Rose; Deanna Wright, Plaintiffs-Appellants, v. CLARK COUNTY SCHOOL DISTRICT; Marge Appuglise; Shirley Barber; Susan Brager-Wellman; Denise Brodsky; Penny Elliot; Emelio Fernandez, Jr.; Carlos Garcia; Ruth Johnson; Larry Mason; Sheila Moulton; Darlene Russell; Mary Beth Scow; Milana Winter, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

526 F.3d 419

Kimberly JACOBS; Donald Jacobs; Linda Rowley; Dwight Terry, Jr.; Dwight Terry, Sr.; Shane Dresser; Donald Dresser; Wendy Dresser; Lona Finley; Whitney Rose; Lynn Rose; Deanna Wright, Plaintiffs-Appellants, v. CLARK COUNTY SCHOOL DISTRICT; Marge Appuglise; Shirley Barber; Susan Brager-Wellman; Denise Brodsky; Penny Elliot; Emelio Fernandez, Jr.; Carlos Garcia; Ruth Johnson; Larry Mason; Sheila Moulton; Darlene Russell; Mary Beth Scow; Milana Winter, Defendants-Appellees.

No. 05-16434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2007.

Submission Vacated May 3, 2007.

Resubmitted August 15, 2007.

Filed May 12, 2008.

Allen Lichtenstein, General Counsel, ACLU of Nevada, Las Vegas, NV, for the plaintiffs-appellants.

C.W. Hoffman, Jr., Donna Mendoza-Mitchell, and Jeanne-Marie Pochert Hanna, Clark County School District, Office of the General Counsel, Las Vegas, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Roger L. Hunt, District Judge, Presiding. D.C. No. CV-S-04-01490-RLH.

Before: HAWKINS, SIDNEY R. THOMAS, and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge THOMAS.

MICHAEL DALY HAWKINS, Circuit Judge:

Public school districts across the country have increasingly turned to the adoption of mandatory dress policies, sometimes referred to as "school uniform policies," in an effort to focus student attention and reduce conflict. These policies are not without controversy, and many students, as well as their parents, find them offensive to their understanding of core First Amendment values. In a case of first impression in this circuit, we address just such a set of challenges and largely conclude that public school mandatory dress policies survive constitutional scrutiny.

FACTUAL & PROCEDURAL HISTORY

In 2003, the Clark County School District ("the District") promulgated Regulation 5131 ("the Regulation"),¹ which created a standard dress code for all Clark County students² and established a means by which individual schools in the District could establish more stringent mandatory school uniform policies.³ These uniform policies were to be established "for the purpose[s] of increasing student achievement, promoting safety, and enhancing a positive school environment."⁴

A number of schools in the District instituted such uniform policies. For example, Liberty High School ("Liberty") instituted a policy requiring all students to wear "solid khaki-colored bottoms and solid-colored polo, tee, or button-down shirts (blue, red or white) with or without Liberty logos."⁵ Kimberly Jacobs ("Jacobs"), then an eleventh-grader at Liberty, repeatedly violated Liberty's uniform policy (at least once by wearing a shirt containing a printed message reflecting her religious beliefs). As a result of these violations, Jacobs was repeatedly referred to the Dean's office and was ultimately suspended from school five times for a total of approximately twenty-five days. Although Liberty provided Jacobs with educational services during her suspensions⁶ — and, in fact, Jacobs's grade point average improved during that time period⁷ — Jacobs claims that she missed out on classroom interactions, suffered reputational damage among her teachers and peers, had a tarnished disciplinary record, and was unconstitutionally deprived of her First Amendment rights to free expression and free exercise of religion because of Liberty's enforcement of its mandatory school uniform policy.⁸

Jacobs and her parents thus brought suit against the District and various individual defendants (collectively, "Defendants"), asking the court to: (1) declare N.R.S. § 392.458, the Regulation, and Liberty's mandatory school uniform policy unconstitutional as violating the First Amendment's Free Speech and Free Exercise clauses, as well as the Fourteenth Amendment's Due Process Clause; (2) expunge all related discipline from Jacobs's record; and (3) award her appropriate damages.⁹ Without expressing any view on the constitutionality of Liberty's uniform policy or its authorizing regulation and statute, the district court granted Jacobs's motion for a preliminary injunction and enjoined Liberty from further disciplining or suspending Jacobs for failing to adhere to the policy.¹⁰ Following this decision, the District slightly amended the Regulation, with the only significant changes being: (1) a relaxation of the amount of parental support needed to enact a school's uniform policy;¹¹ and (2) elimination of one portion of the Regulation about which the district court expressed "strong reservations."¹² Additionally, Liberty expunged all uniform-related discipline from Jacobs's record.

Encouraged by Jacobs's success in obtaining a preliminary injunction — and concerned about the suit's viability after Jacobs had withdrawn from Liberty and moved to a new school district — a number of other District students and their parents (collectively, "Plaintiffs") joined the suit.¹³

Shane Dresser ("Dresser") — a student at Jim Bridger Middle School ("Bridger") at the time this suit was filed¹⁴ — alleged, inter alia, that his right to free exercise of religion was violated when, after being denied a religious exemption from Bridger's uniform policy, he was forced to wear the required uniform. Dresser had applied for an exemption on the ground that his religion teaches its members to embrace their individuality and further teaches that, even though "uniformity can be accepted by an individual if they choose to do so by their own free will, ... no one can force uniformity onto a person." Dresser's application was denied without explanation.¹⁵

Dwight Terry, Jr. ("Terry") — a student at Chaparral High School ("Chaparral") — alleged that, on at least five occasions, he was sent to the principal's office for the remainder of the school day for failing to wear the required school uniform. Neither the amended complaint nor any evidence in the record provides any additional information regarding Terry's violations. Specifically, the record does not indicate whether Terry's non-compliance was due to a religious objection, a desire to communicate a particular message (either via his dress itself or via a printed message contained on his clothing), a desire to cause disruption in his school, or simple forget-fulness. Chaparral is not presently enforcing a school uniform policy.

Whitney Rose and John Does I & II-students at Frank E. Garside Jr. High School ("Garside") and Glen Taylor Elementary School ("Glen Taylor"), respectively — alleged that their due process rights were violated when their schools implemented school uniform policies without complying with the parental survey requirements included in the original Regulation.¹⁶ Of these three students, only John Doe I continues to attend a District school with a mandatory uniform policy.

Defendants moved to dismiss Plaintiffs' amended complaint under Rule 12(b)(6). After advising the parties that Defendants' motion might be construed as one for summary judgment, and after the parties supplemented the record accordingly, the district court struck two provisions of the Regulation,¹⁷ but otherwise granted summary judgment in favor of Defendants, finding no other constitutional infirmity with N.R.S. § 392.458, the Regulation, or the individual schools' uniform policies. See generally, Jacobs, 373 F.Supp.2d at 1162. Plaintiffs appeal this judgment.

DISCUSSION

I. Justiciability

Before turning to the constitutional claims lodged against the District's school uniform policies, we must ensure that at least one plaintiff presents a justiciable "case or controversy" with respect to each constitutional claim. U.S. Const. art. III; City of S. Lake Tahoe v. Cal. Tahoe Reg'l Planning Agency, 625 F.2d 231, 233 (9th Cir.1980). For a plaintiff's claim to be justiciable, he or she must have standing to bring the claim, and the claim must not be moot. Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006).

A plaintiff has standing to challenge allegedly unconstitutional conduct as long as: (1) he or she has "suffered an `injury in fact'"; (2) there is a "causal connection between the injury and the conduct complained of"; and (3) it is likely "the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). While standing is determined based on the facts "as they exist[ed] at the time the complaint was filed," id., a case becomes moot — and, hence, non-justiciable — if the "requisite personal interest" captured by the standing doctrine ceases to exist at any point during the litigation. See U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.2002).

Although many of Plaintiffs' claims for declaratory and injunctive relief appear to be moot (as only one plaintiff continues to attend a District school that is currently enforcing a mandatory school uniform policy), Plaintiffs' amended complaint seeks not only prospective relief, but also "appropriate damages." As this court clarified in Bernhardt, a "live claim for [even] nominal damages will prevent dismissal for mootness." 279 F.3d at 872. We thus examine each of Plaintiffs' constitutional claims to determine whether at least one plaintiff meets the three standing requirements and retains a "live claim for [at least] nominal damages." See id.

A. Freedom of Speech

Plaintiffs allege that the District's mandatory school uniform policies infringe upon students' free speech rights by preventing them from engaging in both constitutionally protected "pure speech" and constitutionally protected "expressive conduct," as well as by compelling them to "speak" in a particular manner.¹⁸

When a plaintiff alleges...