Frudden v. Pilling
| Decision Date | 14 February 2014 |
| Docket Number | No. 12–15403.,12–15403. |
| Citation | 742 F.3d 1199 |
| Parties | Mary FRUDDEN; Jon E. Frudden, Plaintiffs–Appellants, v. Kayann PILLING; Roy Gomm Uniform Committee; Health Morrison; Lynn Rauh; Washoe County School District; Debra Biersdorff, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Eugene Volokh, Mayer Brown LLP, Los Angeles, CA, for Plaintiffs–Appellants.
Randy A. Drake (argued), Chief General Counsel, Washoe County School District, Office of the General Counsel, Reno, NV; Michael E. Malloy, Kim G. Rowe and Debra O. Waggoner, Maupin, Cox & LeGoy, Reno, NV, for Defendants–Appellees.
Louis M. Bubala III, Armstrong Teasdale LLP, Reno, NV; Frank D. LoMonte and Adam Ezra Schulman, Student Press Law Center, Arlington, VA, for Amicus Curiae Student Press Law Center.
Nathan W. Kellum, Center for Religious Expression, Memphis, TN; Jonathan Scruggs, Alliance Defense Fund, Memphis, TN, for Amicus Curiae Alliance Defense Fund.
Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 3:11–cv–00474–RCJ–VPC.
Before: N. RANDY SMITH and JACQUELINE H. NGUYEN, Circuit Judges, and GORDON J. QUIST, Senior
District Judge.*
This case represents the latest First Amendment challenge to a public school's mandatory student uniform policy. Six years ago, in Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir.2008), we held that a public high school's mandatory uniform policy survives First Amendment scrutiny. Relying on Jacobs, the district court here dismissed Mary and Jon Frudden's claim that the mandatory uniform policy at their children's public elementary school, the Roy Gomm Elementary School (“RGES”), violates the First Amendment.
However, the RGES uniform policy differs in significant respects from the one we found constitutional in Jacobs. First, the RGES policy compels speech because it mandates that a written motto, “Tomorrow's Leaders,” be displayed on the shirt. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). By contrast, the uniforms in Jacobs consisted of plain-colored tops and bottoms, without any expressive message. Second, unlike the content-neutral policy in Jacobs, the RGES policy contains a content-based exemption for “nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days.”
These provisions in the RGES uniform policy implicate First Amendment protections and are subject to strict scrutiny review. Wooley, 430 U.S. at 715–16, 97 S.Ct. 1428. Because the district court did not examine whether there was sufficient evidence of the school's countervailing interests—and the record does not contain such evidence—we reverse and remand.
In May 2011, RGES instituted a mandatory, written uniform policy. The policy was implemented over the vigorous objection of one RGES parent, Mary Frudden, after two-thirds of families voted to approve mandatory school uniforms. Under the policy, students are required to wear red or navy polo-style shirts and tan or khaki bottoms. The RGES uniform shirts have the Roy Gomm logo on the front, which depicts a gopher with the words “Roy Gomm Elementary School.” Critically, the shirts also include a written message above the logo stating “Tomorrow's Leaders.” Students are not allowed to alter the uniform in any way.
All students must wear the uniform during school hours and all formal class activities before or after school. If a student does not comply with the uniform policy, RGES notifies the student's parents and the student must change into the approved uniform. Additionally, the non-compliant student will be assigned detention for the first offense, in school suspension, Saturday school, work crew, or multiple detentions for the second offense, out-of-school suspension for the third offense, and multiple days of out-of-school suspension for any further offenses.
The policy contains certain exemptions, including an exemption for students who wear “a uniform of a nationally recognized youth organization such as Boy Scouts or Girl Scouts on regular meeting days.”
The 2011–2012 academic year at RGES began on August 29, 2011. From August 29 to September 12, 2011, the Frudden children (a fifth-grade boy and a third-grade girl) did not wear the required uniform. The school did not take any disciplinary action and did not ask the children to change into the required uniform.
On September 12, 2011, both children wore American Youth Soccer Organization (“AYSO”) uniforms to school. AYSO is a nationally recognized youth organization which regularly meets at least Monday through Friday. The Frudden children's AYSO uniforms consisted of black shorts and shirts displaying the AYSO logo on the front. Mary Frudden informed school principal KayAnn Pilling that her children were wearing uniforms that fell within the written exemption to the policy.
Pilling told Frudden that the exemption did not apply because the children had neither a meeting nor soccer practice that day. Frudden protested to Debra Biersdorff, the Area Superintendent for the Office of School Performance. Biersdorff agreed with Pilling and said that Pilling could remove a student to compel compliance with the uniform policy. Pilling then called Frudden's son into her office and asked him to change. He agreed and changed into a loaner shirt that Pilling provided. Later, Frudden's daughter likewise changed into the school uniform.
The following day, September 13, 2011, the Frudden children again wore AYSO uniforms to school. Once again, Pilling removed the children from class and asked them to change. Both children agreed to change clothes, although Frudden's son stated that he did not want to do so. The next day, September 14, 2011, Frudden's son wore his RGES uniform shirt inside-out so that the logo was not visible. He turned his shirt right-side-out after he was called into Pilling's office and requested to do so.
On July 6, 2011, the Fruddens filed this action. On October 18, 2011, the Fruddens filed a First Amended Complaint, alleging sixteen claims for relief. This appeal relates only to the second claim for relief, brought pursuant to 42 U.S.C. § 1983, alleging that the mandatory uniform policy violates the children's First Amendment rights.
The district court granted Defendants' motion to dismiss. The Fruddens timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
“We review de novo the district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Zixiang Li v. Kerry, 710 F.3d 995, 998 (9th Cir.2013) (citation omitted). “In determining whether dismissal was properly granted, we assume all factual allegations are true and construe them in the light most favorable to the plaintiff.” Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.2003) (citation omitted).
The Fruddens contend that the RGES uniform policy is subject to strict scrutiny review on two separate grounds. First, they argue that because the uniform shirt must contain a written motto, “Tomorrow's Leaders,” the policy unconstitutionally compels speech about leadership. Second, they argue that the uniform policy contains a content-based exemption for “nationally recognized youth organizations, such as Boy Scouts or Girl Scouts, on regular meeting days.” We agree.
The “right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Wooley, 430 U.S. at 714, 97 S.Ct. 1428 (citing W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633–34, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943)); see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ().
The compelled speech doctrine was articulated by the United States Supreme Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178. In that case, the defendant board of education required all students “to participate in the salute honoring the Nation represented by the Flag.” Id. at 626, 63 S.Ct. 1178. While saluting, students were required to recite the Pledge of Allegiance. Id. at 627–29, 63 S.Ct. 1178. The salute and pledge were made a “regular part of the program of activities in the public schools.” Id. at 626 n. 2, 63 S.Ct. 1178.
The plaintiffs sought to enjoin the board of education from enforcing these rules. The plaintiffs' children had been expelled from school and their parents had been prosecuted for “causing delinquency.” Id. at 629–30, 63 S.Ct. 1178. A three judge, district court panel denied the board of education's motion to dismiss and granted the injunction. On direct appeal, the Supreme Court affirmed. Id. at 642, 63 S.Ct. 1178.
The Supreme Court expressed “no doubt that, in connection with the pledges, the flag salute is a form of utterance.” Id. at 632, 63 S.Ct. 1178. Thus, sustaining the compulsory flag salute and pledge would mean that “a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Id. at 634, 63 S.Ct. 1178. In affirming the injunction, the Supreme Court held that “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id. at 642, 63 S.Ct. 1178.
Thirty years later, relying on Barnette, the Supreme Court in Wooley struck down a New Hampshire statute requiring motorists to display license plates embossed with the state motto, “Live Free or Die.” 430...
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