Frudden v. Pilling

• Decision Date: 11 December 2017
• Docket Number: No. 15-15448,15-15448
• Parties: Jon E. FRUDDEN, as parent and guardian of his minor children John Doe and Jane Doe, Plaintiff-Appellant v. KayAnn PILLING, individually, and in her official capacity as the Principal of Roy Gomm Elementary School and as an executive director of the Roy Gomm Elementary School Parent-Faculty Association, Inc; Roy Gomm Elementary School Parent-Faculty Association, Inc.; Heath Morrison, Ph.D., individually and in his official capacity as the Washoe County School District Superintendent; Lynn Rauh, individually and in her official capacity as the Area Superintendent of the office of School Performance for the Washoe County School District; Washoe County School District, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

877 F.3d 821

Jon E. FRUDDEN, as parent and guardian of his minor children John Doe and Jane Doe, Plaintiff-Appellant

v.KayAnn PILLING, individually, and in her official capacity as the Principal of Roy Gomm Elementary School and as an executive director of the Roy Gomm Elementary School Parent-Faculty Association, Inc; Roy Gomm Elementary School Parent-Faculty Association, Inc.; Heath Morrison, Ph.D., individually and in his official capacity as the Washoe County School District Superintendent; Lynn Rauh, individually and in her official capacity as the Area Superintendent of the office of School Performance for the Washoe County School District; Washoe County School District, Defendants-Appellees

No. 15-15448

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 17, 2017 San Francisco, California

Filed December 11, 2017

Mary Frudden (argued), Reno, Nevada, for Plaintiff-Appellant.

Sara K. Almo (argued), Christopher B. Reich, and Neil A. Rombardo, Washoe County School District, Reno, Nevada, for Defendants-Appellees.

Eugene Volokh (argued), Attorney; Michael Newborn, Melanie Rollins, Sina Safvati, Anjelica Sarmiento and Nicholas Goshgarian, Law Students; Scott & Cyan Banister First Amendment Clinic, UCLA

School of Law, Los Angeles, California, for Amicus Curiae Student Press Law Center.

Before: William A. Fletcher, Julio M. Fuentes,^* and Johnnie B. Rawlinson, Circuit Judges.

W. FLETCHER, Circuit Judge:

In July 2011, Mary and Jon Frudden brought suit against officials and entities associated with the Roy Gomm Elementary School ("RGES") and the Washoe County School District ("WCSD") in Nevada. The Fruddens challenged on First Amendment grounds a school uniform policy that required their two minor children to wear shirts or sweatshirts with a logo consisting of the name of the school, a stylized picture of a gopher (the school mascot), and the motto "Tomorrow’s Leaders." An exemption from the policy allowed students to wear the uniform of a nationally recognized youth organization on regular meeting days of that organization. The district court applied intermediate scrutiny and upheld the RGES uniform policy. In February 2014, a three-judge panel of this court reversed and remanded on the ground that the district court should have analyzed the motto requirement and the exemption under strict, rather than intermediate, scrutiny. Frudden v. Pilling (Frudden II ), 742 F.3d 1199, 1204–05 (9th Cir. 2014).

This case comes before us following the district court’s award on remand of summary judgment against the Fruddens. Defendants-Appellees are KayAnn Pilling, Heath Morrison, and Lynn Rauh ("Individual Defendants"), the Roy Gomm Elementary School Parent-Faculty Association, Inc. ("PFA") and WCSD ("Institutional Defendants"). Jon Frudden is now the sole Plaintiff-Appellant on behalf of his two children. Mary Frudden, an attorney, is now counsel of record. The Frudden children no longer attend RGES, and prospective relief is no longer at issue.

Our three-judge panel disagrees with the three-judge panel that reversed and remanded the district court’s decision in Frudden II . We believe that intermediate rather than strict scrutiny should be applied to the RGES uniform policy. In an attempt to reverse the decision of the first panel, we made a sua sponte en banc call. The call failed to receive a majority vote of the active members of our court.

Given the failure of our en banc call, we consider ourselves bound by the holding of the prior three-judge panel. So bound, we hold that the uniform policy—both the motto requirement and the exemption—violate the First Amendment. We further hold that the Individual Defendants are entitled to qualified immunity because the applicable law was not sufficiently clear to put them on notice that the uniform policy would violate the First Amendment. However, because the Institutional Defendants are not individuals, they are not protected by qualified immunity.

We affirm in part, reverse in part, and remand for further proceedings.

I. Background

In the fall of 2009, the Fruddens' two minor children enrolled at Roy Gomm Elementary School, a K-6 public school in Reno, Nevada. At a welcoming event that fall, WCSD Superintendent Dr. Heath Morrison asked the RGES Parent-Faculty Association ("PFA") to help improve students' test scores. Mimi Butler, President of the PFA, believed that school uniforms would help achieve that goal. Specifically, she believed that school uniforms would help students "learn how to ‘dress for success’ and focus on schoolwork rather than their clothing," and would "help even the playing field for those students who could not afford expensive clothes." RGES Principal KayAnn Pilling shared Butler’s view that a uniform policy would help improve test scores. Pilling believed that uniforms would also help mitigate wealth-based bullying facilitated or encouraged by differences in clothing worn by students at RGES. Among the students Pilling sought to protect were those in a special education program, many of whom participated in a free or reduced-cost lunch program.

With Butler and Pilling’s support, in the spring of 2010 the PFA began discussing the merits of a uniform policy. A proposal for mandatory uniforms failed to garner the necessary two-thirds support of the PFA in May. School officials revived the proposal the following year. At that point, Mary Frudden began attending PFA meetings to express her strong opposition to mandatory school uniforms. Over Mary Frudden’s objections, the PFA approved a mandatory school uniform policy in May 2011.

That same month, RGES mailed to parents a four-page document describing the new uniform policy for the 2011-2012 school year. The document described the policy’s main purpose as "establish[ing] a culture of ‘one team, one community’ " at RGES by "foster[ing] school spirit and unity, as well as a disciplined and safe learning environment." Under the policy, students were required to wear either a red or a navy polo-style shirt or sweatshirt. The shirts and sweatshirts were available for purchase through the school. The shirts cost $7.00 each ($9.00 for XXL); the sweatshirts cost $9.00 each ($11.00 for XXL). The school provided three uniform shirts free of charge "to each enrolled student who is experiencing financial hardship." "Uniform bottoms"—"long pants, capri-length pants, jumpers, skirts, skorts or shorts"—were required to be "khaki or tan in color" and could be purchased "from a location of choice." There were several exemptions from the uniform requirement: (1) "When a student wears a uniform of a nationally recognized youth organization such as Boy Scouts or Girl Scouts on regular meeting days"; (2) "On days designated as ‘free dress/spirit wear’ days"; (3) "Field trips that are designated by specific teachers as ‘free dress’ field trips"; and (4) "When a student is on campus outside of normal school hours." The policy included a system of escalating sanctions to enforce the uniform policy.

Uniform shirts and sweatshirts had a small logo on the front. Written at the bottom of the logo, in capital letters, was "ROY GOMM ELEMENTARY SCHOOL." "ROY GOMM" was in large letters; "ELEMENTARY SCHOOL" was in small letters. In the middle of the logo was a stylized picture of the school mascot, a gopher. The motto "TOMORROW'S LEADERS" was written in small capital letters above the gopher, in an arching semi-circle.

The Frudden children, a third-grade girl and a fifth-grade boy, began the 2011–2012 school year on August 29. Mary and Jon Frudden had filed a pro se suit challenging the uniform policy the month before. For the first two weeks of school, the children did not wear the required uniform. Principal Pilling then sent an e-mail to Mary Frudden:

I am taking another opportunity to try to reach out to you and to establish a cooperative working relationship with you in regards to the uniform issue and your children....

As we come to the end of our second week of school, we are also coming to the end of the grace period for being non-compliant with the uniform dress code policy. It is my greatest desire not to have to follow the outlined steps of our policy in regards to insubordination when dealing with your children next week. I am very fond of your children. I am still hopeful that you will be willing to meet with me and to work out an alternative situation that does not impact your children and put them in a position of having consequences at school....

I am again extending you an invitation to meet with me to discuss the uniform issue. I know that you have not been willing to talk to me in the past, but the situation is now becoming critical in terms of not putting your children in the middle of a situation that will result in consequences for them for being insubordinate if they refuse to wear a uniform next week.

After receiving the email, Mary Frudden sent her children to school wearing American Youth Soccer Organization ("AYSO") uniforms of black shorts and shirts with the AYSO logo on the front. The prior three-judge panel recounted:

AYSO is a nationally recognized youth organization which regularly meets at least Monday through Friday.... 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, ... the Frudden children again wore AYSO uniforms to school. Once again,

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