Phoenix Elementary School Dist. No. 1 v. Green, 2

• Decision Date: 27 March 1997
• Docket Number: No. 2,CA-CV,2
• Citation: 943 P.2d 836,189 Ariz. 476
• Parties: , 120 Ed. Law Rep. 1170, 240 Ariz. Adv. Rep. 15 PHOENIX ELEMENTARY SCHOOL DISTRICT NO. 1, Plaintiff/Appellee, v. Candace L. GREEN; William R. Green; Dustin Green; Michael Bowling; Annette M. Ortiz; Analicia M. Ortiz, Defendants/Appellants. 96-0279.
• Court: Arizona Court of Appeals

Page 836

943 P.2d 836

189 Ariz. 476, 120 Ed. Law Rep. 1170, 240 Ariz. Adv. Rep. 15

PHOENIX ELEMENTARY SCHOOL DISTRICT NO. 1, Plaintiff/Appellee, v. Candace L. GREEN; William R. Green; Dustin Green; Michael Bowling; Annette M. Ortiz; Analicia M. Ortiz, Defendants/Appellants.

No. 2 CA-CV 96-0279.

Court of Appeals of Arizona Division 2, Department B.

March 27, 1997.

Review Denied Sept. 16, 1997.

[189 Ariz. 477] Lewis & Roca LLP by Susan M. Freeman, Mary Ellen Simonson and Richard A. Halloran, Phoenix, for Plaintiff/Appellee.

Vernon E. Peltz, Tucson, for Defendants/Appellants.

Thomas W. Pickrell, Phoenix, for Amicus Curiae Arizona School Boards Association, Inc.

OPINION

FLREZ, Judge.

Appellants, two students (Students) and their parents (Parents), appeal from a permanent injunction enjoining them from entering Phoenix Preparatory Academy (the Academy), a public inner-city middle school governed by appellee Phoenix Elementary School District No. 1 (the School District). The trial court issued the injunction after finding that the Academy's mandatory dress code does not violate the First Amendment to the United States Constitution. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1995, the School District enacted a mandatory dress code for students attending the Academy. ¹ The code stated:

Boys: All white shirts with collar. No logos on the shirt. This may be a "Polo" shirt, dress shirt, etc. Navy blue pants or shorts.

Girls: All white collared blouses or "polo" shirt. No logos on the blouse or shirt. Navy blue pants, shorts, or skirt.

The white tops with a collar (polo shirt, oxford type shirt, blouse) may be purchased at any store. The only requirement is that they be all white with no logos of any kind.

The navy blue bottoms (pants, shorts, skirt) may be purchased at J.C. Penney Company ONLY.

Procedures for implementing and enforcing the code included a two-week phase-in and provided for ongoing education about the code's requirements. It also provided:

2. After September 5, 1995, students who fail to comply with the Dress Code shall be advised of the requirements of the Dress Code and offered use of a uniform for the day, and a parent contact shall be made.

3. Students who refuse to comply with the Dress Code shall be given the opportunity to transfer to another school, either within or without the District. The Phoenix Elementary School District No. 1 shall assure such student's admission to another school located within the District.

On September 6, the Students wore clothing that did not comply with the dress code. One wore a T-shirt with a United States flag and logos stating "USA," "I support my country," and "America." The other wore a T-shirt with a picture of Jesus Christ, "Jesus," "True Spirit," and a Bible with the words "The School of Higher Learning." That day, the Parents informed the Academy that the Students would never comply with the dress code, insisting they were entitled to opt out of it, and that enforcement of the code violated the Students' First Amendment right of free speech. Later that day, the School District delivered transfer letters to the Parents, notifying them that the Students had been transferred to another school in the district which did not have a dress code, effective September 7. On September 7, Parents and Students marched onto the Academy's campus, entered the classrooms without permission, and distributed literature to other students disparaging the dress code.

In separate actions, each side sought declaratory and injunctive relief. After consolidating the cases, the trial court conducted a hearing, made extensive findings of fact, and concluded that the mandatory dress code did not offend the First Amendment to the United States Constitution. This appeal followed.

DISCUSSION

We accept the trial court's factual findings unless they are clearly erroneous or not supported by any credible evidence, Imperial Litho/Graphics v. M.J. Enterprises, 152 Ariz. 68, 730 P.2d 245 (App.1986), and review questions of constitutionality de novo. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 917 P.2d 222 (1996); see also Jews for Jesus, Inc. v. Board of Airport Comm'rs of City of Los Angeles, 785 F.2d 791 (9th Cir.1986), judgment aff'd, 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). Relying on Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), and Pendley v. Mingus Union High School District No. 4, 109 Ariz. 18, 504 P.2d 919 (1972), the trial court found that the dress code neither facially nor as applied violated the Students' First Amendment rights to free speech. The court applied the forum analysis of Cornelius because it found that the dress code regulated the medium of expression, not the message. It also found that the Academy is not a public forum and that the dress code is reasonably related to "appropriate matters of concern to the School Board and that the policy itself [was] reasonable." Finally, the court balanced the interests of the Students against the need for the dress code, finding "that the School Board's intent was to provide a mandatory uniform policy which would benefit the student body as a whole" and "the interests of the entire student body outweigh[ed] [the Students'] freedom of expression rights."

Appellants argue that the T-shirts bearing logos expressing religious and political sentiments are protected speech under the First Amendment and are subject to the stringent review of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), instead of the less stringent standard in Cornelius. We find the Tinker analysis inapplicable and agree with the trial court that the Cornelius analysis is appropriate.

In Tinker, the United States Supreme Court overturned the school district's suspension of students who wore black armbands to protest the Vietnam war, finding that the students were suspended because the school officials disagreed with the students' viewpoint. Tinker and its progeny are directed at content-based restrictions on speech. In contrast, the evidence shows the School District's dress code is not intended to restrict speech, but is a content-neutral regulation of student dress that the trial court found furthers reasonable policies and goals of the Academy.

We also agree with the trial court that under the Cornelius standard, the code's content-neutral restrictions do not contravene the First Amendment. In Cornelius, the NAACP Legal Defense and Education Fund and other similar organizations challenged a restriction imposed by executive order which potentially inhibited them from participating in fundraising through the Combined Federal Campaign, a charity drive aimed at federal and military personnel. The restrictions allowed participation only by tax-exempt, nonprofit charitable groups supported by public contributions that provided direct health and welfare services to individuals. The organizations claimed that their threatened exclusion violated their First Amendment right to solicit charitable contributions.

Reversing the appeals court, the United States Supreme Court noted that the First Amendment includes a right to solicit contributions and that the extent to which the government may curtail that right depends upon whether the forum involved is public or nonpublic. Finding that the public workplace is a nonpublic forum, the court held that the government could restrict access "as long as the restrictions are 'reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.' " 473 U.S. at 798, 105 S.Ct. at 3448, 87 L.Ed.2d at 576, quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 803 (1983) (holding teacher's...