A public elementary school’s uniform policy requiring students to wear tops with the motto “Tomorrow’s Leaders” violates the First Amendment, the U.S. Court of Appeals for the Ninth Circuit held Dec. 11.
The court came to the conclusion “reluctantly,” however, because it was bound by circuit precedent to apply a strict standard of review.
Intermediate scrutiny would be appropriate here, because schools are nonpublic fora and school officials can impose reasonable restrictions on student and teacher speech, Judge William A. Fletcher wrote for the court.
The panel asked the full court to hear the case, but the motion failed.
The Fruddens filed the civil rights lawsuit in 2011, and in 2014 the Ninth Circuit held that strict scrutiny applied to the policy.
On remand, the lower court held that the policy survived strict scrutiny because it was narrowly tailored to a compelling state interest.
The Ninth Circuit here didn’t agree.
Although the defendants presented a compelling interest—to avoid bullying arising from differences in socioeconomic backgrounds that clothing reflects—to require students to wear uniforms, the motto “Tomorrow’s Leaders” wasn’t narrowly tailored to serve it, the court said.
But such “feel-good statements” are common in public schools, the court said. The prior ruling, that the motto is subject to strict scrutiny “because its viewpoint celebrates leadership at the expense of those who are followers,” makes “no sense,” it said.
It would subject mottos such as “Stand Tall” to scrutiny because some students are short, the court said.
It sent the case back to the district court to determine damages for the First Amendment violations by the institutional defendants.
Judges Johnnie B. Rawlinson and Julio M. Fuentes, sitting by designation from the Third Circuit, joined the opinion.
Mary Frudden, Reno, Nev., represented her husband, as guardian of their minor children. The Washoe County School District, Reno, Nev., represented the defendants.
The case is Frudden v. Pilling , 2017 BL 442679, 9th Cir., No. 15-15448, 12/11/17 .
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