A Ninth Circuit Decision Sends A Message On Public School Student Uniforms

On February 14, 2014, Judge Nguyen of the U.S. Court of Appeals for the Ninth Circuit opined that parents’ First Amendment challenge to a public elementary school’s mandatory student uniform policy must be upheld.

The Ninth Circuit had previously held in Jacobs v. Clark County School District (2008) that a public school’s mandatory uniform policy survived First Amendment scrutiny. But in this more recent case, Frudden v. Pilling, the policy was somewhat different than the policy that had been at issue in Jacobs. Importantly, the uniforms at issue in Frudden bore the words “Tomorrow’s Leaders,” whereas the uniforms at issue in Jacobs bore no words at all.

The school in Frudden imposes penalties upon those students who do not wear its uniform, but there are exemptions to that rule, such as one for students who wear “the uniform of a nationally recognized youth organization such as Boy Scouts or Girl Scouts on regular meeting days.”

Initially, when the Frudden children did not wear their uniforms, the school did nothing about it, from August 29 to September 12 of the school year. Instead of the school uniforms, the Frudden children wore AYSO uniforms to school. (AYSO is an acronym for American Youth Soccer Organization.) Mrs. Frudden told Principal Pilling that her children were complying with the school policy, but the principal retorted that they were not, because they did not have either a meeting or soccer practice that day. The principal then asked the Frudden children to change their clothes, and they did so, donning loaner shirts that Principal Pilling provided to them. The boy, however said he did not want to wear the loaner shirt.

The next day, the Frudden children wore AYSO shirts again. And the day after that, the boy wore his shirt inside-out, so that the logo was not visible. But when called into Principal Pilling’s office, he turned his shirt right-side up, at the principal’s request.

The Fruddens then sued the school. On appeal, the only claim at issue is that which relates to the children’s First Amendment Free Speech claims. In particular, the claim relates to the First Amendment doctrine regarding compelled speech. The court sided with the Fruddens both:

1. When they deemed the students’ wearing the “Tomorrow’s Leaders” logo to be compelled speech; and
2. When they note that the policy at issue is content-based in that it carves out an exception for “nationally recognized youth organizations, such as Boy Scouts and Girl Scouts, on regular meeting days.”

The Relevant Supreme Court Compelled-Speech Precedents

The Supreme Court precedents that the Ninth Circuit judge cited in favor of its ruling for the Fruddens included these:

1. West Virginia State Board of Education v. Barnette, which rejected a mandatory flag salute in the public schools.
2. Wooley v. Maynard, which rejected the New Hampshire mandatory license plate motto “Live Free or Die”,which was against the views of Jehovah’s Witnesses.

Returning to the Fruddens’ case, the Ninth Circuit judge there reasoned that the “Tomorrow’s Leaders” logo is an instance of compelled speech, just as the speech at issue in the Wooley and Barnette cases each were.

In turn, the school’s arguments to the contrary were unpersuasive to the court:

1. The school pointed out that it had not disciplined the Frudden children, but the court found that irrelevant.
2. The school also claimed that it was significant that the children had had alternative ways to disclaim the school motto. But that argument was found to be unpersuasive in the Wooley case, where the Court did not see a solution in having the Jehovah’s Witnesses put their own anti-“Live Free Or Die” bumper stickers next to the state-approved license plate that was against their religion.

In the end, this is a clear compelled-speech case in which the right outcome is very clear: The school needs to junk the motto on the current shirts and start again with shirts that don’t have any text, except perhaps the name of the school itself.