Monday, December 11, 2017
In its opinion in Frudden v. Pilling, a unanimous Ninth Circuit panel essentially disagrees with itself.
The litigation, begun in 2011, involves a First Amendment challenge to a school uniform policy requiring students to wear shirts or sweatshirts with a logo of the name of the school, the school mascot (a gopher), and the school motto ("Tomorrow's Leaders"). An exemption to the uniform policy allowed students to wear "the uniform of a nationally recognized youth organization" on regular meeting days of that organization.
There was substantial disagreement over the level of First Amendment scrutiny to be applied.
Originally, the district judge applied intermediate scrutiny, and upheld the constitutionality of the school uniform policy. A panel of the Ninth Circuit reversed, holding that the motto required strict scrutiny, and remanded the matter. On remand, the district judge held that the "Tomorrow's Leaders" motto survived strict scrutiny and that other claims were moot, did not merit damages, or there was qualified immunity.
On this second appeal, the new panel expressed its disagreement with strict scrutiny as the applicable standard. It first attempted a sua sponte en banc call, but it did not receive a majority vote of the judges. Then, considering itself "bound by the holding of the prior three-judge panel" it reluctantly held that the uniform policy, both the moot and the exemption, failed strict scrutiny.
The panel concluded that although fostering children's achievement was a compelling interest, the motto "Tomorrow's Leaders" was not narrowly tailored to achieve that interest: a content-neutral motto would hardly lessen the message. As to the exemption for other uniforms, the government interests justifying the exemption - - - consistency with other schools and parental convenience in not having to bring two uniforms - - - were not compelling.
Yet the panel also states, in a subsection entitled "Our Disagreement with the Result We Are Required to Reach," that strict scrutiny is the incorrect standard and that the motto and exemption would pass intermediate scrutiny:
According to the prior panel, the motto “Tomorrow’s Leaders” is subject to strict scrutiny because its viewpoint celebrates leadership at the expense of those who are followers. Anodyne, feel-good statements such as “Tomorrow’s Leaders” are common in public schools. A number of mottos would be subject to strict scrutiny and struck down under the panel’s rationale. What about a motto “We Succeed Together”? Some students are loners. What about “School Pride”? Some students are not proud of their school. What about “Stand Tall”? Some students are short. To subject such mottos to strict scrutiny makes no sense.
If mandatory school uniforms, including a motto “Tomorrow’s Leaders,” are subject only to intermediate scrutiny, we see no reason to subject to strict scrutiny an exemption for uniforms for recognized organizations to which students may belong. To jeopardize such a wide- spread and inoffensive practice similarly makes no sense.
The panel then found that the individual defendants had qualified immunity although the institutional defendants did not, and remanded the case for damages to be assessed against the school district and parent association.
The question of school dress codes, including uniforms, continues to be a vexing one under the First Amendment.