The Ninth Circuit Court of Appeals ruled last week that strict scrutiny should apply to a school uniform that “compels” speech with an emblazoned motto. Roy Gomm Elementary School in Reno, Nevada, instituted a policy in 2011 that would have required students to wear a polo shirt with the phrase “Tomorrow’s Leaders” on the back. An exception provided for uniforms of “nationally recognized youth organizations” if worn on meeting days. Mary and Jon Frudden filed suit, alleging, amongst other claims, a violation of their childrens’ First Amendment right to free expression.
The United States District Court for the District of Nevada dismissed the Fruddens’ First Amendment claim, applying the Ninth Circuit’s rule from Jacobs v. Clark County School District. In Jacobs, the Ninth Circuit upheld a school uniform requirement, noting that “the proper standard for a viewpoint- and content-neutral dress code is intermediate scrutiny: (1) the code must further an important or substantial government interest; (2) the governmental interest must be unrelated to the suppression of free expression; and (3) the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest.” The district court found that the presence of the motto, while “a slightly more complex question of compelled-speech and whether the policy is viewpoint- and content-neutral,” was not so substantial a distinction to rise to the level of a First Amendment violation.
The Ninth Circuit disagreed, holding that requiring children to wear a uniform with the motto “Tomorrow’s Leaders” “compels children to express a particular viewpoint.” Distinguishing Jacobs, where the uniforms featured no “written or verbal expression of any kind,” the court emphasized that the Roy Gomm uniforms “mandate written expression.” The court further found that the “nationally recognized youth organization” uniform exception was content-based, ignoring, for example, locally- or regionally-recognized youth organizations. Both the compelled written expression and content-based exception require a standard of strict scrutiny, and the Ninth Circuit remanded the case back to the District Court. With such a difficult standard to meet, schools considering uniform policies in the Ninth Circuit may want to take note.