Claims of Forced Uniform Speech Revived

(CN) - The 9th Circuit on Friday revived a Nevada couple's First Amendment challenge to a gopher-boasting grammar school uniform, finding that it amounts to compelled speech.

Mary and Jon Frudden had objected to the uniform policy instituted at Roy Gomm Elementary School (RGES) in Reno before it went into effect in 2011, and they filed a federal lawsuit against the school after administrators forced her fifth-grade son and third-grade daughter to change out of their American Youth Soccer Organization (AYSO) uniforms and put on loaner shirts.

The policy requires all students to wear a red or navy polo-style uniform shirt and tan or khaki bottoms. The uniform shirt has the school mascot, a gopher, on its front and the hopeful message "Tomorrow's Leaders" on the back. An exemption to the policy allows students to wear the "uniform of a nationally recognized youth organization" such as the Boy Scouts and Girl Scouts, but only on regular meeting days.

School administrators told the Fruddens that the exemption did not apply to their kids' soccer uniforms because no meeting or practice was scheduled on the day in question.

Though a federal judge dismissed all 16 claims in the complaint, the Fruddens appealed only the First Amendment claim to the 9th Circuit. They claimed that the motto on the uniform shirt improperly compelled speech about leadership. They also argued that the exception for "nationally recognized youth organizations" showed a preference for one group over another.

The federal appeals court reversed on Friday, sending the case back to Reno for the strict scrutiny required for policies that compel or endorse speech.

While the 9th Circuit found school uniforms without mottos or endorsements to be generally constitutional in 2008's Jacobs v. Clark County School District, Roy Gomm Elementary's uniform "mandates written expression," the panel found.

The panel agreed with the Fruddens' contention that the motto conveyed the viewpoint that "leadership should be celebrated" and that "RGES is, in fact, likely to produce" tomorrow's leaders.

Roy Gomm's policy exemption also expressed a certain viewpoint, according to the ruling.

"Similarly, the language of the RGES policy's exemption favors the uniforms of certain youth organizations over all other clothing that the students may choose to wear in the absence of the exemption," Judge Jacqueline Nguyen wrote for the panel. "Further, the exemption explicitly favors the uniforms of the Boy Scouts and Girl Scouts over all other uniforms (e.g., those of the AYSO), and favors the uniforms of 'nationally recognized' youth organizations over those of locally or regionally recognized youth organizations."

Under the tougher standards required on appeal, the school district will now have to present evidence to the District Court that it has compelling justifications for the motto and the limited exemption policy.

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