School Uniform Fight May Get Another Shot

     SAN FRANCISCO (CN) – A three-judge panel of the 9th Circuit seemed inclined to revive legal opposition to school uniforms adorned with the image of a gopher.
     “The logic of our argument is that people cannot be required to bear either verbal expression or symbolic expression,” said Eugene Volokh, lawyer for Mary and John Frudden of Reno, Nev.
     The Fruddens objected to a logo depicting a gopher with the words “Tomorrow’s Leaders – Roy Gomm Elementary School” on the red and blue polo shirts that their children were required to wear.
     A majority of parents passed the uniform policy in 2011, and the Fruddens sued the Washoe County School District the next year, alleging a host of civil rights claims.
     At a hearing this week, Volokh likened the case to Wooley v. Maynard from 1977, where the U.S. Supreme Court ruled that New Hampshire could not require its citizenry to display the state motto, “Live Free or Die,” on license plates if they found it offensive to their moral convictions.
     “This case is basically Wooley v. Maynard gone to school,” Volokh said. “Just like in Wooley, the appellants are being required to bear a motto, although in this case, the intrusion is even greater because they have to bear it on their own persons.”
     It was unclear what the Fruddens actually find objectionable about the logo as the District Court’s ruling dismissing the case focused on the school motto, “One Team, One Community,” which does not appear on the uniforms.
     “Although the school logo of ‘one team, one community’ on the uniforms in this case presents a slightly more complex question of compelled-speech and whether the policy is viewpoint – and content-neutral, the court finds that the distinction is not substantial enough to indicate a First Amendment violation,” U.S. District Judge Robert Jones ruled.
     He distinguished the case from Jacobs v. Clark County School District, in which a school dress code prohibited students from wearing shirts with religious messages.
     “The impingement on the students’ First Amendment rights in Jacobs was significantly greater than that alleged in this case, which consists of being forced to wear a uniform with an innocuous school motto and a picture of a gopher,” Jones wrote. “There is no meaningful risk that a bystander would think any of the hundreds of identically dressed young children on the grounds of an elementary school individually chose the motto and/or mascot appearing on their uniforms.”
     At the 9th Circuit hearing, the appellate judges expressed concern that they were trying a different case, and said perhaps they should remand the case to the District Court to deal with the issue of the gopher and “tomorrow’s leaders.”
     “I just can’t imagine what kind of speech a gopher would compel plaintiffs to say,” Judge Jacqueline Nguyen mused.
     Volokh said the case should be remanded, noting that the Fruddens did not object to forcing their children to wear slogans generally.
     “Plaintiffs would be fine with a requirement that there be just a gopher displayed rather than a slogan displayed,” Volokh said, adding, “It may be just a matter of setting up a clear First Amendment rule.”
     After Volokh wrapped up his arguments, Senior U.S. District Judge Gordon Quist, sitting on the panel by designation from the Western District of Michigan, expressed frustration about the District Court’s ruling.
     “Let me tell you what bothers me about the opinion of the District Court,” Quist said. “That is the statement about an innocuous logo, in other words the gopher and tomorrow’s leaders. Are judges now going to be telling schools what is innocuous and what is not? It just puts you into a can of worms.”
     Quist interrupted as attorney Randy Drake began to introduce himself on behalf of the school district. “Wouldn’t the easiest thing be just to block the whole thing?” Quist asked. “I’m not just looking for easy things, but we can’t try cases on what is innocuous. What is innocuous to one person may be very offensive to someone else and very desirable to someone else.”
     Drake said he agreed. “The Wooley case clearly involved an ideological message and the appellant now is trying to make a stretch to make any logo or motto that has little if any communicative message – trying to stretch that into an ideological message. This is not the case to make law, which it looks like the appellant is trying to do.”

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