Jacobs v. Clark County Sch. Dist., No. 05-16434 (9th Cir. May 12, 2008)
In a 2-1 split, the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) has ruled that a Nevada school’s mandatory uniform dress code does not violate students’ First Amendment free speech and free exercise of religion rights, or their Fourteenth Amendment due process rights. Clark County School District (CCSD) created a standard dress code for all CCSD students and established a means by which individual schools could establish more stringent mandatory school uniform policies. These uniform policies were to be established “for the purpose[s] of increasing student achievement, promoting safety, and enhancing a positive school environment.” Liberty High School (LHS) instituted a policy requiring all students to wear “solid khaki colored bottoms and solid-colored polo, tee, or button-down shirts (blue, red, or white) with or without Liberty logos. Several students and their parents filed suit challenging the constitutionality of LHS’s dress code. After the district court granted the students' motion for a preliminary injunction based on the school's failure to adhere to the parental survey requirement in the policy, CCSD eliminated the survey requirement. The court then granted CCSD’s motion for summary judgment. However, the court struck down two provisions in the policy as unconstitutional prior restraint on speech. The first provision grants school administrators unfettered discretion to determine whether wearing the mandatory uniform violates a student's/parent's religious beliefs. The district court found that the provision's lack of set factors and procedures creates a risk that administrators' decisions might be arbitrary and capricious, which would have the effect of favoring one religion over another. The second provision gives administrators authority "to grant exceptions for designated spirit days, special occasions, or special conditions." The court found that this provision fails to ensure that exceptions to the uniform policy would be viewpoint neutral.
The Ninth Circuit affirmed the lower court’s decision, holding that “[n]either CCSD’s [r]egulation nor the individual school uniform policies implemented there-under violate [the students’] free speech, free exercise, or due process rights.” Addressing the free speech issue first, the appeals court broke it down into three separate claims: (1) CCSD’s “school uniform policies (which prohibit students from displaying any printed messages on their clothing save for, in some cases, the school logo) unconstitutionally restrict students’ rights to engage in ‘pure speech’ while in school”; (2) “the uniform policies unconstitutionally restrict students’ rights to engage in expressive conduct”; and (3) “that requiring students to wear a uniform amounts to unconstitutional compelled speech.” The Ninth Circuit conceded that the speech at issue fell into the third category of student speech governed by Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). However, the court determined that speech was not subject to strict scrutiny analysis as the speech in Tinker was because the dress code here involved viewpoint- and content-neutral restrictions on student speech. The court found that the dress code’s allowance for clothing containing school logos did not convert the policy into a “content-based” regulation. It agreed with the district court that just as viewpoint- and content-neutral restrictions on speech outside the school context are subject to intermediate scrutiny, so are such restrictions within the school context. Applying that standard the Ninth Circuit concluded the policies withstand intermediate scrutiny because the “uniform policies limit only one form of student expression (while leaving open many other channels for student communication) and apply during the narrowest possible window consistent with [CCSD’s] goals of creating a productive, distraction-free educational environment for its students, [CCSD’s] uniform policies are a narrowly-tailored way of furthering [CCSD’s] pedagogicalgoals without infringing upon students’ First Amendment rights any more than is necessary to achieve these goals.”
The Ninth Circuit disposed of the compelled speech claim on the ground that the fact students were required to wear the solid-colored tops and bottoms did not force students “to communicate any message whatsoever—much less one expressing support for conformity or community affiliation.” Turning to the free exercise claims, the appeals court disposed of both claims on the ground that both CCSD’s regulation and LHS’s dress code were “valid and neutral law[s] of general applicability” and, as such, did not implicate the Free Exercise Clause at all.” Lastly, it found the due process claim without merit because even if CCSD violated its own regulation by instituting the school uniform policy in the absence of the requisite level of parental involvement, the violation did not amount to a Fourteenth Amendment due process violation because “[i]t has long been recognized that individuals have no due process right to participate in government policymaking.”
The dissent criticized the majority’s opinion stating that it abandoned the analytical framework of Tinker. It stated that “the district court and the majority have imported and imposed a new analytical framework that cannot be reconciled with Supreme Court jurisprudence, or with ours [Ninth Circuit].” It contended: “When issues of speech and other expressive conduct are involved, the Tinker analysis applies, and the governmental action is reviewed in that context. In short, under the Supreme Court’s analytical framework, and under ours, the
initial inquiry is the character of the speech at issue. Only once that has been established do we examine the governmental response.”
Jacobs v. Clark County Sch. Dist., No. 05-16434 (9th Cir. May 12, 2008)
[Editor’s Note: Dress codes often result in controversy and litigation. One California school district suspended enforcement of its dress code while the school sought a legal opinion. See the first link below for a summary of the news story. In addition COSA members can access a summary of the district court’s opinion in Jacobs at the second link below.]
NSBA School Law pages on suspension of dress code
Jacobs v. Clark County Sch. Dist. district court opinion summary