School Policy Requiring Display of School Motto on Uniforms Was Subject to Strict Scrutiny Under the First Amendment

Category: Client Update
Date: Mar 17, 2015 02:44 PM

In May 2011, Roy Gomm Elementary School ("School") instituted a mandatory uniform policy.  The school required students to wear red or navy polo-style shirts and tan or khaki bottoms.  The front of the shirts stated the School's motto, "Tomorrow's Leaders."  Students who violated the policy were subjected to progressive discipline.  The policy also contained certain exceptions, including an exception for students who wear a uniform of a "nationally recognized youth organization" such as Boy Scouts, on regular meeting days. 

Mary and Jon Frudden had two children who attended the School.  From August 29 to September 12, 2011, the Frudden children did not wear the required uniform.  On September 12, both children wore soccer uniforms issued by the American Youth Soccer Organization (AYSO) and Mary Frudden informed the school principal, KayAnn Pilling, that her children were wearing uniforms that fell within the written exception to the policy.  Pilling told Frudden the exception did not apply because the children had neither a meeting nor soccer practice that day.  The children were forced to change. 

The Fruddens brought suit against the school district, among others, alleging that the mandatory uniform policy violates the children's First Amendment rights.  The district court granted the district's motion to dismiss and the Fruddens appealed.

The Ninth Circuit noted that the First Amendment protects the right to speak freely and the right to refrain from speaking at all.  The Fruddens argued that the RGES uniform policy compels their children to wear a shirt that states "Tomorrow's Leaders," thus forcing them to express a particular viewpoint.  

While the Ninth Circuit has previously held that a school district does not violate the First Amendment by requiring students to wear uniforms, the Court held that the inclusion of the motto "Tomorrow's Leaders" compelled students "to be an instrument" for displaying the RGES motto. 

The Fruddens also argued that the uniform policy was not content-neutral because it contained an exemption for uniforms of a "nationally recognized" youth organization.  The Fruddens argued that the AYSO is such an organization which regularly meets during the week.  The Ninth Circuit agreed and held that RGES's policy favors the uniforms of certain youth organizations over all other clothing the students may choose to wear.  The exemption also favors the uniforms of Boy Scouts or Girl Scouts over other uniforms and favors the uniforms of nationally recognized youth organizations over those of locally or regionally recognized youth organizations. 

Since RGES required students to endorse a particular viewpoint and the exception for nationally recognized youth organizations was content-based, the Ninth Circuit assessed the policy using strict scrutiny standard.  In other words, was the RGES uniform policy narrowly tailored to serve a compelling government interest?  Since the trial court granted the school's motion to dismiss, RGES never had an opportunity to provide evidence to justify whether it had a compelling government interest for the motto or the exception.  Accordingly, the Ninth Circuit reversed and remanded the case back to the trial court.


Liebert Cassidy Whitmore regularly advises educators on First Amendment issues like those involved in Frudden v. Pilling and Dariano v. Morgan Hill School District (see below).  LCW has substantial experience advising on student and faculty member discipline related to speech activities, dress codes, campus time, place, and manner regulations, issues of religious speech and expression, and social media, among other things.  The firm has also achieved litigation victories for clients in this area.  For example, Mary Dowell and David Urban prevailed on appeal in a high-profile student First Amendment case Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010), in which a community college student challenged harassment policies of his District as overbroad. The firm defends educators in free speech and academic freedom actions brought by faculty members and by those who challenge speech regulations on campuses.

Frudden v. Pilling (9th Cir. 2014) ___ F.3d ____ [2014 WL 575957]

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